Allahabad High Court
Abdul Qayyum @ Kallu vs Smt. Mohammad Begum on 6 March, 2025
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:32064
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 10613 of 2023
Petitioner :- Abdul Qayyum @ Kallu
Respondent :- Smt. Mohammad Begum
Counsel for Petitioner :- Piyush Shukla,Pratyush Shukla
Counsel for Respondent :- Manish Tandon
Hon'ble Ajit Kumar,J.
1. This matter is listed under the head of 'top ten cases' meant not to be adjourned and hence taken up.
2. This matter arises out of order passed by the Judge, Small Causes rejecting an application moved by the petitioner under Section 23 of Provincial Small Causes Courts Act for return of plaint which has come to be affirmed by the court sitting in Revision.
3. This Court while entertaining this revision, has passed following order granting interim protection to the petitioner as well on 31.01.2024:
"Supplementary affidavit filed by learned counsel for the petitioner is taken on record.
Heard Shri Piyush Shukla, learned counsel for the petitioner.
Present petition, under Article 227 of the Constitution of India, has been filed for setting aside the order dated 27.2.2023 passed by the Judge, Small Causes Court/District Judge, Kanpur Nagar in SCC Revision No. 85 of 2023 (Abdul Qayyum @ Kallu versus Mohammadi Begum) whereby and whereunder the revision preferred against the order dated 17.11.2022 passed by the Civil Judge (Sr.Div.)/FTC, Kanpur Nagar in SCC Suit No. 81 of 2018 (Smt. Mohammadi Begum versus Abdul Qayyum) rejecting an application moved by the tenant/petitioner under Section 23 of Provisional Small Causes Court Act has been rejected and the order dated 17.11.2022 has been upheld.
Learned counsel for the petitioner submits that the premises in question being House No. 105/655 (old), New No. 105/655-B, Tukaniya Purwa Chauraha, Deputy Ka Parao, Kanpur Nagar is a waqf property of waqf Bashirtun Nisha and the suit filed for eviction of the petitioner from the premises in question under Section 20 (2) (a) of U.P. Act No. 13 of 1972 is not maintainable in view of the exemption contained in Section 2-bbb of the Act and an application under Section 23 was moved, which came to be rejected vide order date 27.4.2019 by stating that the issue raised in the said application was to be decided as an issue after receipt of evidence. A revision preferred against the said order also met with the same fate. The petitioner thereafter is stated to have filed his written statement and subsequently, filed another application under Section 23, which was rejected by the learned Civil Judge (Sr.Div.)/FTC, Kanpur Nagar on the ground that a similar application moved by the tenant/petitioner at earlier point of time had been rejected. The Revisional Court has also upheld the order by stating that the subsequent application was hit by principle of res-judicata.
I have heard learned counsel for the petitioner and have perused the record.
In the opinion of the Court, the initial application of the petitioner under Section 23 was not liable to be rejected vide order dated 27.4.2019 particularly, in view of the fact that the Court noticed that the said application was to be decided after framing an issue and after inviting evidence. Subsequent application moved by the petitioner, after filing of the written statement has been rejected solely on the ground that the earlier application had been rejected and, therefore, the subsequent application was not maintainable.
In both the orders, the application has not been considered on merits and, therefore, in the opinion of the Court, the Revisional Court was not justified in rejecting the application on the ground of res-judicata.
Matter requires consideration.
Issue notice to the respondent, returnable within a month.
Steps be taken within a week.
List on the date mentioned in the notice.
Respondents, if so advised, may file counter affidavit within the said period.
Considering the submission advanced, the further proceeding of SCC Suit No. 81 of 2018 (Smt. Mohammadi Begum versus Abdul Qayyum) pending before Civil Judge (Sr.Div.)/FTC, Kanpur Nagar shall remain stayed till the next date of listing."
4. Sri Manish Tandon, learned counsel for the respondent very fairly concedes that the application under Section 23 of the PSCC Act filed by the petitioner was neither considered on merits on the first occasion, nor it was considered on merits even after the parties exchanged their pleadings and led their evidence.
5. In such circumstances, therefore, the Court is of the considered view that since an application registering as a misc. case filed under Section 23 of the PSCC Act is to get the plaint returned as the title may be involved in the case for which the court of Small Cause will not be a competent court, the said application should to be decided first. Even while the parties had not led evidence the application could have been considered on merits on the basis of exchange of pleadings, but surprisingly enough while the court firstly rejected the application under Section 23 of the Act on the ground that this point could be determined after the exchange of pleadings and parties led their evidence but even then upon the second application moved, the same came to be rejected on the ground that second application was not maintainable on principle of res-judicata.
6. Considering the order passed upon an application under Section 23 of the Act initially, I do not see there to be any order on merits so as to hold that a point has been determined between parties on merits and has become conclusive to bind them as far as the disposal of misc. case is concerned and hence neither the principle of res-judicata nor even constructive res-judicata was attracted in the matter. Thus, order passed by the trial Judge namely the Judge, Small Causes rejecting application under Section 23 of the Act, nor the order passed by the court sitting in revision that affirmed the judgment of the trial court, is sustainable.
7. Both the orders are accordingly set aside.
8. The matter is remitted to the Judge, Small Cause to frame a point of determination qua Section 23 application moved by the petitioner under the Provincial Small Causes Courts Act and determine the same first by giving full opportunity of hearing to the parties and considering the pleadings already filed and evidence already led by the parties. Appropriate decision shall be taken by the Judge, Small Causes upon misc. application within a maximum period of two months of production of certified copy of this order without granting unnecessary adjournment to either of the parties.
9. With the aforesaid observations and directions, this petition stands disposed of.
Order Date :- 6.3.2025
IrfanUddin
