M/S Reptakos Brett Company ... vs M/S Utkarsh Granite Private ...
2022 Latest Caselaw 1163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 01.04.2022
 
Delivered on 12.04.2022
 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 203 of 2021
 

 
Appellant :- M/S Reptakos Brett Company Limited
 
Respondent :- M/S Utkarsh Granite Private Limited
 
Counsel for Appellant :- Pankaj Agarwal, ,Akash Deep Srivastava
 
Counsel for Respondent :- K.M. Tripathi,Krishna Mohan Tripathi,Sunil Kumar
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. This second appeal filed under Section 100 of Code of Civil Procedure arises out of judgment and decree dated 21.12.2020 passed in Civil Appeal No.91 of 2017 and Civil Appeal No.99 of 2017 arising out of judgment and decree dated 22.8.2017 passed by Additional Civil Judge (Senior Division)/ Additional Chief Metropolitan Magistrate, Court No.6, Kanpur Nagar in Original Suit No.382 of 2007.

2. The facts in nutshell is that plaintiff-respondent, which is a Company incorporated under the provisions of Indian Companies Act, 1956 (hereinafter referred to as "Act, 1956") having its registered office at 8/21, Arya Nagar, Kanpur Nagar, purchased property No.97, Cantt. The Mall, Kanpur Nagar through registered sale deed on 08.9.1993 from one Murrey & Company. The said premises was let out on 25.5.1964 for a period of five years by Murrey & Company Pvt. Ltd. to the defendant-appellant and it consist of showroom measuring 1740 Sq.ft., Store Room 82 Sq.ft., one room 813 Sq.ft., Drawing Room 1084 Sq.ft., a godown 1660 sq.ft., and a washroom 145 sq.ft., total area 6134 sq.ft. The monthly rent being Rs.3,818.75 along with 5% house tax and 6% water tax, total amount Rs.4,248.36.

3. According to the plaint, the tenancy of the appellant was terminated by notice dated 25.01.2007. When the premises in question was not vacated within 30 days of the date of service of notice, Original Suit No.382 of 2007 was filed for eviction. The defendant also contested the suit and filed written statement and stated that the plaintiff had not submitted and filed any documentary evidence in support of his ownership. It was also stated that another litigation was pending against the appellant initiated by the plaintiff wherein eviction has been stayed by this Court. The Trial Court framed following issues :

"1. क्या मकान नम्बर 97 कैंट कानपुर से वादी प्रतिवादी को बेदखल कर उसका कब्ज़ा प्राप्त करने का हक़दार है?

2. क्या वादी ने वाद का मूल्यांकन कम किया है एवं प्रदत्त न्यायशुल्क अपर्याप्त है?

3. क्या दावा वादी आदेश 7 नियम 3 सी0पी0सी0 से बाधित है?

4. क्या वादी किसी अन्य अनुतोष को प्राप्त करने का अधिकारी है?"

4. Issue No.1 was in regard to whether the plaintiff had right to evict the defendant from the premises No.97, Cantt. Kanpur. The Trial Court found that the lease, which was executed in May, 1964 in favour of the appellant, was only for a period of five years and after expiry of the time as the lease deed was not extended, the defendant continued as a licensee and after termination of tenancy by notice dated 25.01.2007, the defendant had no right over the property which measured 1740 sq.ft.

5. The suit was partly decreed in favour of the plaintiff on 22.8.2017. Against the said judgment, two civil appeals were preferred, one being Civil Appeal No.91 of 2017 by the plaintiff-respondent and another Civil Appeal No.99 of 2017 by the present appellant. The lower Appellate Court framed following points of determination :

"1. क्या विद्वान विचारण न्यायालय द्वारा साक्ष्य का वाद मूल्यांकन कर वादी को आंशिक रूप से आज्ञप्ति किये जाने विषयक आदेश सही नहीं था तथा क्या वाद वादी पूर्ण रूप से आज्ञप्ति किये जाने योग्य है?

2. क्या प्रतिवादी / प्रत्युत्तरदाता के कथनानुसार सिविल न्यायालय के वाद विचारण हेतु क्षेत्राधिकार नहीं था?

3. क्या वाद विधिक रूप से पोषणीय है?"

