Allahabad High Court

Mohammad Zaid vs Ram Gopal And 7 Others on 26 October, 2017

Bench: Sunita Agarwal




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved.
 
Reportable.
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3623 of 2017
 

 
Petitioner :- Mohammad Zaid
 
Respondent :- Ram Gopal And 7 Others
 
Counsel for Petitioner :- Ramanand Pandey,Pradeep Narayan Pandey
 
Counsel for Respondent :- Ashutosh Pandey
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri Ramanand Pandey, learned counsel for the petitioner and Shri Shashi Prakash Mishra holding brief of Shri Ashutosh Pandey, learned counsel for the respondents.

The present petition is directed against the judgment and orders dated 14.10.2016 and 6.2.2017 passed by the Civil Judge (Junior Division), FTC, Basti and the District Judge, Basti in Original Suit No.285 of 1988 (Chandra Kala v. Md. Zaid) and Civil Revision No. 9 of 2017 (Md. Zaid v. Chandra Kala Devi & Ors.); respectively.

The dispute being raised in the present petition is with regard to the jurisdiction of the Civil Court to entertain and try the suit filed in the year, 1988 for eviction of the defendant and recovery of arrears of rent.

It is vehemently urged by the learned counsel for the petitioner that the said suit could not be entertained and cannot be tried by the Civil Court in view of Section 15(1) of the Provincial Small Cause Courts, Act, 1887 (hereinafter referred to as the 'Act 1887') which clearly provides the jurisdiction of the Court of Small Causes. The Courts below had erred in rejecting the application raising question of jurisdiction of the Civil Court on the ground that the said plea was raised at a belated stage. It is contended that the issue of jurisdiction is purely legal in nature and can be raised at any stage of the proceedings, even before the Executing Court as the decree passed by a Court lacking in jurisdiction would be null and void since its inception.

Learned counsel for the contesting respondents/plaintiffs, on the other hand, submits that the issue of jurisdiction dealt with by the Courts below does not require any interference in the present petition inasmuch as, the Civil Court cannot be said to be lacking in jurisdiction to try the matter of civil nature in its plenary power under Section 9 of the Code of Civil Procedure, 1908. He further submits that the relief of demolition of illegal constructions raised by the defendant could not have been granted by the Small Causes Court as it would be beyond its jurisdiction, and as such there is no defect of jurisidiction.

Reliance is placed upon the judgment of Apex Court in Gangabai Vs. Chhabubai reported in 1982 (1) SCC 4, Full Bench decision of this Court in Manzurul Haq Vs. Hakim Moshin Ali reported in 1970 AIR (All) 604, judgment of learned Single Judges in Abdul Hamid Vs. IIIrd Additional District Judge, Mainpuri reported in 2000 (1) AWC 276 and Radha Devi Vs. Special Judge Ghazipur & Ors., reported in 2013 (2) ADJ 299 to substantiate that the jurisdiction of Civil Court to try a Suit of Small Causes Court nature is not barred and the decree passed in such a suit will not be null and void.

In rejoinder, learned counsel for the petitioner, vehemently submits that in District Basti, the Small Causes Court had been constituted and was operating at the time of filing of the suit. In view of the exclusive nature of the jurisdiction of the Courts of Small Causes to try a suit between landlord and tenant, it was incumbent upon the Civil Court to return the plaint for fresh presentation in the Competent Court of jurisdiction i.e. Small Causes Court. It is urged that the ratio of the judgments relied by learned counsel for the petitioner are not applicable in the facts of the present case inasmuch as, on the date of filing of the eviction suit, the Small Causes Court was available in District Basti.

Heard learned counsel for the parties and perused the record. Though the issue of jurisdiction of the Civil Court to try the eviction suit with the relief of arrears of rent is purely legal in nature, however, few facts of the instant case are relevant to be noted before the Court dwell on the said issue.

The suit for eviction and arrears of rent was filed by the plaintiffs-respondents in the year, 1988 pleading therein that the defendant/petitioner had materially altered the nature of the rented property. Further, since June 1987, he did not tender the rent. The tenancy was terminated vide valid notice dated 7.8.1987 which was duly served upon the defendant. The suit was contested by the defendant-petitioner by filing a written statement on 13.12.1988 raising a plea of jurisdiction that the suit was beyond the limits of jurisdiction of the Civil Court. It appears that the suit had proceeded and issues were framed by the trial Court on 31.1.1989. Issue no.5 had been framed on the question of jurisdiction of the Civil Court. It was proceeded to the stage of evidence when the defence of the defendant/petitioner was struck off on 4.9.2008.

