Satish Chandra, C.J. - (1.) A learned single Judge has referred the follow ing question of law for decision by a larger Bench: "Whether in a case where the lessor is a private person and the lessee is Government the suit can be filed before the Court of Small Causes in view of Entries (1) and (4) of Second Schedule of the Provincial Small Cause Courts Act?"
(2.) The petitioner is the landlord of a premises which was under the tenancy of the State Government. The petitioner terminated the tenancy and after giving the usual notice under Section 80, C.P.C. filed the present suit for the ejectment of the Government department which was in occupation of the accommodation. The suit was filed in the Small Cause Court. The suit was contested but was decreed by the trial court. The defendant went up in revision. The learned District Judge held that the suit was not cognizable by the Small Cause Court. He, instead of returning the plaint for presentation to the proper court, dismissed it. Hence the present writ petition at the instance of the landlord.
(3.) The learned District Judge held that the Small Cause Court has no jurisdiction to entertain the suit on the basis of a single Judge decision of this Court in Shyam Manohar Lal v. 4th Addl. District & Sessions Judge (AIR 1978 All 238). In that case a suit was filed, after determination of the tenancy, for the ejectment of the defendant-tenant who was the District Agricultural Officer. The learned single Judge upheld the view that such a suit was not maintainable in the Court of Small Causes under Article 1 of IInd Schedule of the Provincial Small Cause Courts Act. The IInd Schedule to that Act specifies the categories of suit which are excepted from the jurisdiction of the Small Cause Courts. That Article provides : "(1) A suit concerning any act done or purporting to be done by or by order of the Central Government, the Crown Representative or the State Government." The learned single Judge in Shyam Manohar Lal's case held that this entry applies to a suit concerning any act done or purporting to be done. The word, "purporting" covers a profession by act or by words or by appearance of what is true, as well as of what is not true. Therefore, if the act was such as could ordinarily be done by the officer in the course of his official duties and he considered himself to be acting as a public officer and desired other persons to consider that he was so acting, then the act clearly is purported to be done in official capacity. It was held that it was a case of an act purporting to be done. The learned Judge assumed that refusal or negligence to vacate the premises was an official act of the officer. We are unable to agree. It could at the most be an omission to carry out a contractual obligation. The suit for ejectment was hence not concerning any act whether done or purporting to be done. The assumption in Shyam Manohar Lal's case that it was a case of an act, was not Justified. The suit concerned an omission to vacate.;