Under Section 33 of the Provincial Small Causes Court Act, a Court invested with the jurisdiction of the Court of Small Causes with respect to exercise of that jurisdiction, and the same Court with respect to exercise of its jurisdiction in Suit of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of the Act and the Code of Civil Procedure Code be deemed to be different Courts. Thus, Judge Small Causes Court though may also be the Court of Civil Judge (Junior Division) it could not have converted the SCC Suit into a regular Civil Suit. The Judge Small Causes Court could have only returned the plaint under Section 23 of the Provincial Small Causes Court Act if there was a dispute regarding the title of the property in question. In this case, there was no such dispute raised by the tenant. He had admitted the relationship of landlord and tenant, but had alleged that he was not in default and the rent had not fallen into arrears.
42. The order passed by the Judge Small Causes Court impugned in this writ petition could not have been passed converting the Suit by exercising inherent power under Section 151 CPC.
IN THE HIGH COURT OF ALLAHABAD
Matters Under Article 227 No. 3634 of 2018
Decided On: 10.01.2019
Shafiuddin Vs. Mashur Alam
Hon'ble Judges/Coram:
Sangeeta Chandra, J.
Citation: AIR 2019(ALL) 155
1. Heard Sri Vishal Agarwal, learned counsel for the petitioner and Sri Ashish Goyal, learned counsel for the respondents.
2. This writ petition has been filed by the petitioner/tenant challenging the order dated 9.4.2018 passed by the District Judge, Hathras in SCC Revision No. 101 of 2018 and the order dated 9.3.2018 passed by the learned Trial Court in SCC Suit No. 7 of 2013 allowing the application under Section 151 Civil Procedure Code (herein after referred to as the 'CPC') moved by the landlord for conversion of the Suit into a regular Suit.
3. It is the case of the petitioner that he is a tenant of the shop situated at Chaudhari Market, Malf Complex, Sadabad, Hathras at the rate of Rs. 1,000/- per month.
4. The landlord/respondent filed SCC Suit No. 1 of 2010 against the petitioner/tenant for eviction and it was alleged that rent had fallen into arrears. It was alleged in the plaint that the shop was let out on an oral agreement only and the tenancy was month to month. It was agreed that when the landlord would require the shop, the tenant would vacate it.
5. It was also stated that the provisions of U.P. Rent Control Act, 1972 are not applicable to the said shop as it was a new construction, and that since March 2009, the tenant had closed the shop and was not paying rent. A legal notice determining tenancy and asking for arrears of rent was given by the landlord on 29.9.2010 which was also served upon the tenant on 1.10.2010 and it was replied by him on 20.10.2010. In the reply to the notice, the tenant had alleged that the landlord had no right to determine the tenancy.
6. In the SCC Suit, the relief claimed was only for eviction of the tenant and handing over of possession of the shop through Court appointed Commissioner to the landlord. The only other relief that was claimed was for cost of litigation to be also directed to be paid by the tenant to the landlord.
7. The petitioner/tenant filed a written statement denying the contents of the plaint and alleging that legal notice given under Section 111(h) of the Transfer of Property Act by the landlord was illegal, as the landlord had given the shop in question to the tenant in 2007 and had taken Rs. 2,20,000/- as premium/Pagri with oral the agreement that as and when the tenant vacated the shop in question, he would be returned the amount of premium. It was alleged the tenant had always been paying the rent to the landlord and when the landlord refused to accept the same, he had also deposited the rent under Section 30 of the U.P. Rent Control Act before the Civil Judge (Junior Division). The shop was in the possession of the tenant since 2007 and he was doing his business of ready-made garments in the same and it had not remained closed since 2009 as alleged in the plaint. The notice given under Section 111(h) was illegal, instead, notice should have been given under Section 106 of the Transfer of Property Act.
8. It was also alleged that the tenant looking into the malafide intention of the landlord had also filed Original Suit No. 31 of 2010 (Shafiq Uddin Vs. Mansoor Alam) for restraining the landlord from erecting the tenant except in accordance with law and therefore the trial of the SCC Suit should be stayed till the pendency of Original Suit No. 31 of 2010.
