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Basu Deo & Others v. Smt. Jagesari & Another - SECOND APPEAL No. 3032 of 1980 [2006] RD-AH 16012 (14 September 2006)


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).


Court No. 30


Sri Basdeo (since deceased) represented by

Prithi Raj and others - Plaintiffs-Appellants


Smt. Jagesri (since deceased) and  another Defendant-Respondents

Hon'ble Sunil Ambwani, J.

1. Heard Shri A.K. Misra learned counsel for appellants and Shri V.B. Khare, learned counsel for respondents.

2. This is plaintiff's second appeal arising out of Suit  for arrears of rent and ejectment of the respondents from the disputed premises filed in the Court of Judge, Small Cause Court. The court returned the Suit under Section 23 of  Judge Small Cause Court Act, as it found that the question of title was involved,  on which the suit was registered in the court of Additional Munsif IV, Gorakhpur as OS No. 940 of 1975. After admitting evidence, the trial court recorded findings that the land was acquired by Ghasita and thus plaintiff-Basdeo is owner of the house. There is no evidence of tenancy, and the relationship of landlord and tenant between the parties. The defendant has failed to prove his title and that the suit is not barred by estoppel and acquiescence. The trial court found  the notices to be valid and thus decreed the suit on 22.8.1978 for ejectment of the defendants from four rooms, dalan and sahen. The relief  for arrears of rent of Rs. 196/- was not allowed.

3. First appeal was filed in the court of Additional Civil Judge, Gorakhpur. The Civil Appeal No. 270 of 1978 was heard by First Additional Civil Judge, Gorakhpur. He framed two issues:-

"1. Whether plaintiffs are entitled for decree of possession in the instant case even if they have failed to establish the claim of tenancy against defendant?

2. Whether the nature of the suit remained as that of the Small Causes nature despite its transfer to the regular court? If so, its effect.?

4. The appellate court  held that after the transfer of suit to the court of Munsif, the plaint should have been amended and the court fees was required to be paid on the reliefs claimed by the plaintiff. The plaintiffs did not choose to amend the plaint and to pay the court fees and thus the plaintiff was not entitled to decree of possession. The suit remained basically  that of small causes nature despite its transfer to the regular court. The appellate court  set aside the decree of the trial court.

5. The Second Appeal was filed under Section 100 of C.P.C. and was admitted on 18.10.1980 without framing any substantial question of law.

6. Shri V.B. Khare has raised  a preliminary objection to the maintainability of the second appeal. The unamended  Section 102 of C.P.C. provides:-

"102. No second appeal in certain cases - No Second appeal lies in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees."

7. The Full Bench of this Court in Bishambher Prasad vs. Dr. R.K. Agarwal AIR 1977 Alld. 103 upheld such objections and held that where the defendant voluntarily had  a trial on merit before the regular courts and an appeal was filed, a second appeal was not maintainable.

8. Shri A.K. Misra has not disputed  that in the present case the Second Appeal was not maintainable. Section 102 of the C.P.C. as interpreted by Full Bench of this Court does not permit the second appeal to be filed in such matter.

9. It was then contended by Shri A.K. Misra that as observed in the Full Bench Judgment as well as in Col. Anil Kak (Retd) vs. Municipal Corporation Indore and others (2005) 12 SCC 734 in such case the court may at its discretion permit the second appeal to be converted into a revision or a writ petition under Article 227 of the Constitution of India.

10. The trial court recorded  the findings that relationship of the  landlord and tenant was not  established between the parties.  These  findings were not considered by the appellant court as it was of the opinion that the appeal could not continue until the suit was amended. In Jagannath Dalwala vs. Bhola Nath and others AIR 1963 Alld. 258, this court held speaking through J.N. Takru, J that the transfer of small cause suit to ordinarily civil court does not necessarily require amendment of the plaint. Relying upon Haramohan Saha v. Sudhenshu Bhusan AIR 1926 Cal. 83;  Kali Krishna Tagore v. Izzatennissa Khatun, ILR 24 Cal. 557; and Allah Bux v. Nurul Hasan (96)  1931 ALJ 967 the Court held that when a suit is presented to a civil court under Section 23 of the Provincial Small Cause Courts Act, the case should be tried as framed and the question of title may be gone into only incidentally in order to decide the merits of the case.  The suit remains  one of the nature triable by the Small Cause Court. It was found that the exercise of powers under Section 23 of the Act are discretionary and to give civil court jurisdiction to try the suit as original suit. The civil court is bound to receive the claim and try it as such. In substance, it was held that in such event  there is no necessity to amend the plaint.

11. The fact still remains that neither a second appeal nor a civil revision is maintainable against the appellate order passed by First Additional Civil Judge, Gorakhpur. The revision under Section 115 would not lie to the High Court as the valuation of the suit and appeal is only Rs.48/-. I also do not find it appropriate to exercise the discretion to convert this second appeal into writ petition under Article 227 of Constitution of India, as  I do not find that there has been any miscarriage of justice to allow the  plaintiff to contest the matter as a writ petition after twenty seven years. There is no such equity in favour of the plaintiff-appellant to exercise the discretion in his favour. The second appeal  was not maintainable. The bar under Section 102 of C.P.C. was squarely applicable and that the appellate court had noted the full bench judgment of this Court and had referred in the judgment. In the circumstances, it cannot be said that the plaintiff-appellant was not aware or was under a bonafide mistake of legal advice. It may be open to the plaintiff to file a fresh suit and take advantage of the findings recorded by the trial court,  but that is different issue.

12. The preliminary objection is upheld and the second appeal is dismissed as not maintainable with costs quantified at Rs. 5000/-.




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