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Ram Saran v. D.J. - WRIT - A No. 30603 of 1993  RD-AH 2080 (24 August 2005)
Court No. 32.
Writ Petition No. 30603 of 1993
Ram Saran Petitioner
VIIIth Addl. District Judge,
Kanpur Nagar & another Respondents
Hon. Vikram Nath,
This petition has been filed against the judgment and order dated 17.05.1993 passed by VIII Additional District Judge, Kanpur Nagar in Civil Revision No. 154 of 1992, whereby the revision has been allowed and the matter remanded to the Trial Court for fresh disposal.
I have heard Sri A.K. Sachan, learned counsel for the petitioner.
Despite the fact that the cause list has been revised no one has appeared for the respondents, even though the name of Sri P.N. Khare, Advocate is printed in the cause list. I have perused the writ petition and also counter affidavit filed by the respondent.
The land lord petitioner filed Small Cause Suit No. 121 of 1986 for recovery of arrears of rent and eviction of the tenant-respondent. Written statement was filed by the tenant-respondent denying the title of the landlord petitioner. Subsequently, application 15C was filed by the tenant-respondent to return the plaint under Section 23 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as the 1887 Act) on the ground that there was bona fide dispute of title and Small Causes Court would not have jurisdiction to try the suit.
Both the parties led evidence in support of the pleadings. The Trial Court vide judgment dated 20.07.1992 decreed the suit of the land lord-petitioner holding that there existed landlord -tenant relationship between the plaintiff and the defendant and further that there was default on the part of the tenant in payment of rent. Aggrieved by the said order, a revision under Section 25 of the 1887 Act was filed by the defendant which was registered as Misc. Revision No. 154 of 1992. The revisional Court allowed the revision vide judgment dated 17.05.1993 and remanded the matter to the trial Court only on the ground that the application 15C with regard to return of the plaint under Section 23 of the 1887 Act had not been decided as a preliminary objection before final hearing of the case. Aggrieved by the said judgment the land lord has preferred this petition.
The Contention of Sri A.K. Sachan, learned counsel for the petitioner is that the revisional Court has not recorded any finding with regard to any denial of opportunity to the tenant on account of the Trial Court dealing with both the issues together. It is further contended that there is no bar in any law, which could preclude the Trial Court from deciding both the points together.
The question whether relationship of landlord and tenant exists or whether the plaint was liable to be returned under Section 23 of the 1887 Act are mixed questions of law and fact and the Trial Court had rightly exercised its discretion to finally decide the suit in question after taking evidence of both sides as provided under Order 14 Rule 2 of the C.P.C. It is only if a preliminary question or issue which would be a pure question of law and not involving any disputed question of fact could be decided as preliminary issues is only to facilitate saving of time in recording evidence etc. Therefore, I do not find any justification for remanding the matter to the Trial Court until unless it was found that the finding recorded by the Trial Court was not in accordance with law. Merely because all the issues have been decided together cannot be a ground to remand the matter for deciding any objection as a preliminary issue which undisputedly is a question involving both law and facts. The revisional Court has not recorded any finding regarding any prejudice having been caused to the defendant-tenant on account of the fact that both the issues were decided together.
In view of the above the petition succeeds and is allowed. The impugned judgment dated 17.05.1993 is set aside and judgment and decree of the Trial Court dated 20.07.1992 is hereby, rejected. There shall however be no order as to costs.
Vk. updh. (118)
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