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RAM CHANDRA versus VI A.D.J.,VARANASI & OTHERS

High Court of Judicature at Allahabad

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Ram Chandra v. Vi A.D.J.,Varanasi & Others - WRIT - A No. 16409 of 1996 [2005] RD-AH 6736 (1 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Reserved

1.Civil Misc. Writ Petition No.16409/1996

Ram Chandra Lal          Vs.    VI Addl. District Judge, Varanasi

2. Civil Misc. Writ Petition No. 29225 of 1999

Ram Chandra Lal          Vs.    District Judge, Varanasi

3. Civil Misc. Writ Petition No.43295 of 2001

Ram Chandra Lal          Vs.    IInd Addl. District Judge, Varanasi

.....

Hon'ble Vikram Nath J.

Writ Petition No. 16409 of 1996 is directed against the judgment and orders dated 2.11.1994 (Annexure-2 to the petition) and 12.4.1996 (Annexure-1 to the petition) whereby the Small Causes Suit No. 157 of 1989 filed by Smt. Geeta Devi respondent no.3 for recovery of arrears of rent and ejectment of the petitioner has been decreed and the Civil Rent Revision No. 249 of 1994, Ram Chandra Lal Vs. Smt. Geeta Devi against the judgment dated 2.11.1994 has been dismissed.

Writ Petition No. 29225 of 1999, has been filed for quashing the orders dated 4.6.1999 (Annexure-1 to the petition) and 15.3.1999 (Annexure-2 to the petition) whereby the Rent Control & Eviction Officer allowed the release application of Smt. Geeta Devi under section 16(1)(b) of  U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 1972 Act) and rejected the  application of release filed by the petitioner Ram Chandra and further the revision against the same filed by Sri Ram Chandra has also been dismissed.

Writ Petition No. 43295 of 2001 has been filed for quashing  the order dated 20.9.2001 passed by IInd Addl. District Judge, Varanasi (Annexure-1 to the petition) whereby the ex-parte decree in Original Suit No. 639 of 1980, dated 25.10.1995 was set aside and the trial court was directed to decide the suit on merits after affording opportunity to both the parties.

The contesting parties in all the three writ petitions are only Ram Chandra Lal the petitioner in all the three petitions and Smt. Geeta Devi (one of the respondent in all three petitions). Rest of the parties even though different in all the three petitions but are not contesting.

The facts giving rise to all the three writ petitions are also inter connected and therefore, these petitions are being decided together.

The dispute relates to house No. A-13/127 Muhalla Ghasiari Tola, Adampur, Varanasi. Ram Chandra Lal petitioner is alleged to be the tenant of the ground floor room and part of the  upper story portion of the said house. The original owner and landlord of the house in dispute was Sita Ram. Vide sale deed dated 17.11.1970 the house in dispute was purchased by Smt. Saraswati Devi wife of Shyam Sundar. It is not in dispute that Shyam Sundar and petitioner Ram Chandra Lal are real brothers being sons of late Shiv Nandan. Smt. Saraswati Devi by means of sale deed dated 7.6.1977 sold the house in dispute in favour of Smt. Kalawati Devi wife of Kashi Nath Yadav.

Ram Chandra Lal petitioner filed Original Suit No. 639 of 1980 claiming relief of declaration to the extent that he was owner of half share in the house in dispute as the purchase made on 17.11.1970 had been obtained by him as Karta of the family in the name of his brother's wife (Smt. Saraswati Devi). In the said suit Smt. Saraswati Devi, Shyam Sundar, Smt. Kalawati Devi and Kashi Nath Yadav were impleaded as defendants.

During the pendency of the said suit Smt. Kalawati Devi executed a sale deed on  18.5.1987 in favour of Smt. Geeta Devi the contesting respondent in all the petitions. After having purchased the house in dispute Smt. Geeta Devi filed Small Causes Suit No. 157 of 1989 against Ram Chandra Lal for recovery of arrears of rent and ejectment. After contest by Ram Chandra Lal, the trial court decreed the suit of Smt. Geeta  Devi for recovery of arrears of rent and ejectment vide judgment dated 2.11.1994. Against the same, Ram Chandra Lal filed revision under section 25 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as 1887 Act), which was registered as Rent Revision No. 249 of 1994. The revisional Court vide judgment dated 12.4.1996 dismissed the revision of the petitioner and affirmed the decree for arrears of rent and ejectment. Aggrieved by the same the first writ petition being Writ Petition No. 16409 of 1996 was filed.

