- (1.) Heard Sri Nasiruzzaman, Counsel for the petitioner, Sri H.O.K. Srivastava appearing for caveator respondent and perused the record. Facts of the case in nutshell are that predecessor of respondent No. 2 to 8, Abdul Basit instituted S.C.C. Suit No. 141 of 1985 against Hidaytullah and Massan alias Mushir Khan (predecessor of the petitioners) in the Court of Judge Small Causes, Moradabad for arrears of rent and ejectment. It was claimed that rent was due with effect from 23.9.1983 which was not paid despite service of notice of demand, hence the tenancy was terminated. Defence of the defendants in that suit was that there was no relationship of landlord and tenant between the parties. According to them, owner of the disputed house was Mohd. Naseen and others and in one part of the property, the petitioners were the tenant. Mohd. Naseen had filed Suit No. 137 of 1982 with the allegations that entire property was under the tenancy of one Hidayatullah which was decided in terms of compromise dated 31.1.1985 and in pursuance of the compromise the suit was decreed and possession of the share of Hidayatullah was given to Mohd. Naseen, who executed an agreement to sell on 31.1.1985 in favour of Smt. Khatoon Begum-the petitioner in this case and also handed over vacant possession to her.
(2.) The Judge, Small Causes Court by judgment and order dated 30.5.1988 decided only issue No. 1 in favour of defendant-petitioner Smt. Khtoon Begum and others. Aggrieved by the aforesaid judgment, a revision was filed by the ancestors of respondent No. 2 to 8 which was decided vide judgment and order dated 12.2.1990 against the petitioner. The revisional order dated 12.2.1990 was challenged by predecessor of the petitioner-Sri Mushir Khan alias Massan in Writ Petition No. 13530 of 1990 which was dismissed by judgment and order dated 9.7.1999 remanding the matter to J.S.C.C., Moradabad as it was pleaded that petitioner is the owner and question of title/owner involved in the suit incidentally requires to be decided in S.C.C. suit. In this regard, a plea was also taken that the suit was barred by section 23 of the Provincial Small Causes Courts Act 1887 and a preliminary issue was framed whether the Court of Small Causes has no jurisdiction to try the suit. This question was decided by J.S.C.C. as issue No. 1 giving rise to the litigation as aforesaid.
(3.) The High Court in aforesaid writ petition No. 13530 of 1990, while remanding the matter observed thus: Without having evidence of the parties on record, no such order in the present case should have been passed by the Trial Court merely on the basis of the pleadings of the parties. Since section 23 of the Act permits return of the plaint at any stage of the proceedings, it will always be open for the Court concerned to exercise powers under section 23 of the Act if it finds that the question of title on the basis of the evidence adduced can not be answered in a summary way and an elaborate enquiry is required for determining the question of title which can only be held by a Competent Court having jurisdiction to determine the same.;