9. In the SCC Suit evidence was led by both the sides. Later on, an application was moved bearing paper no. 35-C(2), wherein it was stated that initially the SCC Suit was registered as SCC Suit No. 1/2010, but later on it was converted into a Regular Suit No. 7/2013 by the Court concerned, and in the said Suit the same evidence/oral statements/affidavits was to be considered as evidence as in the SCC Suit.
10. The tenant filed an objection i.e. paper no. 36-C(2) saying that the said application was not maintainable. Originally the Suit was registered as SCC Suit, it had not been legally converted into an Original Suit on the regular side, and even if it were the evidence led by parties in the SCC Suit cannot be read as evidence in the regular Suit No. 7 of 2013.
11. The learned SCC Court i.e. Civil Judge (Junior Division), Sadabad, Hathras observed in his order dated 22.10.2013 that evidence had already been recorded in the SCC Suit which evidence was not being disputed by either side. No fresh evidence was to be led, besides, the defendant was not disputing the evidence already taken, hence it would serve the interests of justice, if the evidence already led by either side should be read in the Original Suit also. The matter was fixed for hearing again on 26.11.2013.
12. The tenant being aggrieved by the order dated 22.10.2013 filed a Revision bearing no. 1 of 2014 before the learned District Judge which was allowed on 18.12.2014 and the Revisional Court remitted the matter back to the Civil Judge (Junior Division) for consideration afresh after giving opportunity of hearing to either side. The order dated 18.12.2014 was not challenged further by the landlord and it attained finality.
13. Thereafter, on 9.12.2015, again an application was filed by the landlord under Section 151 CPC with a prayer that the SCC Suit may be registered as an Original Suit. In the said application mention was also made that the shop in question was not covered under the provisions of U.P. Rent Control Act. It had only been constructed about 15 years ago. The plaint had been presented under Section 111(h) of the Transfer of Property Act for which a Regular Suit on the original side was maintainable, but it was wrongly registered as an SCC Suit. Evidence had been led by the either side treating it to be an SCC Suit wrongly.
14. The petitioner/tenant objected to such application saying that there is no provision for registering an SCC Suit as a Regular Suit. This settled position in law had also been noted by the Revisional Court in its order on 18.12.2014 while allowing Revision No. 1 of 2014.
15. It has been alleged that learned Trial Court without looking into maintainability of such application under Section 151 CPC allowed the same by its order dated 9.3.2018. It has been submitted that the order dated 9.3.2018 is without detailed consideration of earlier Revisional Court's order dated 18.12.2014.
16. Learned Trial Court has observed in the order dated 9.3.2018 that earlier the tenant had filed an objection under Order 7 Rule 11 for return of plaint. After going through the contents thereof, the learned Trial Court had converted the SCC Suit into a Regular Suit in exercise of its inherent powers under Section 151 CPC. It is apparent from a perusal of the plaint that it had been filed under Section 111(h) of the Transfer of Property Act and that such an application/plaint is maintainable only as a Regular Suit. The earlier order has been set aside only because the Revisional Court found that the SCC Suit was a proceeding of summary nature whereas a Regular Suit required detailed procedure to be followed, and the defendant would not have got due opportunity, if the same evidence was read in the Regular Suit. Since, the Revisional Court had set aside the earlier order only on the ground of denial of due opportunity of hearing no harm would be done if while converting the SCC Suit into a Regular Suit, time is given to the parties to lead additional evidence.
17. The learned Trial Court i.e. Civil Judge (Junior Division), Hathras observed that from a perusal of the contents of the plaint that it was evident that it should have been registered as a Regular Suit, but because of typographical error in the cause title of the plaint, it had been registered by the Munsarim as an SCC Suit. It observed that substance and not form should be looked at, which clearly made out that in substance the plaint under Section 111(h) of the Transfer of Property Act for eviction of the lessee could not have been registered as an SCC Suit. Since, it was inadvertently registered as an SCC Suit by the Munsarim, an act of Court should not cause prejudice to the litigant, and in exercise of inherent jurisdiction under Section 151 CPC, the Court could certainly direct conversion of an SCC Suit into a Regular Suit. Additional evidence was however directed to be led by either side as the SCC Suit is of summary nature and the Regular Suit requires detailed hearing to be done.