Despite the sale deed in favour of Smt. Geeta Devi and suit for arrears of rent and ejectment filed by her having been decreed on 2.11.1994, Ram Chandra Lal did not implead Smt.Geeta Devi in Original Suit No. 639 of 1980. The suit was decreed on 25.10.1995 holding that Ram Chandra Lal was the owner of the half share of the house in dispute. Smt. Geeta Devi applied for setting aside the ex-parte decree dated 25.10.1995, which was registered as Misc. Case No. 34 of 1997. Smt. Geeta Devi also filed an application for condonation of delay, which was supported by affidavit also. It would be relevant to mention here that judgment dated 25.10.1995 was an ex-parte judgment against all the defendants impleaded in the suit which included the brother of petitioner Ram Chandra Lal, the brother's wife and subsequent purchaser. The restoration application filed by Smt. Geeta Devi on 5.2.1997 and the delay condonation application both were opposed by the petitioner Ram Chandra Lal. However, the trial court vide order dated 25.10.1997 allowed the application for condonation of delay, against which Ram Chandra Lal filed Civil Revision No. 270 of 1997. The revisional Court allowed the revision vide order dated 13.5.1998 and remanded the case to the trial court for reconsideration of the delay condonation application. Pursuant to the remand, the trial court vide order dated 17.8.2000 rejected the application for condonation of delay and consequently also the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. Against the said order Smt. Geeta Devi filed Civil Revision No. 125 of 2000. The IInd Addl. District Judge, Varanasi vide judgment dated 20.9.2001 allowed the Civil Revision No. 125 of 2000 and after allowing the application for condonation of delay and setting aside the ex parte decree dated 25.10.1995 directed the parties to appear before the trial court and further directed the trial court to decide the suit on merits after affording opportunity to the parties. Aggrieved by the said judgment Ram Chandra Lal filed Writ Petition No.43295 of 2001. From the record of the writ petition it is apparent that there is no interim order and the trial court proceeded with the suit and dismissed the same on merits vide judgment dated 16.8.2002. Further against the said judgment and decree Ram Chandra Lal preferred restoration and appeal. The appeal was registered as Civil Appeal No. 77 of 2003. The appellate court vide judgment dated 19.4.2004 allowed the appeal and remanded the matter to the trial court for decision on merits. The suit is thus still pending after 24 years.

Smt. Geeta Devi in the mean time also applied for declaration of vacancy and also for release of a portion of the house in dispute which was in the tenancy of Smt. Saraswati Devi as after her death the said room had been illegally and unauthorizedly occupied by the petitioner Ram Chandra Lal who was a tenant of a different portion in the house in dispute. It was alleged in the release application that Smt. Saraswati Devi had left no heirs and as such the premises in her occupation had fallen vacant under Section 12 of 1972 Act and that the petitioner was in need of the same. Before Rent Control & Eviction Officer Ram Chandra Lal appeared and also filed an application for release on the ground that he was owner of half share of the house in dispute. The Rent Control &  Eviction Officer after considering the material on record vide order dated 15.3.1999 held that Smt. Geeta Devi was the owner and accordingly allowed her application and at the same time rejected the application of release filed by Ram Chandra Lal. Aggrieved by this order Ram Chandra Lal filed Rent Revision No. 11 of 1999. The District Judge, Varanasi vide judgment dated 4.6.1999 dismissed the revision. Aggrieved by these two orders Ram Chandra Lal has filed Writ Petition No. 29225 of 1999.

I have heard Sri Ajai Kumar Singh, learned counsel for the petitioner in all the three writ petitions and Sri M.S. Haq learned counsel for the respondent Smt. Geeta Devi in all the three writ petitions.

Learned counsel for the petitioner while referring to Writ Petition No. 16409 of 1996 has contended that there being bonafide dispute of title involved as such the plaint of SCC Suit No. 157 of 1989 was liable to be returned for presentation before appropriate court in view of the provisions contained in Section 23 of 1887 Act. In order to appreciate the controversy Section 23 of 1887 Act is quoted hereunder:

23. Return of plaints in suit 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 and make such order with respect of costs as it deems just, and the Court shall, for purposes of the Indian Limitation Act,1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like that of defect of jurisdiction.