6. Point No.2 was in regard to the fact whether the Trial Court had jurisdiction to try the suit. The lower Appellant Court recorded finding that as the earlier suit filed by the plaintiff before the Judge Small Causes Court, which was decreed against the appellant and revision is pending, was for arrears of rent and ejectment while the present suit was filed for eviction. On the basis of the said finding, the lower Appellant Court vide judgment dated 21.12.2020 decreed the suit of the plaintiff-respondent in entirety by allowing the appeal of the respondent and dismissing the appeal of the defendant-appellant hence the present appeal.

7. Through this appeal, following substantial questions of law has been raised, which are as under :

(i) Whether the suit instituted by the plaintiff- respondent herein was barred by IInd Schedule (4) of Section 15 of the Provincial Small Causes Court Act, 1887 and thus ought to have been dismissed?

(ii) Whether once in view of Section 15 of the Provincial Small Causes Court Act, 1887 the suit for eviction of a tenant from a building after determining lease is cognizable by Judge Small Causes Court alone taking away the jurisdiction of civil court to try the suit of such nature and thus the present suit before the regular civil court was not maintainable and ought to have been dismissed?

(iii) Whether once the tile of the plaintiff is under cloud and the sale deed executed in his favour is in violation of injunction order passed in Original Suit No.649 of 1993, then in such a situation the present suit instituted by plaintiff was not maintainable for lack of title and thus should have been dismissed?

8. Sri Pankaj Agarwal, appellant's counsel submitted that the suit filed by the plaintiff was barred by Article 4 of Second Schedule of the Section 15 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887") and thus the suit ought to be dismissed. According to him, once the suit for eviction of a tenant from a building after determining his lease is to be filed, it is before the Small Causes Court and not before the Civil Court as the jurisdiction of Civil Court to try such case is specifically barred by Article 4 of the Second Schedule of Section 15 of the Act, 1887. He next contended that plaintiff had already instituted a suit for arrears of rent and ejectment against the defendant, which was decreed by the Judge Small Causes Court against which a revision under Section 25 of the Act, 1887 is pending before this Court. According to him, once the dispute was in regard to tenancy of the premises, the Civil Court ought not to have tried the suit. He next tried to submit that the sale deed of the year 1993, alleged to be executed by Ashok Kumar Newatiya, one of the Directors of Murry & Company, was in fact executed during operation of an injunction order granted on 14.05.1993 in Original Suit No.166 of 1993 between Ajanta Services Pvt. Ltd. and Murrey & Company Pvt. Ltd., wherein restraint order was passed against Ashok Kumar Nawetiya, who had executed the sale deed in favour of present plaintiff-respondent. He placed before the Court judgment of Apex Court in case of Devasahayam (Dead) by LRs. vs. P. Savithramma and Ors. (2005)7 SCC 653 paras 42 and 43 of which is quoted hereas under :

"42. It is now well settled that a decree passed by a court having no jurisdiction is a nullity. The civil court had no jurisdiction to pass a decree for eviction only on the basis that the tenant had denied their title. The matter might have been different if the civil court had otherwise jurisdiction to entertain a suit. The legislature has created new rights and liabilities for both the landlord and tenant in terms of the provisions of the said Act and provided a forum therefor. The jurisdiction of the civil court having been barred except in a situation where the proviso appended to sub-section (1) of Section 10 would be attracted, the civil court had no jurisdiction to entertain a suit for eviction on a ground envisaged under Section 10(2)(vi) of the A.P. Buildings (Lease, Rent and Eviction) Control Act. The civil court, thus, had no jurisdiction to entertain the counterclaim.

43. In Kiran Singh v. Chaman Paswan AIR 1954 SC 340 it was stated : (SCR p. 121)

"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."

9. He next contended that the plea of jurisdiction can be raised at any stage, though in the appeal filed the question of jurisdiction was raised by the appellants. He placed before the Court judgment of Apex Court in case of Saurav Jain and Another vs. A.B.P. Design and Another 2021 SCC OnLine SC 552. Relevant paras 30, 31, 32, 33 and 34 of the judgment read as under :

30. The applicability of the principle in Order XLI Rule 22 CPC to proceedings before this Court under Article 136 of the Constitution was considered by a Constitution Bench in the decision in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji AIR 1965 SC 669. Justice JR Mudholkar overruled the judgment of the three judge bench in Vashist Narain Sharma v. Dev Chandra (1955) 1 SCR 509 which had rejected the argument of the respondent that a party could raise arguments on the ''findings' that were against him, while supporting the judgment. It was held that Order XLI Rule 22 of the CPC does not have application to an appeal under Article 136. In Ramanbhai Ashabhai Patel(supra), this Court held that the provisions of Order XLI Rule 22 of the CPC are not applicable to the Supreme Court and the rules of the Supreme Court do not provide for any analogous provisions. However, it was held that this deficiency must be supplemented by drawing from CPC:

"18. [...] Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order [4]1 Rule 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. [...]"

