Allahabad High Court
Vishnu Kumar vs Gopal Prasad on 6 May, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 4
Case :- WRIT - C No. - 25219 of 2013
Petitioner :- Vishnu Kumar
Respondent :- Gopal Prasad
Petitioner Counsel :- Vishal Agrawal,Rajiv Lochan Shukla
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioner.
Respondent instituted O.S. no.315 of 2001 against the petitioner for his eviction before Additional Civil Judge (J.D.) Hathras asserting therein that in the property in dispute petitioner was licencee. The, petitioner filed written statement asserting that he was tenant and not licencee. Additional Civil Judge (J.D.) Hathras decided three issues (no. 1 to 3) in favour of the petitioner through order dated 28.9.2010.
Under issues no. 1 and 2 and it was decided that the defendant petitioner was tenant and not licencee and rate of rent was 250/- month. Thereafter under issue no.3 it was decided that in view of Section 15 of Provincial Small Causes Courts (P.S.C.C.) Act, regular civil court had no jurisdiction to try the suit. Ultimately, plaint was directed to be returned for filing before proper court/J.S.C.C. Against the said order plaintiff respondent filed civil revision no.3 of 2011 Gopal Prasad Vs. Vishnu Kumar A.D.J. Court no.4, Hathras through order dated 5.2.2013 allowed the revision, set aside the order of the trial court dated 28.9.2010 remanded the matter and directed the trial court to pass fresh order giving reasons. The said order has been challenged through this writ petition.
Learned counsel for the petitioner argues that revision was not maintainable against order dated 28.9.2010, (as under Order 43 Rule 1 (a) C.P.C. Misc. appeal against such order is provided) hence the order passed by lower revisional court dated 5.2.2013 is bad in law. In my opinion the main fault in the impugned order of the A.D.J. Court no.4, Hathras is that instead of deciding the matter finally it only remanded the matter. In today's situation of pendency of cases remand must utmost be avoided. Accordingly, I have perused the order dated 28.9.2010. I do not agree with the said order in so far as it has decided issue no.3 regarding bar of the suit under Section 15 of P.S.C.C. Act. It has been held by Full Bench Authority of this court reported in Manzurul Haq vs Hakim Mohsin Ali, AIR 1970 Allahabad 604 that the jurisdiction of the J.S.C.C. is preferential and not exclusive. When there was serious dispute between the parties regarding the status of the petitioner as to whether he was tenant or licencee, there was nothing wrong in filing the suit before regular civil court. Order dated 28.9.2010 passed by the trial court in so far as it has decided issue no.3 against the plaintiff is set aside and it is held that the suit is maintainable before the civil court. Matter is remanded to the trial court to decide the issues no. 4 to 8. Issues no. 1 and 2 have already been decided in favour of the defendant. Issue no. 3 has been decided in favour of the plaintiff through this judgment. All the remaining issues i.e. issues no. 4 to 8 shall be decided by the trial court.
Judgement passed by the lower revisional court dated 5.2.2013 is set aside.
Writ petition is disposed of.
Copy of this order shall positively be filed before the court below on the next date.
Office is also directed to send a copy of this order to the court concerned (Additional civil judge (J.D.) Hathras).
Order Date :- 6.5.2013
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