The order dated 4.9.2008 was challenged by the petitioner in a revision before the District Judge, Basti filed on 17.10.2008 which was dismissed on 28.5.2014. The Petition under Article 227 No. 5678 of 2015 (Md. Zaid v. Ram Gopal & Ors.) is stated to have been filed by the petitioner which is pending consideration.

At this stage, on 26.10.2015, the defendant-petitioner moved an application Paper No.211Ga2 with the request to the trial Court to decide Issue No.5 relating to the jurisdiction first and then to proceed with the suit. This application had been rejected by the trial Court vide judgment and order dated 14.10.2016 which was challenged in revision, dismissed on 6.2.2017 and hence this petition.

Now, it would be apposite to go through the relevant provisions of the Code of Civil Procedure, 1908 and the Provincial Small Cause Courts Act, 1887 and the legal position regarding jurisidiction of Civil Court vis-a-vis Small Causes Court. Under Section 9 of the Code of Civil Procedure, 1908, the jurisdiction of the Civil Court with regard to a particular matter can be said to be excluded if there is an express statutory provision in this regard or by implication it can be inferred that the jurisdiction is taken away. Otherwise, all suits of Civil nature can be tried by the Civil Court.

The Small Causes Courts under the Provincial Small Cause Courts Act, 1887 have been established and conferred with jurisdiction to try the suits of civil nature by adopting summary procedure of trial with a view to secure an expeditious disposal and to curtail the lengthy procedure of litigation. The final orders passed by the Small Causes Courts are revisable under Section 25 of the Act, 1887. The procedure prescribed in the Code of Civil Procedure is to be followed by a Court of Small Causes in a suit cognizable by it or in all proceedings arising out of such suits. However, strict rules of evidence are not applicable. The evidence before the Small Causes Courts are accepted on the affidavits of the parties as intricate questions of title to immovable property cannot be tried by the Small Causes Court. Section 15(1) of the Act, 1887 which defines jurisdiction of the Small Causes Court reads as under:-

"15. (1). A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes.

Section 16 further reads as under :-

"16. Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."

The question whether the jurisdiction of Civil Court is barred to try a suit of the nature of Small Causes and whether a decree passed by the Civil Court will be null and void came up for consideration before a co-ordinate Bench of this Court in Abdul Hamid (supra). Taking note of the language of Sections 15(1) of the Act, 1887 and Section 9 of the Code of Civil Procedure as also the effect of amendment by U.P. Civil Laws (Amendment) Act, 1972 and a Full Bench of this Court in Manzurul Haq (supra), it was held therein that the Small Causes Court are Courts of preferential jurisdiction and not of exclusive jurisdiction. Though, the legislature provides that suits for possession based on the contract of tenancy of the building between lessor and lessee can be tried by the Small Causes Court but it does not exclude the jurisdiction of Civil Court to try such a case as a regular suit and the decree passed by the Civil Court in such matter will be valid and not a nullity.

In a recent decision in Radha Devi (supra), the same view was taken by another co-ordinate Bench of this Court. The Full Bench in Manzurul Haq (Supra) was dealing with the issue as to whether the decision of the Small Causes Court in a suit for arrears of rent will operate as res-judicata in a suit later filed in the Civil Court for recovery of arrears of rent for a different period and for ejectment. While dealing with the said question, Jagmohan Lal Sinha, J speaking for the majority framed the question as to whether the Courts of Small Causes created under the Act, 1887, are Courts of exclusive jurisdiction or they are Courts of preferential jurisdiction and answered the same with reference to Sections 15 and 16 of the Act 1887, in Paragraphs 39, 40, 41 and 42 as under:-

"(39). My brother Khare, J. in his proposed judgment has already made a reference to the different provisions contained in the Provincial Small Cause Courts Act and to the relevant decisions to make out that a court of Small Causes is not a court of exclusive jurisdiction, but that it is only a court of preferential jurisdiction. Brother Tripathi, J. has, however, arrived at a contrary conclusion and reliance for that purpose has been placed by him particularly on Sections 15 and 16 of the Provincial Small Cause Courts Act. Section 15 reads thus:

"15. (1). A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order."

(40). A perusal of the section, as reproduced above, would show that it is only an enabling provision and not a disabling provision. In other words, it only says that a Court of Small Causes shall have the jurisdiction to take cognizance of all suits of the nature specified in Sub-clause (2) thereof. It does not say that no other court shall have jurisdiction to take cognizance of such suits. Therefore, so far as Section 15 is concerned, in my view, it cannot form the basis of an argument that a Court of Small Causes is a court of exclusive jurisdiction.