18. The petitioner/tenant thereafter approached the Revisional Court again challenging the order dated 19.3.2018.
19. This time the Revisional Court rejected the Revision No. 101 of 2018 by its order dated 9.4.2018 by observing that the learned Lower Court had permitted both the parties to adduce additional evidence. Also, some cost had been imposed upon the plaintiff/landlord for allowing such application, no serious prejudice was caused to the tenant. Since, no recovery of rent was claimed in the plaint and it had been filed under Section 111(h) of the Transfer of Property Act and only because of a typographical error in the heading depicting it as an SCC Suit, it could not be registered as a Regular Suit on an earlier occasion. It was not disputed that the shop in question was built around ten yeas ago and U.P. Act No. 13 of 1972 was inapplicable, hence it had to be proceeded either as an SCC Suit or as a Regular Suit. In this case after conversion had been directed, the learned Trial Court had also afforded due opportunity of hearing to both the parties for leading additional evidence. It was observed that if some mistake was committed by the plaintiff, or even by the Officer the learned Lower Court was entitled to correct it under Section 151 CPC.
20. It is against this order dated 9.4.2018 that the petitioner has approached this Court.
21. Learned counsel for the petitioner/tenant argued that originally the landlord had filed a suit for eviction of the tenant alone without any prayer for recovery of arrears of rent. It was registered as SCC Suit and evidence was led by the parties before the learned Trial Court. Thereafter, on closure of evidence, the respondent landlord moved an application under Section 151 Civil Procedure Code with a prayer that the SCC Suit may be registered as an Original Suit. No prayer was made regarding amendment in the pleadings or in the relief clause. The only submission in the application moved under Section 151 Civil Procedure Code was to the effect that the relief clause sought eviction and the ground taken for eviction was under Section 111(h) of the Transfer of Property Act. Therefore, it ought to have been registered as a regular Suit and not as SCC Suit. This application under Section 151 Civil Procedure Code was initially allowed by the learned Trial Court on 22.10.2013.
22. The Revisional Court remanded the matter to the learned Trial Court for consideration afresh with regard to the points mentioned by it in its order dated 18.12.2014.
23. After remand of the matter, a fresh application was moved by the respondent/landlord which has been considered by the learned Trial Court by its order dated 9.3.2018 and it has been allowed with the observations that no doubt an SCC Suit is a proceeding of summary nature and the evidence led may be inadequate. Therefore, opportunity is given to either side to submit additional evidence, if they so desire.
24. This order dated 19.3.2018 was challenged by the petitioner/tenant by preferring a Revision registered as Revision No. 101 of 2018 by the order impugned dated 9.4.2018. The Revisional Court has observed that under Section 151 Civil Procedure Code, the lower Court is entitled to correct an error made by it initially in registering the Suit as SCC Suit, whereas the relief clause was limited only to eviction of the tenant and no claim was made with regard to arrears of rent to be recovered.
25. It has been contended by the learned counsel for the petitioner/tenant that the order passed by the learned Trial Court dated 19.3.2018 and the order passed by the Revisional Court dated 9.4.2018 is against the settled principles of law. Even though the same Court was exercising power as a Judge Small Causes Court and as Civil Judge (Junior Division) on the regular side, it could not have allowed such a conversion to be made changing the nature of Suit entirely.