(emphasis supplied)

31. Expanding on this further, a two judge Bench (Justice R.C Lahoti speaking for himself and Justice Brijesh Kumar) of this Court in Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214, observed:

"35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel [Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, AIR 1965 SC 669, Northern Railway Coop. Credit Society Ltd.[Northern Railway Coop. Credit Society Ltd. v. Industrial Tribunal,AIR 1967 SC 1182 and Bharat Kala Bhandar (P) Ltd. [Bharat Kala Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, AIR 1966 SC 249. The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words ''person aggrieved'. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman (2002) 6 SCC 1 and also Banarsi v. Ram Phal (2003) 9 SCC 606. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed." (emphasis supplied)

32. On a perusal of the above authorities, it is evident that the principle stipulated in Order XLI Rule 22 of CPC can be applied to petitions under Article 136 of the Constitution because of this Court's wide powers to do justice under Article 142 of the Constitution. Since the principle in Order XLI Rule 22 of the CPC furthers the cause of justice by providing the party other than the ''aggrieved party' to raise any adverse findings against them, this Court can draw colour from Order XLI Rule 22 CPC and permit objections to findings.

33. From the above it has been established that it not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection. In the present case, we note that the appellant had raised an objection to the jurisdiction of the Trial Court for entertaining the suit on the ground that an injunction and declaratory relief could not have been given. Although the Trial Court passed a decree in favour of the appellant, it had decided against the appellant on the question of jurisdiction. This finding was not challenged by the appellant before the High Court in the form of a memorandum of cross-objection. The judgment of the High Court makes no mention that a plea of lack of jurisdiction was taken by either the appellant or the MDA. Before this Court, the appellant has not filed the counter-affidavit it had filed before the High Court. Thus, the conclusion that emanates from the record before us is that the ground of jurisdiction was only raised by the appellant before the Trial Court and not before the High Court. In effect then, this Court would have to adjudicate on a plea, which did not form a part of the decision of the High Court in challenge before us.

34. With regard to new grounds being raised before this Court in a special leave petition under Article 136, we note that under Order 21 Rule 3(c) of the Supreme Court Rules 2013, SLPs are to be confined to the pleadings before the court whose order is challenged. However, with the leave of the Court, additional grounds can be urged at the time of the hearing."

10. He then placed before the Court the Constitution Bench judgment of Apex Court in case of Dhulabhai and others vs. State of Madhya Pradesh and others AIR 1969 SC 78 wherein the Apex Court has laid down the test to determine the jurisdiction of the Civil Court. Relevant para 32 of the judgment is extracted hereas under :

"32. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 752 = (AIR 1964 SC 22) or Kamla Mills, 1966 (1) SCR 64 = (AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:

(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."

11. In case of The Competent Authority Calcutta and Ors. vs. David Mantosh and Ors. (2020) 12 SCC 542, following the Constitution Bench judgment held as under :

"35. The three principal issues, which arise for consideration in these appeals, are:

35.1. First, whether the High Court was justified in holding that the civil court has the jurisdiction to try the civil suit in relation to the suit property which was subjected to ceiling proceedings under the Act.

35.2. Second, whether the civil court has jurisdiction to declare the ceiling proceedings under the Act as void and not binding on the plaintiffs even though the same had attained finality in the first round of litigation up to this Court.

35.3. Third, whether the High Court was justified in holding that the plaintiffs are the owners of the suit property and entitled to claim possession of the suit property or its value from the appellant M/s Apollo Gleneagles Hospitals."

"43. The entire scheme of the Act set out above would make two things clear. First, the Act is a self-contained code in itself, which provides complete machinery while dealing with the rights of the landowners in relation to their lands, which are in excess of the ceiling limits prescribed under the Act. It also provides adequate remedies to correct all kinds of errors committed by the competent authority under the Act; and second, the Act gives finality to the orders passed by the appellate authority under Section 33, and also provides a bar to file the civil suits in relation to cases falling under Section 30(5) and Section 40 of the Act.