(41). Section 16 of the Provincial Small Cause Courts Act reads thus:

(42). Now, a perusal of Section 16 of the Provincial Small Cause Courts Act, as reproduced above, would show that it starts with the words "Save as expressly provided by this Act or by any other enactment for the time being in force". The effect of the above words occurring in Section 16 is that a court other than a Court of Small Causes can also take cognizance of a suit cognizable by a Court of Small Causes if any provision contained in the Provincial Small Cause Courts Act or in any other enactment for the time being in force permits it. Further, as has been pointed out by my brother Khare, J., in places where no Courts of Small Causes exist, the ordinary civil courts shall have the jurisdiction to take cognizance of the suits specified in Section 15(2) of the Act. "

Thus, from the discussion made above, it is clear that the Civil Court does not lack jurisdiction to try the Suit of Small Causes nature in its plenary power under Section 9 of the Code of Civil Procedure.

Having said so, it would be relevant to refer to the facts of the instant case as noted above. The instant suit was being contested by the defendant/petitioner's predecessor and only after his evidence was struck off and the revision filed against the said order of the trial Court was dismissed, the legal representative of the contesting defendant filed an application asking the trial Court to firstly decide the issue of jurisdiction. The said issue No.5 has been decided by the trial Court considering the decision of this Court in Radha Devi (supra) with the observation that even if the defence is struck off, the jurisdictional plea raised by the defendant can be decided. The Revisional Court has affirmed the order of the trial Court with the observation that jurisdiction of Small Causes Court being preferential jurisdiction, the regular Civil Court will not lose its jurisdiction as the powers of the Civil Court are of plenary nature under Section 9 C.P.C. and all kinds of suits of civil nature can be tried by it unless jurisdiction of the Civil Court is barrred either expressly or impliedly. As there is no exclusion of the jurisdiction of the Civil Court under the Act, 1887, it cannot be said to be lacking in jurisdiction to try the suit. There is no error in the decisions of the Civil Court on the legal principles, noted above.

For the above discussion, this Court does not find any error in the order of the trial Court in deciding issue No.5.

There is yet another aspect of the matter. The question of jurisdiction to entertain and try the suit relates to the date of institution of the suit. The rights of the parties had been crystallized on the said date and would be referable to the law applicable on the date of filing of the suit which will continue to apply until the suit is decided or adjudicated. Any change in the legal provision during the pendency of the suit would not take away the jurisdiction of the Civil Court to try a validly instituted suit. In order to oust the jurisdiction of Civil Court, there must be a specific provision in the Act taking away the jurisdiction of the Civil Court in respect to those cases also, which were validly instituted before the date of enforcement of such provision with respect to the area etc. Reference may be made to the judgment of this Court in Rajender Bansal v. Bhuru reported in (2017) 4 SCC 202.

However, it is not known as to whether on the date of institution of the instant suit, the Court of Small Cause in District Basti exercising jurisdiction in such matters was existing. The petitioner does not make any specific assertion in this regard in the petition. For the above reason also, it cannot be said that the Civil Judge (Junior Division) was lacking in jurisdiction to try the validly insitituted suit of Civil nature.

However, in view of the submission of the learned counsel for the petitioner that a Competent Court of Small Causes is operating in District Basti, looking to the object for which the Small Causes Courts have been established, it is provided that in an area where a Court of Small Causes exercises jurisdiction i.e. the Court of preferential jurisdiction is available, the suit for arrears of rent upto its pecuniary jurisdiction shall have to be filed and tried in the Court of Small Causes and not in the ordinary Court of Civil jurisdiction. However, in absence of the Court of Small Causes, the Civil Court will have a jurisdiction to entertain and decide such suit.

Further, the Court of Small Causes and the Court of Civil Judge (Junior Division) are subordinate to the District Court. Under Section 24 of the Code of Civil Procedure, the District Judge has power to transfer the case from the Court of Civil Judge (Junior Division) to the Court of Small Causes.

It is, therefore, kept open for the defendant/petitioner to move an application under Section 24 C.P.C. before the District Judge to transfer the suit in the Court exercising the jurisdiction of Small Causes Court. In case such an application is filed, the District Judge, Basti shall pass an order, in accordance with law, and in case of any transfer, the suit shall be tried further from the stage upto which it had been tried by the Court of Civil Judge (Junior Division).

In any case, the observations made hereinabove, would not be treated as a direction to transfer the suit and it is kept open for the District Judge to pass an order on the application under Section 24 C.P.C. independently, in accordance with law.

Subject to the above observations and directions, the present petition is disposed of.

(Sunita Agarwal, J.)

Order Date :- 26.10.2017

Jyotsana