26. Learned counsel for the respondent/landlord on the other hand has argued that the relief clause was never changed by the respondent/landlord, it remained the same i.e. the relief claimed was with regard to eviction of the tenant. Therefore, if initially the Suit was wrongly registered as SCC Suit it was only because of an incorrect mention in the cause title of the Suit in question saying that it is an SCC Suit. Mere wrong registration of the Suit, as an SCC Suit would not in any way bar the same to be treated as a regular Suit and even otherwise the Correction with regard to wrong registration was within the power of the Court concerned, and therefore the application under Section 151 Civil Procedure Code has been rightly allowed. All Courts act within their jurisdiction to correct any errors that are apparent on the face of the record. Moreover, the Trial Court had also considered this fact that the evidence was led treating it to be summary proceedings as an SCC Suit. Therefore, opportunity has been given to either side to produce additional evidence, if any, now that the Suit has been converted into a regular Suit.
27. Learned counsel for the respondents/landlord has placed reliance upon certain judgments, photocopies of which have been given on 15.5.2018 after conclusion of hearing.
28. The first case is Ram Kumar Agarwal Vs. District Judge, Mainpuri MANU/UP/0797/1999 : 1999 (4) AWC 3394 in which the Civil Judge (Senior Division), Mainpuri held that the suit is barred under Section 94 of the Motor Vehicles Act. In Civil Appeal filed thereafter by the plaintiff, the District Judge, Mainpuri held that the Suit for declaration of title to the disputed bus and for injunction to restrain the defendant from interfering with the possession over the disputed bus is triable by the Civil Court. It was argued before the High Court that Order VII, Rule 10 prescribes that a plaint may be returned for being presented to the Court in which the Suit should have been instituted. Since, the plaint was not returned by the said Court for being presented to the Court in which the Suit should have been instituted rather the Suit was dismissed as not maintainable, the said order could not be treated to be an order under Order VII, Rule 10 CPC. Unless, the order was an order under Order VII, Rule 10, it was not Appealable. However, it would be amenable to the revisional jurisdiction under Section 115 of the Code of Civil Procedure. The High Court however observed that the learned District Judge had jurisdiction to entertain an Appeal as well as Civil Revision out of the said order. Therefore, even if the Appeal was decided treating the same as an Appeal, still then, it cannot be said that the decision was without jurisdiction. It was open to the Court to convert an Appeal into a Revision and a Revision into an Appeal.
29. The High Court while entertaining the petition filed under Article 226 of the Constitution converted an Appeal into a Revision and treated the order impugned passed by the District Judge to be an order passed on Revision. It thereafter proceeded to decide the case on merits.
30. In Sampath Kumar Vs. Ayyakannu MANU/SC/0812/2002 : 2002 (7) SCC 559, the Supreme Court considered the provision of Order VI Rule 17 of the CPC and the question whether it is permissible to convert through an amendment a Suit filed merely for permanent prohibitory injunction into a Suit for declaration of title and recovery of possession. It was held that it could be done as what was sought to be changed by way of amendment was the nature of relief prayed for by the plaintiff and not the basic structure of the Suit.
31. In Sujir Keshav Nayak Vs. Sujir Ganesh Nayak 1991 (1) SCC 731, the Supreme Court was considering a case where a Suit for dissolution of partnership and accounting had been filed and the question was whether Court fee is to be computed on the value of the plaintiffs share in a partnership as estimated by him or as found by the Court? the facts of this case being completely different, it is inapplicable and is therefore not being considered in detail.
32. In Madhusudan Das Agarwal & another Vs. Banaras Hindu University & another MANU/UP/1255/2015 : 2015 (7) ADJ 361, this Court was considering a petition under Article 227 of the Constitution arising out of a Suit being filed under Section 92 of the CPC against Banaras Hindu University in the Court of Civil Judge (Senior Division), Mohan Lal Ganj, Lucknow for removal of BHU from the office of trustee of Waqf Shah Banarasi Das and for appointment of a new trustee in its case.
33. In the High Court the question considered was that under Order VII, Rule 10 CPC, at any stage of the Suit, if the Court is of the opinion that the Suit was wrongly filed, the same was to be returned for its presentation before the proper Court. On return a plaint, the CPC specifically provides for denovo trial. If an application was filed before the District Judge, Lucknow under Section 24(5) CPC for transferring the Suit from the Court of Civil Judge (Senior Division), Mohan Lal Ganj, Lucknow to the Court of District Judge, whether on transfer the Trial was to proceed denovo?