 This section gives power to Small Causes Court to return the plaint for being presented before a Court having jurisdiction to determine the title in the event it is satisfied that when the right of the plaintiff and the relief claimed by him depends upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine.

The power so vested under section 23 of  1887 Act is not to be exercised in a mechanical manner and the Judge Small Causes is not bound to return the plaint merely because the tenant has raised the dispute with regard to the title. The word used is title depending upon proof or disproof with regard to the immovable property. The Judge Small Causes can very well examine as to whether there is a real dispute with regard to title which it cannot decide either incidentally or prima facie and only then it may return the plaint while exercising power under section 23 of 1887 Act.

Leaned counsel for the petitioner has relied upon the following judgments for the proposition that the Court below committed an error in not returning the plaint under section 23 of 1887 Act and therefore, the impugned orders are liable to be set aside.

(1) 1999(1) ARC 582 Smt.Sughra Begum V. Additional District Judge XIIIth,       Lucknow and others

(2) 2000(2) ARC 41 Pratap Singh  V. Ixth Additional District Judge, Fatehpur   and others

(3) 1983 ARC 179 Virendra Prasad Shukla V. Ram Swarup and others

(4) 1988(2) ARC 260(SC) Budhu Mal Vs. Mahabir Prasad and others

(5) 1994(1) ARC 280 Jiya Lal   v.  Xith Addl.District  Judge,Meerut and others

(6) 1984(1) ARC 506  Smt. Krishna Devi v. District Judge, Mathura and others

In the present case there is no dispute to the fact that property in dispute was purchased exclusively in the name of Smt. Saraswati Devi in 1970. She thereafter vide sale deed dated 7.6.1977 sold the house in dispute in favour of Smt. Kalawati Devi and thereafter Smt. Kalawati Devi vide sale deed dated 18.5.1987 transferred the entire house in dispute in favour of Smt. Geeta Devi the contesting respondent. The petitioner is admittedly the brother of Shyam Sundar husband of Smt. Saraswati Devi. He did not set up any claim till 1977 when the property was sold to Smt. Kalawati Devi and it was only thereafter in the year 1980 that he filed Original Suit No. 639 of 1980 claiming half share in the house in dispute. The said suit even though was not contested but was kept pending for 14 years and thereafter in the year 1994 an amendment was sought in the plaint claiming full ownership of the house on the basis of a family settlement alleged to have been arrived at in the year 1978, prior to the filing of the suit in the year 1980.

The Judge Small Causes decreed the suit of Smt. Geeta Devi for arrears of rent and ejectment on 02.11.1994 when admittedly Ram Chandra Lal had neither been declared to be the owner of either half share or of the entire house in dispute. Before the revisional Court Ram Chandra had filed the judgment of the trial court in Original Suit No. 639 of 1980 and the same was also considered by the Revisional Court but it came to the conclusion that as Ram Chandra despite having full knowledge of the sale deed in favour of Smt. Geeta Devi had not impleaded her and further  that there was collusion  between the parties to the suit ignored the same and dismissed the revision. The Revisional Court has recorded specific finding that Ram Chandra had been taking different, contradictory and inconsistent stands through out the litigation in Original Suit No. 639 of 1980 and as such there did not appear to be any bonafide dispute of title which would require any evidence for proving or disproving of the same. The Revisional Court has also observed that Ram Chandra had obtained a decree for only half share and even that half share was neither identifiable nor partitioned.

I have examined all the judgment and it is to be noted that in all the judgments it is clearly mentioned that exercise of powers under section 23 of 1887 Act is discretionary. The latest authority on this question is of the Apex Court in the case of Shamim Akhtar Versus Iqbal Ahmad and another reported in 2000(8) SCC  page 123. The relevant extract dealing with the said proposition is quoted hereunder:

"Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends 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. The power vested under sub-section (1) in the court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Cause Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted Respondent 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the trial court, at the first instance, had accepted the plaintiff's case holding, inter alia, that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The respondent tenant by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Cause Courts Act."

In the present case the position as it stands today in view of the facts already mentioned is that there is still no decree in favour of Ram Chandra declaring him to be owner of either half share or full share in the house in dispute. The matter is pending with the trial court even after 25 years.

