Uttarakhand High Court
WPMS/69/2012 on 27 August, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 27TH DAY OF AUGUST, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 69 of 2012
BETWEEN:
Simant Sahkari Sangh Limited Chamoli. ....Petitioner
(By Mr. Pankaj Purohit, Advocate)
AND:
Taxi Union Chamoli & another. ...Respondents
(By Mr. B.S. Negi, Advocate)
JUDGMENT
By means of this petition under Article 227
of the Constitution of India, petitioner has challenged
the judgment & order dated 21.02.2011 passed by
learned Small Cause Court/Civil Judge (Senior
Division), Chamoli and also the judgment & order
dated 15.09.2011 passed by learned District Judge,
Chamoli in J.S.C.C. Revision No. 04 of 2011.
2. After having lost from both the Courts
below, petitioner has filed this writ petition.
3. Petitioner filed a suit before Small Cause
Court for eviction of the defendants from a kiosk (tin-
shed), by asserting that he had constructed it, next to
his building, standing over the land, which was
allotted to him.
4. Defendant no. 2, in his written statement,
averred that though he had taken the kiosk in
question on rent from petitioner for some time, but, it
was subsequently vacated and, thereafter, he
constructed another tin-shed over Government land,
for which he is facing proceedings under U.P. Public
Premises (Eviction of Unauthorised Occupants) Act,
1972. Thus, respondent no. 2 denied relationship of
landlord-tenant between him and petitioner and
contended that the kiosk, which is now in his
possession, does not belong to petitioner.
5. Learned Small Cause Court vide order dated
21.02.2011 returned the plaint to petitioner, by
invoking Section 23 of Provincial Small Cause Courts
Act, 1887 and held that since dispute, regarding title
over the kiosk is involved in the suit, therefore, it
cannot be decided in summary proceedings under
provisions of the Provincial Small Cause Courts Act,
1887.
6. Petitioner filed revision under Section 25 of
the aforesaid Act, which was dismissed by learned
District Judge, Chamoli vide judgment dated
15.09.2011. Feeling, aggrieved by the judgment &
orders passed by learned Courts below, petitioner has
filed this writ petition.
7. Heard learned counsel for the parties and
perused the record.
8. Section 23(1) of the Provincial Small Cause
Courts Act, 1887, reads as under:
"23. Return of plaints in suits involving
questions of title.--
(1) Notwithstanding anything in the
foregoing portion of this Act, when the
right of a plaintiff and the relief
claimed by him in a Court of Small
Causes depend upon the proof or
disproof of a title to immovable
property or other title which such a
Court cannot finally determine, the
Court may at any stage of the
proceedings return the plaint to be
presented to a Court having
jurisdiction to determine the title.
(2) When a Court returns a plaint
under sub-section (1), it shall comply
with the provisions of the second
paragraph of section 57 of the Code of
Civil Procedure (14 of 1882), and
make such order with respect to costs
as it deems just, and the Court shall
for the purposes of the Indian
Limitation Act, 1877 (15 of 1877), be
deemed to have been unable to
entertain the suit by reason of a cause
of a nature like to that of defect of
jurisdiction."
9. A perusal of Section 23(1) of the aforesaid
Act makes it abundantly clear that the power vested
under the said provision in the Court is discretionary.
It is to be exercised only when the relief claimed by
the plaintiff in the proceedings before the Small Cause
Court depends upon the proof or disproof of title to
the immovable property and the relief sought, cannot
be granted without determination of question
regarding title.
10. Law on the point is settled that although,
question of title over the property is not germane for
decision of the eviction suit and in such a suit, the
question of title, if disputed, may incidentally be gone
into, in connection with the primary question for
determining the main question about the relationship
between litigating parties. In L.I.C. v. India
Automobiles and Company, reported in (1990) 4 SCC
286, Hon'ble Supreme Court observed that in a suit
for eviction between landlord and tenant, the court
will take only a prima facie decision on the collateral
issue as to whether the applicant was landlord. If the
Court finds existence of relationship of landlord and
tenant between the parties it will have to pass a
decree, in accordance with law. It was further
observed by Hon'ble Apex Court that all that the
Court has to do is to satisfy itself that the person
seeking eviction is landlord, who has prima facie right
to receive the rent of the property in question and in
order to decide whether denial of landlord's title by
the tenant is bona fide, the Court may have to go into
tenant's contention on the issue, but the Court is not
to decide the question of title finally, as the Court has
to see whether the tenant's denial of title of the
landlord is bona fide in the circumstances of the case.
11. In the present case, petitioner filed a suit
for eviction alleging that he had let out the kiosk in
question to the respondent, while, respondent took up
the plea that he had vacated the kiosk, which was let
out by petitioner to him and now he is occupying
another kiosk, which he constructed over Government
land, next to the building of the petitioner. Thus, a
question regarding title over the kiosk in possession
of the respondents arose and the relief sought by the
petitioner could not be granted, without determination
of question of title.
12. In other words, for the purpose of granting
relief, claimed by the petitioner in his suit, it was
absolutely necessary for the Small Cause Court to
determine finally the title to the property, which could
not have been determined in the summary
proceedings under the aforesaid Act.
13. In such view of the matter, this Court does
not find any infirmity in the judgments rendered by
learned Courts below.
14. Since learned Judge, Small Cause Court has
exercised his discretion vested upon him under
Section 23(1) of Provincial Small Cause Courts Act,
1887 in a judicious manner and learned District Judge
rightly dismissed the revision of the petitioner,
therefore, this Court does not find any reason to
interfere with the judgments impugned in this writ
petition.
15. Accordingly, the writ petition fails and is
dismissed.
16. There will be no order as to costs.
(MANOJ KUMAR TIWARI, J.)
Arpan