44. The Constitution Bench of this Court in Dhulabhai v. State of M.P.[Dhulabhai v. State of M.P., AIR 1969 SC 78] examined the question as to when the jurisdiction of the civil court can be held to have been expressly or impliedly excluded in trying a civil suit in the context of Section 9 of the Code of Civil Procedure, 1908."

"46. In the light of the tests laid down in Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78] and further keeping in view the scheme of the Act, we have to examine the issue as to whether the jurisdiction of the civil court is expressly or impliedly excluded in trying the civil suit in relation to matters arising out of the Act in question and second, whether the civil court has the jurisdiction to declare the proceedings held under the Act, as being void.

47. Having examined the issue, we are clearly of the opinion that the present case falls under clause (1) of para 32 of Dhulabhai [Dhulabhai v. State of M.P., AIR 1969 SC 78] and satisfies the test laid down therein. Hence, the jurisdiction of the civil court is held to be excluded by implication to try the civil suit in question. This we say for the following reasons:

47.1. First, the Act in question gives finality to the orders passed by the appellate authority [refer to Section 33(3)].

47.2. Second, the Act provides adequate remedies in the nature of appeals, such as first appeal to the Tribunal and second appeal to the High Court [refer to Sections 12(4), 13 and 33(1)].

47.3. Third, the Act is a complete code in itself and gives overriding powers on other laws (refer to Section 42).

47.4. Fourth, the Act expressly excludes the jurisdiction of the civil court in relation to the cases falling under Sections 30 and 40 [refer to Section 30(5) and Section 40].

47.5. Fifth, as a result of dismissal of writ petition and SLP, it is held therein that the proceedings under the Act in question were done in conformity with the Act in question."

12. Sri K.M. Tripathi, learned counsel for respondent submitted that the lease, which was granted in favour of the appellant, came to an end in the year 1969 and thereafter the appellant continued as a licensee. According to him, the rights of a licensee is not same as of a lessee and after determining the tenancy by notice dated 25.01.2007, the suit for eviction was filed and the Court below had rightly decreed the suit of the plaintiff. According to him, Article 4 of Second Schedule to Section 15 was not attracted as Article 4 provides for jurisdiction of Small Causes Court only in case a suit is filed by a lessor for eviction of a lessee from a building after determining his lease, and for recovery from him of compensation for the use and occupation of that building after such determination of lease.

13. In the suit filed by the plaintiff, no such recovery of compensation was sought and it was a suit determining the tenancy. In fact, the lease had come to an end in the year 1969 and the defendant-appellant was continuing as a licensee. He then placed before the Court the decision of Full Bench of this Court in case of Manzurul Haq and another vs. Hakim Mohsin Al, AIR 1970 Allahabad 604. Relevant paras 1, 15, 17, 18, 22 and 52 read as under :

"1. In this civil revision the only question that requires consideration is whether the decision given by a court of small causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the court of Munsif for the recovery of arrears of rent for a different period and for ejectment."

"15. It has now to be considered whether the court of small causes is a court of exclusive jurisdiction, so that it can be said that the proceeding before the court is not a civil suit."

"17. It has been contended that the Court of Small Causes, and no other court, can take cognizance of a suit triable by a court of small causes in the area for which such court of small causes has been appointed.

18. In my opinion there is no force in this contention. The scheme of the Provincial Small Cause Courts Act is that out of the civil suits triable by regular courts all suits of a civil nature, not excepted from the cognizance of a court of small causes of which the value does not exceed Rs. 1000/- shall be cognizable by a court of small causes, and by no other court. Where courts of small causes have not been established in any area, all civil suits for that area which could have been tried by a court of small causes will have to be tried by an ordinary court of Munsif as a regular suit. It is, therefore, obvious that the court of Munsif does not lose initial jurisdiction of suits of a civil nature of which the value does not exceed Rs. 1,000/-. However, it is not allowed to exercise that jurisdiction in an area where courts of small causes have been established in all civil suits of less than Rs. 1,000/- in valuation."

"22. The marginal heading of Sec. 16 of the Provincial Small Cause Courts Act shows that the court of small causes exercises exclusive jurisdiction. The meaning of the word "exclusive" in that heading is ambiguous. From a reading of Sec. 16 of the said Act it is clear that the court of small causes is merely a court of preferential and not of exclusive jurisdiction."