It is also to be noted here that in the Small Causes Suit Smt. Saraswati Devi had appeared and deposed that Ram Chandra Lal was her tenant. The title having passed on from Smt. Sarasawati Devi to Smt. Kalawati Devi and thereafter to Smt. Geeta Devi, the contesting respondent continued to be the land lady  and Ram Chandra Lal continued to be the tenant and finally became the tenant of Smt. Geeta Devi. The finding in this regard of landlord and tenant relationship and also with regard to the arrears of rent having been recorded by both the courts below in favour of plaintiff stands concluded being findings of fact. Learned counsel for the petitioner despite great persistence has not been able to convince the Court that there appears to be a dispute bonafide enough for compelling Small Causes Court to have returned the plaint. Ram Chandra Lal has admittedly never challenged the subsequent sale deed nor  has still been able to get decree of title in his favour cannot be allowed to stall the Small Causes Court proceedings which in view of the facts and circumstances and the discussions made above, appear to be validly maintainable and till the disposal of the title suit Smt. Geeta Devi cannot be deprived from recov ery of the rent and ejectment of the tenant Ram Chandra Lal  who is admittedly in arrears subject to final out come of the title proceedings. Thus the judgment and decree of the courts below are liable to be affirmed as they do not suffer from any error of law. The petition lacks merit and is liable to be dismissed.

Coming to the next Writ Petition No.29225 of 1999 arising out of proceeding under sections 12/16 of the 1972 Act. learned counsel for the petitioner has once again submitted that as the title dispute was pending the Rent Control & Eviction Officer could not have rejected the release application of the petitioner for release of one room, which had fallen vacant on the death of Smt. Saraswati Devi who had not left behind any heirs to inherit the tenancy. It is further contended that release application in favour of Smt. Geeta Devi respondent no.3 could not have been allowed. Once again it may be noted that the Rent Control and Eviction Officer and the Addl. District Judge, while hearing the revision in the matter of release had arrived at the conclusion that Ram Chandra Lal had failed to establish his title either over any part or whole of the premises in dispute and further having taken contradictory stand before the Civil Court in Original Suit no. 639 of 1980 was not entitled to the relief nor could be make out any bonafide dispute of title so long as Smt. Geeta Devi continued to be recorded as the owner and land lady of the premises in dispute. In any case it would always be open to Ram Chandra Lal to seek appropriate remedy in the event he ultimately succeeds in the civil litigation.

Learned counsel for the petitioner has relied upon the following judgments in support of his contention:-

(1)   2000(1) ARC 29 Akhilesh Kalra and others v. Vth Additional District Judge, Lucknow and others

(2)   1993(2) ARC 383 Abdul Aziz and another v. District Judge, Rampur and others

(3)   1991(2) ARC 105 Smt. Pushpa Devi Sarraf and others Vs. Jai Narain Parasrampuria and others

(4)     AIR 1994 SC 1653 Jattu Ram v. Hakam Singh and others

(5)     1986 ALJ 86 Smt. Bina Rani  v. Fakir Chand and others

None of the above judgments referred to above apply to the facts of the present case. They are of no help to the petitioner.

Learned counsel for the petitioner has further contended that Smt. Geeta Devi having purchased the property in dispute during pendency of Original Suit No. 639 of 1980 her rights would only be confined up to the extent to which her transferors had any right.  There is no dispute with the said submission in view of Section 52 of Transfer of Property Act but at the same time the fact remains that it is only after Ram Chandra (petitioner) succeeds in getting the final declaration of his title that doctrine of lis pendins shall come into play and till then Smt. Geeta Devi will continue to be the owner and landlady of the premises in dispute.

Coming to the third petition it is not disputed that there was no interim order in the petition and during the pendency of this petition the trial court proceeded with Original Suit No. 639 of 1980 and vide judgment dated 16.8.2002 dismissed the suit on merits. Against the same the petitioner Ram Chandra Lal filed civil appeal, which was registered as Civil Appeal No. 77 of 2003. The said appeal was allowed vide judgment dated 19.4.2004 and the matter has been remanded to the trial court for decision on merits and the matter is still pending before the trial court.  Thus as of date there is no decree in favour of Ram Chandra and he still continues to be the tenant.

In view of subsequent development which have taken place and the parties having availed the remedies open to them under law and further now as the matter has been decided on merits by the trial court it would be but appropriate to dismiss the third petition as infructuous having lost its efficacy with the passage of time. No fruitful purpose would be served by adjudicating the third petition.

In view of the above, all the three petitions are dismissed but without any order as to costs.

Dated:1.12.2005

Hsc/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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