34. This Court held that the transferee Court is empowered to either retry it or proceed from the point at which it was transferred or withdrawn. The second part of Section 24 is in sub-section (5). Under sub-section (5) of Section 24, a Suit or proceedings could be transferred from a Court which had no jurisdiction to try it and where such transfer or withdrawal is made, a fresh exercise of recording the entire evidence would unnecessarily lead to delay in decision. Clearly, the judgment rendered by this Court in Madhusudan Das Agarwal & another Vs. Banaras Hindu University & another MANU/UP/1255/2015 : 2015 (7) ADJ 361 is inapplicable to the facts of the case.
35. The question before this Court to consider is whether the Judge Small Causes Court who was also acting as Civil Judge (Junior Division) could have converted the SCC Suit into a regular Suit?
36. It has been argued that the nature of two Suits being different, one being a summary proceeding to determine the relationship of landlord and tenant and the other being a regular proceeding under the CPC requiring detailed hearing by following procedure as prescribed under the CPC, no such conversion could have been directed.
37. Having heard the learned counsel for the parties and having gone through the pleadings on record, this Court finds that when the plaint was filed, the cause title of the plaint so filed mentioned that it was being preferred before the Court of Judge Small Causes/Civil Judge (Junior Division), Sadabad Hathras, and the heading indicated it as SCC Suit No. NIL of 2010. At the same time, on the first page of the plaint mention was made of it being an application under Section 111(h) of the Transfer of Property Act. The prayer clause also mentioned the relief claimed as one for eviction of tenant through Court process and possession being directed to be delivered through Court appointed Commissioner and cost of litigation to be given.
38. Under Section 111, the various provisions for determination of lease of immovable property have been given. Section 111 of the Transfer of Property Act is being quoted herein below:-
"111. Determination Of Lease.--A Lease Of Immovable Property Determines--
(a) By Efflux Of The Time Limited Thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1[* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in 3[any of these cases] the lessor or his transferee 4[gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
(emphasis supplied)
39. It is apparent that Section 111 relates to the contingency where lease of immovable property could be said to have been determined. It does not however talk whether such a plaint for eviction of lessee was to be filed before a Regular Civil Court as a Regular Civil Suit or whether it was to be filed before Judge Small Causes Court. This is left to be determined as per the provisions of Civil Procedure Code and under the Provincial Small Causes Courts Act.
40. Where a lease is terminated by a notice under Section 111(h) in the absence of power of re-entry, eviction can be ordered merely because of termination of lease, in a three Judge decision of the Supreme Court in Merwanji Nanabhoy Merchant Vs. Union of India & others MANU/SC/0494/1979 : 1979 (4) SCC 734, the Supreme Court observed that once the right of re-entry as given under the Bombay Rent Act, 1947 was not present as per the terms of the lease deeds and between the parties a Suit for eviction on the ground of termination of tenancy simplicitor could be entertained under the Provincial Small Causes Court Act. An SCC Court has exclusive jurisdiction in certain matters
41. Under Section 33 of the Provincial Small Causes Court Act, a Court invested with the jurisdiction of the Court of Small Causes with respect to exercise of that jurisdiction, and the same Court with respect to exercise of its jurisdiction in Suit of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of the Act and the Code of Civil Procedure Code be deemed to be different Courts. Thus, Judge Small Causes Court though may also be the Court of Civil Judge (Junior Division) it could not have converted the SCC Suit into a regular Civil Suit. The Judge Small Causes Court could have only returned the plaint under Section 23 of the Provincial Small Causes Court Act if there was a dispute regarding the title of the property in question. In this case, there was no such dispute raised by the tenant. He had admitted the relationship of landlord and tenant, but had alleged that he was not in default and the rent had not fallen into arrears.