"52. Therefore, having given my careful thought to the relevant provisions of law and to the cases cited at the bar, I feel inclined to take the view that the Court of Small Causes is not a Court of exclusive jurisdiction. I am thus in total agreement with my brother Khare, J. on point no. 1."

14. He then submitted that defendant-appellant had not raised the issue of jurisdiction in his written statement and has waived his right and continued to contest the matter before the Civil Court. Reliance has been placed upon decision of Calcutta High Court in case of Taher Ali Khan vs. Abdul Hakim and Ors. AIR 2006 Calcutta 124.

15. Heard Sri Pankaj Agarwal, learned counsel for the appellant, Sri Krishna Mohan Tripathi, learned counsel for the respondent and perused the material on record.

16. This appeal raised two substantial questions of law, which are inter-linked as to whether the suit instituted by the plaintiff-respondent was barred by Article 4 of Second Schedule to Section 15 of Act, 1887, and thus the suit filed be dismissed, and, the suit filed for eviction of a tenant from a building after determining lease is cognizable by Judge Small Cause Court and not by Civil Court.

17. Before proceeding to decide the case on merits, a cursory glance of provisions of Section 15 alongwith Article 4 of Second Schedule of the Act, 1887 with Uttar Pradesh Amendment, are extracted hereas under :

"15. Cognizance of suits by Courts of Small Causes.--(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 thousand rupees shall be cognizable by a Court of Small Causes.

Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty-five thousand rupees."

"THE SECOND SCHEDULE

"(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation.- For the purpose of this Article, the expression ''building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-huses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."

18. Section 15 of the Act, 1887 provides that suits specified in Second Schedule are not cognizable by the Court of Small Cause. Article 4 of Second Schedule to Section 15, in the U.P. Amendment, which was made effective from 20.09.1972, provides that a suit for possession of immoveable property or for recovery of an interest in such property is not maintainable before a Judge Small Cause Court. But suit by a lessor for eviction of a lessee from his building after determining of his lease and for recovery for use and occupation of that building after such determination of lease is maintainable before the Judge Small Cause Court.

19. The explanation to Article 4 further defines as to what is a ''building'. A ''building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.

20. In the present case, the plaintiff while terminating the tenancy of the defendant-appellant has given notice through his counsel on 25.01.2007 wherein, in para 7 it was specifically stated that the tenancy is terminated of the tenanted portion. Thereafter, in the suit filed for eviction, the plaintiff-respondent had made a case that the lease which was granted in the year 1964 came to an end after 5 years and appellant's possession was unauthorized over the premises. The suit was also filed on the ground of terminating tenancy of the defendant. In the written statement, the appellant has come up with the plea that earlier also a notice was given which was replied and legal action was initiated which has resulted in litigation which is pending before this Court.

21. The Trial Court on the basis of lease deed of 1964 held the appellant to be a licensee over the portion of 1740 Sq.ft. of the premises 97 Cantt., Kanpur Nagar and ordered for eviction. The lower Appellate Court while dealing with question No.2, which was framed in regard to the jurisdiction of Civil Court, recorded a very cryptic finding that as the earlier litigation filed by the plaintiff before the Judge Small Causes Court was for arrears of rent and eviction, the present suit being only for eviction was maintainable.

22. It is a settled law that the issue of jurisdiction can be raised at any stage and the argument raised at the behest of respondent's counsel is totally misconceived that appellant, for the first time, has raised this issue before this Court. In Saurav Jain and Another (supra), the Apex Court in categorical terms relying upon earlier judgment of Apex Court held that it can be allowed even at the stage of Supreme Court though not raised before the Courts below. Moreover, the jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it ousted where it is.

23. The argument of Sri Tripathi that once the parties had acquiesced and litigated before the Civil Court, they waived their right to raise such question before this Court. In Kali Das Wadhwani and Ors. vs. Jagjiwan Das and Ors. 1985 (2) ARC 533, this Court held as under :

"18. It is well settled that a jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is, Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity. See Chandra Bhushan Khanna v. Brij Nandan Singh, AIR 1978 Alld. 459 and Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.

