Smt. Chander Kala & Ors. vs Banarasi Das
2010 Latest Caselaw 1200 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              C.R.P. 250-54/2006

                                           Date of decision : 03.03.2010
IN THE MATTER OF :
SMT. CHANDER KALA & ORS.                        ..... Petitioners
                                     Through : Mr. K.K. Mehrotra, Adv.

                     versus

BANARASI DAS                                 ..... Respondent
                                     Through : Mr. Jagjeet Singh, Adv.

  CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                Yes

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be
        reported in the Digest?                        Yes

HIMA KOHLI, J. (ORAL)

1. The present petition is directed against an order dated

23.5.2006 passed by the Judge Small Cause Court, in a suit for

recovery of Rs.1,311/- filed by the petitioners (plaintiffs in the court

below) claiming arrears of rent, with pendent lite and future interest @

12% per annum, till realization and costs. By the impugned order,

the aforesaid suit was dismissed as not maintainable by holding that

there was no relationship of landlord and tenant between the parties

and consequently, there was no question of any rent being payable by

the respondent (defendant in the court below).

2. The main ground urged by the counsel for the petitioners

to assail the impugned order is that while passing the order, the court

below went beyond the scope of the relief sought by the petitioners in

the plaint, which was confined to the claim of payment of arrears of

rent by the respondent. He submits that in his reply to the legal notice

dated 28.2.2004, addressed by the petitioners, the respondent had

stated that a sum of Rs.1,212/- had been sent towards the alleged

arrears of rent and hence there was no dispute with regard to the

payment, or the relationship of landlord and tenant between the

parties. He submits that in these circumstances, the court ought not

to have returned any contrary findings on the said issue as the said

stand taken by the respondent/defendant was not in consonance with

his reply to the legal notice. It is also stated that the issue of

ownership of the subject premises was also not in controversy before

the court below.

3. A perusal of the impugned order shows that the

respondent/defendant did not dispute the receipt of notice issued by

the petitioners/plaintiffs or the reply given thereto by him. The

respondent/defendant also admitted that an amount of Rs.1,212/- was

forwarded to the petitioners/plaintiffs by money order without

prejudice to his rights, but the said money order was returned with a

report that nobody by the name of the petitioner No.1 was available in

the premises. However, the respondent/defendant disputed the

ownership of the petitioners/plaintiffs, in respect of the suit premises

and claimed that he had become the owner thereof by adverse

possession.

4. Section 15 of the Provincial Small Cause Courts Act, 1887

prohibits the Court of Small Causes to take cognizance of the suits

specified in the Second Schedule, which includes a suit for

determination or enforcement of any other right to or interest in an

immovable property. Hence, the plea of adverse possession, though

raised by the respondent/defendant, could not have been gone into by

the court below. Further, Section 23 of the Act vests a discretion in

the Court of Small Causes to return the plaint in appropriate cases

where intricate questions of title might have to be decided, for being

presented to a Court having jurisdiction to determine the title.

5. A perusal of the impugned order shows that no issues were

framed before the matter was taken to trial. Counsels for the parties

also confirm the said position. The entire object of framing of issues

under Order XIV Rule 1 of CPC is to ascertain the material propositions

of fact or of law on which the parties are at variance so as to

determine the scope of trial, narrow down the area of conflict and

confine the evidence to the matters in controversy between the

parties. [Refer: Makhan Lal Bangal vs. Manas Bhunia reported as

(2001) 2 SCC 652]. Section 17 of the Act makes the procedure

prescribed in the Code of Civil Procedure, applicable to proceedings

filed in the Court of Small Causes. Therefore, nothing prohibits the said

court from framing issues on contentious issues.(Refer: Central India

Motors, Bhopal vs. G.P. Shrivastava & Anr. reported as AIR 1956

Bhopal 9). In fact, framing of issues narrows down the points in

dispute to be determined in the suit.

6. Counsel for the petitioners states that due to bonafide

inadvertence, on their part, the petitioners filed a wrong rent deed

before the court below, which pertained to three rooms in the subject

premises let out to a third party, and as a result of which, the

impugned order came to be passed. He requests that the matter be

remanded back to the trial court with permission to the petitioners to

place on the record the correct rent deed, carbon duplicate copy of

which has now been enclosed with CM No.11744/2006.

7. In view of the fact that the aforesaid document is essential

for the court below to determine the point in controversy in the suit

and considering the submission of the counsel for the petitioners that

on account of bonafide error on their part, the said document was not

filed and instead, a wrong rent deed, which did not pertain to the

subject premises, came to be filed, the present revision petition is

disposed of by setting aside the impugned judgment and remanding

the matter back to the concerned court. The petitioners are permitted

to place on record the rent deed dated 8.6.1990. Admission/denial of

the said document shall be undertaken and thereafter, if considered

necessary, the court shall frame relevant issues for determination of

the suit.

8. Considering the fact that the impugned judgment came to

be passed on account of an error on the part of the petitioners, they

shall pay litigation costs of Rs.10,000/- to the respondent within two

weeks and in any case on or before the next date of hearing fixed

before the Judge Small Cause Court . The present petition is disposed

of.

9. The parties shall appear before the concerned Court on 5 th

April, 2010 for further proceedings. Trial court record be released by

the Registry.

10. A copy of this order be forwarded forthwith to the

concerned court for perusal and compliance.

(HIMA KOHLI) JUDGE MARCH 03, 2010 sk