42. The order passed by the Judge Small Causes Court impugned in this writ petition could not have been passed converting the Suit by exercising inherent power under Section 151 CPC.
43. In Om Prakash Agarwal Vs. Vishan Dayal Rajpoot MANU/SC/1169/2018, the Supreme Court while considering various amendments made in the jurisdiction of SCC Courts to hear the matters relating to Small Causes and Suits between lessor lessee has given a detailed ex-position of the law. The relevant paragraphs of the judgment are being quoted herein below:-
"7. Two enactments namely (i) The Bengal, Agra, Assam Civil Courts Act, 1887 and (ii) The Provincial Small Causes Courts Act, 1887, were passed with regard to constitution, jurisdiction of Civil Courts in the then NorthWestern Provinces both being enforced w.e.f. 01.07.1887. The Bengal, Agra and Assam Civil Courts Act 1887 was enacted to consolidate and amend the law relating to Civil Courts in Bengal, the NorthWestern Provinces and Assam-------------.
8. Section 25 deals with power to invest Subordinate Judges and Munsifs with Small Cause Court Jurisdiction. Section 25 of the Act as applicable in the State of Uttar Pradesh is as follows: "[25.[1] The High Court may by notification in the official Gazette, confer within such local limits as it thinks fit, upon any Civil Judge or Munsif, the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 for the trial of suits cognizable by such Courts up to such value not exceeding five thousand rupees as it thinks fit, and may withdraw any jurisdiction so conferred:
Provided that in relation to suits of the nature referred to in the proviso to subsection (2) of Section 15 of the said Act, the reference in this subsection to five thousand rupees shall be construed as reference to twenty five thousand rupees.]
[(2) The High Court may, by notification in the Official Gazette, confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value), by the lessor for the eviction of a lessee from a building after the determination of his lease, or for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease or of compensation for the use and occupation thereof during the continuance of the lease or of compensation for the use and occupation thereof after such determination of lease, and may withdraw any jurisdiction so conferred.
Explanation-For the purposes of this sub section, the expression 'building' has the same meaning as in Article (4) in the Second Schedule of the said Act.] [(3)]x x x ]
[(4) Where the jurisdiction of a Judge of a Court of Small Causes is conferred upon any District Judge of Additional District Judge by notification under section, then, notwithstanding anything contained in Section 15 of the Provincial Small Cause Courts Act, 1887, all suits referred to in sub section (2) shall be cognizable by Court of Small Causes.]"
9. The Provincial Small Cause Courts Act, 1887 was enacted to consolidate and amend the law relating to courts of small causes established beyond the Presidency town. AS the name suggests, the Provincial Small Cause Courts Act 1887 was enacted to deal with "Small Causes". The Object of the Act was to create a separate court for dealing with small causes. The object obviously was that small causes may be dealt with expeditiously. A summary procedure was also envisaged for dealing with small causes-------.
10. Black's Law Dictionary has referred to "Small Claims Court", which explained it in following manner: "A court that informally and expeditiously adjudicates claims that seek damages below a specified monetary amount, usu. claims to collect small accounts or debts. Also termed small debts court; conciliation court."
11. The object as is delineated from Statements of Objects of enactment was to provide for speedy machinery for small claims. Although, Code of Civil Procedure is applicable by virtue of Section 17 of Small Causes Courts Act, but the Code of Civil Procedure itself in Order L provides a simplified procedure excluding various rules and orders of the C.P.C. for small causes cases. Order L of the C.P.C. is as follows:
"1. Provincial Small Cause Courts-The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887)[or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say
(a) so much of this Schedule as relates to
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and orders:
Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2, 3, 5, 6, 7 (review);
Order LI."
12. Section 5 provided for establishment of small causes courts by the State Government. Chapter III of the Act deals with "Jurisdiction of Courts of Small Causes". Section 15 of the Act provides:
15. Cognizance of suits by Courts of Small Causes (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits expected from the cognizance of a Court of Small Causes. (2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. (3) Subject as aforesaid, the [State Government] may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order."