19. The above-mentioned principle, in my opinion, would not be applicable to a case where the jurisdiction of the Court depends upon the determination of certain facts. In the instant case, in view of Article 4 of the Second Schedule of the Act, it is clear that the suit, which would be cognizable by the Judge, Small Causes Court, would be only that suit, which is a suit by the lessor for the eviction of a lessee from the building. The two necessary ingredients required are, firstly, that the suit should be by a lessor for eviction of a lessee and, secondly, that it must be a suit relating to a building. In a case where a dispute has been raised whether the property in respect of which the suit has been filed by the lessor for eviction of a lessee is in relation to a building or not, the jurisdiction of the Court would be dependent upon the determination of the question whether the property in dispute is a building. In the parties agree at a certain stage of the proceedings that the suit relates to a building then. In that event, they cannot be permitted to blow not and cold in the same breadth and later urge that the suit does not relate to a building. In the instant case, initially, the revisionists urged that the suit was in relation to a building. The evidence was brought on the record to the same effect. The learned Counsel for the plaintiff opposite party finding that the suit would relate to a building, ultimately, agreed with the revisionists and permitted the case to be transferred to a Court of the Judge, Small Causes. The revisionists are now estopped, in law, in my opinion from urging that the suit does not relate to a building and, as such. It is not cognizable by the Court of Judge, Small Causes.

20. It is true that once the suit relates to a property, which is not a building, there would be inherent lack of jurisdiction in the Court of the Judge, Small Causes. I, consequently, accept the contention raised by the learned Counsel for the opposite party that the revisionist is estopped from challenging that the suit does not relate to a building and, as such, the decree passed by the Court is without jurisdiction. The contention, consequently, raised by the learned Counsel for the revisionists is, in my opinion, without substance: firstly, for the reason that the revisionist is estopped from taking the plea now that the suit does not relate to a building, and, secondly, from the facts, it is clear that the suit relates to a building."

24. The defendant-appellant in his appeal before the Court below had taken ground that after the term of the lease came to an end, he continued as licensee in the tenanted accommodation and after enforcement of the U.P. Act No.13 of 1972, in view of Section 14 therof, he became the tenant of Murry & Company Pvt. Ltd. and continued to pay the rent till 1990. Thus, the question of treating the defendant as licensee by the Trial Court was wrong and the Appellate Court should have remanded back the matter or instead have decided the issue as to the jurisdiction of Civil Court once it framed the point of determination and should have recorded a specific finding as to how the suit was maintainable before the Civil Court and not before Judge Small Causes Court.

25. The reliance placed upon Full Bench judgment of this Court in case of Manzurul Haq and another (supra) is of the year 1970 whereafter Article 4 of Second Schedule was amended in the year 1972. Moreover, the Full Bench had not considered the Constitution Bench judgment of Apex Court in case of Dhulabhai and others (supra) wherein the Apex Court had laid down the guidelines to determine the jurisdiction of Civil Court.

26. I find that lower Appellate Court had totally failed to record any finding as to the jurisdiction of Civil Court after framing points of determination and simplicitor held that the suit filed by the plaintiff-respondent was for eviction and the earlier suit filed by the same plaintiff was for arrears of rent and eviction which was before the Judge Small Cause Court, the present proceedings were maintainable. The lower Appellant Court totally failed to consider and record finding as to the status of the appellant, whether after 1969, he continued as a licensee or became a tenant after the Act No.13 of 1972 came into effect and his tenancy was saved by section 14 thereof.

27. This Court finds that the lower Appellate Court without recording any finding as to the jurisdiction of Civil Court, which goes to the root of the matter, in a cursory manner held that the Civil Court had jurisdiction to try the case and not the Judge Small Causes Court.

28. Having considered the substantial questions of law raised in the appeal, though the appeal was not admitted on the said question of law, this Court finds that the lower Appellate Court has not dealt with the issue of jurisdiction regarding maintainability of suit before the Civil Court by recording in depth finding, this Court remands the matter to the lower Appellant Court on the point of determination framed by the lower Appellate Court as to the jurisdiction of Civil Court.

29. The lower Appellate Court shall also consider the applicability of Article 4 of Second Schedule of Section 15 of the Act, 1887 as well as any benefit can be extended in view of Section 14 of the Act No.13 of 1972. The lower Appellate Court shall record its finding within next six months from the date of remand after hearing both the parties strictly in accordance with law.

30. Judgment and decree dated 21.12.2020 is hereby set aside to the extent indicated above.

31. For a period of six months, the parties are directed to maintain status quo over the property in dispute.

32. The second appeal stands partly allowed.

Order Date :- 12.4.2022

Kushal