13. The Uttar Pradesh Civil Laws (Amendment) Act, 1972 (U.P. Act No. 37 of 1972) was enacted by Uttar Pradesh Legislature with the Presidential assent. The Statement of Objects and Reasons of U.P. Act No. 37 of 1972, which are relevant for understanding the Scheme and purpose of the amendment are to the following effect:
"Prefatory Note--Statement of Objects and Reasons.(1) The Provincial Small Cause Courts Act, 1887, provides for a summary procedure in the trial of suits. Moreover, the decisions of such courts are not appealable, and only one revision is provided. However such courts cannot take cognizance of suits for possession of immovable property. By a recent amendment contained in Section 20(6) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972), eviction suits against the tenant after the expiration of his tenancy have been taken out from the purview of this exception and have been made cognizable by the small cause courts. This has been done because in such suits the issues are usually simple. In cases where the question of title comes to be in issue, a small cause court has power to return the plaint for presentation to a regular court. It is now proposed to delete the aforesaid amendment from U.P. A ct X III O F 1972, and instead, to incorporate a wider amendment directly in the Provincial Small Causes Court Act, 1887, so that all buildings, and not merely those buildings which are governed by U.P. Act XIII of 1972, may be covered thereby. It is further proposed that in respect of such suits the ordinary small cause courts may be conferred jurisdiction to decide cases of a value up to Rs. 5,000 (instead of only Rs. 2,000 in some districts and Rs. 1,000 in most districts, as at present) and that cases of a higher value may be decided by District Judges sitting as Judges of Small Causes, and revisions against such decisions of District Judge shall lie to the High Court, while revision against decisions of other Courts of Small Causes may continue to lie to the District Judge.
14. As per Section 15(1), A Court of Small Causes was not competent to take cognizance of the suits specified in the Second Schedule. Clause (4) of the Second Schedule of the Act was to the following effect:
"(4) a suit for the possession of immovable property or for the recovery of an interest in such property;"
15. By Act No. 37 of 1972 amendments were made in Section 15, Section 25 and Second Schedule of the Act. Sections 2, 3 and 4 of the U.P. Act No. 37 of 1972 provides as follows:-
"2. Amendment of Section 15 of Act IX of 1887.-In Section 15 of the Provincial Small Cause Courts Act, 1887, as amended in its application to Uttar Pradesh, hereinafter referred to as the principal Act, in sub-section (3), the following proviso shall be inserted, namely:
"Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof after such determination of lease, the reference in this sub-section to two thousand rupees shall be construed as a reference to five thousand rupees.
Explanation.--For the purposes of this sub-section, the expression 'building' has the same meaning as in Article (4) in the Second Schedule."
3. Amendment of Section 25 of Act IX of 1887.-In Section 25 of the principal Act the following proviso thereto shall be inserted, namely:
"Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of Judge of Small Causes, the power of revision under this section shall vest in the High Court."
4. Amendment of the Second Schedule to Act IX of 1887.--In the Second Schedule to the principal Act, for Article (4) the following Article shall be substituted, namely
"(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.
Explanation.--For the purposes of this Article, the expression 'buildings, means a residential or non-residential roofed structure, and includes any land (including any garden), garages and out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."
16. One more amendment, which was affected by U.P. Act No. 37 of 1972 was amendment in Section 25 of Bengal, Agra and Assam Civil Courts Act, which was made by Section 5 of he Act, which is to the following effect:
"5. Amendment of Section 25 of Act XII of 1887. Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, as amended in its application to Uttar Pradesh shall be re numbered as subsection (1) thereof, and
(i) in subsection (1), as so re numbered, for the existing proviso, the following proviso shall be substituted, namely:
"Provided that in relation to suits of the nature referred to in the proviso to subsection (3) of Section 15 of the said Act the references in this subsection to one thousand rupees and five hundred rupees shall be construed respectively as references to five thousand rupees and one thousand rupees."
(ii) after subsection (1) as so re numbered, the following subsection shall be inserted, namely:
"(2) The State Government may by notification in the official Gazette, confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value), by the lessor for the eviction of a lessee from a building after the determination of his lease, or for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease or of compensation for the use and occupation thereof after such determination of lease, and may withdraw any jurisdiction so conferred.
Explanation For the purposes of this subsection, the expression 'building' has same meaning as in Article (4) in the Second Schedule to the said Act.
(3) The State Government may by notification in the official Gazette delegate to the High Court its powers under this section."
18. In Section 15 of Provincial Small Cause Courts Act, for subsection (2) and (3), following was substituted by U.P. Act 17 of 1991 w.e.f. 15.01.1991: "(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five thousand rupees shall be cognizable by a Court of Small Causes;
Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this subsection to five thousand rupees shall be construed as a reference to twenty-five thousand rupees. Explanation For the purposes of this sub section, the expression 'building' has the same meaning as in Art.(4) in the Second Schedule."
(emphasis supplied)
44. It is apparent from a perusal of the judgment rendered by the Hon'ble Supreme Court, in so far as Suits relating to eviction of tenant are concerned, the SCC Courts have exclusive jurisdiction. In the various amendments made in the Provincial Small Causes Courts Act, 1887 and the Bengal, Agra and Assam Civil Courts Act, 1887, the legislature has only increased the pecuniary jurisdiction from time to time of such SCC Courts and has also clarified that Article 4 of the Second Schedule of the Provincial Small Causes Courts Act shall not include a Suit by a lessor for eviction of a lessee from building after the determination of his lease. The legislature has thus clarified that an eviction Suit against the tenant after the expiration of his tenancy has been taken out from the exception under Article 4 and have been made cognizable by Small Causes Courts.
45. It is evident that only a Small Causes Court has exclusive jurisdiction to try Suits filed by the lessor for eviction of the lessee in properties falling outside the purview of the Rent Control Act. As such, the Judge Small Causes Court i.e. Civil Judge (Junior Division) misinterpreted the provisions of Transfer of Property Act in directing conversion of the SCC Suit into a Regular Suit.
46. The SCC Court having exclusive jurisdiction to try such Suit. The Suit filed by the respondent/landlord can only entertained before the Small Causes Court, therefore the order passed by the learned Courts below is liable to be set aside on this ground also.
47. In a Suit for ejectment alone without seeking any relief for payment of arrears of rent/damages/mesne profits, it could only be said that the landlord had forfeited his right to the second or consequential relief. The said Suit having been filed under the Provincial Small Causes Court's Act, it had to be tried as such, as a Judge Small Causes Court has exclusive jurisdiction in such matters relating to tenancy. The learned Judge Small Causes Court should have decided the Suit as an SCC Suit.
48. Since under Section 17 of the Provincial Small Causes Courts Act, 1887 application of the Code of Civil Procedure is not barred except in so far as is otherwise provided by the CPC or by the Provincial Small Causes Courts Act, the procedure to be followed in the Court of Small Causes in all Suits cognizable by it and in all proceedings arising out of such suit in the same, the procedure as prescribed under the CPC.
49. The Court of Small Causes under Sections 15 & 16 of the Act of 1887 has exclusive jurisdiction and a Suit cognizable by a Court of Small Causes cannot be tried by any other Court. Only the Judge Small Causes Court could have decided the Suit asking for eviction of tenant on the grounds of arrears of rent not being paid by the tenant for the shop in question to which admittedly the provisions of U.P. Rent Control Act, 1972 were inapplicable.
50. The order dated 9.3.2018 passed by the learned Trial Court/Civil Judge (Junior Division), Sadabad, Hathras as well as the order dated 9.4.2018 passed by the District Judge, Hathras in SCC Revision No. 101 of 2018 are thus liable to be set aside and are set aside. The matter is remitted to the Judge Small Causes Court to decide expeditiously.
51. Since, evidence has already been led and the SCC Suit was filed sometime in 2010, it is expected that the learned Judge Small Causes Court may decide the said Suit within a period of four months from the date a certified copy of this order is produced before him.
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