A.N.Varma - (1.) THIS revision is directed against the order passed by the learned 1st Addl. District Judge, Moradabad directing the return of the plaint of the suit for presentation to the proper court.
(2.) THE applicant was the defendant in a suit filed by the plaintiff opposite party for eviction of the former from certain premises. THE plaint case was that the defendant was the tenant of the plaintiff. THE defendant fell in arrears of rent amounting to Rs. 6300/- which he did not pay despite the notice of demand. It has also been asserted by the plaintiff that the defendant no. 1 sublet a portion thereof to the defendant no. 2. Accordingly the plaintiff determined the tenancy of the defendant no. 1 and brought the present suit for ejectment and recovery of arrears of rent and house tax etc. THE suit was defended by the applicant. He denied the relationship of landlord and tenant between the parties and also asserted that the contract of tenancy was void in-as-much as there was no order of allotment. THE court below exercising the powers of Small Causes Court accepted the plea of the plaintiff opposite party regarding the contract of tenancy but held that as there was no order of allotment the contract of tenancy was void and unenforceable at law. That being so, the court below concluded that it had no jurisdiction to try the suit. Accordingly, the court below directed the plaint to be returned for presentation to the proper court. Learned counsel for the defendant applicant relying on Section 23 of the Provincial Small Causes Court Act submitted that this was not a case where any intricate question of title was involved and consequently, Section 23 of the Provincial Small Causes Court Act which authorises the Small Causes Courts to return the plaint in such cases was not attracted to the present case. I am unable to accept the above contention. Order VII Rule 10 of the Code of Civil Procedure, the application of which is not excluded in the trial of suits by Small Causes Courts, confers jurisdiction on the Court at any stage of the suit to return the plaint for being presented to the Court in which the suit should have been instituted. The court below thus clearly had jurisdiction to return the plaint. Pursuant to the order of the Court, I understand the plaint has already been presented on the regular side in the court having jurisdiction. In these circumstances, I am not persuaded to interfere with the impugned order in any case.
(3.) LEARNED counsel for the defendant applicant, however placed strong reliance on the decision of the learned Single Judge of this Court in the case of Devi Dutta Sharma v. Teg Singh, reported in 1979 ALJ 1086 in support of his contention that the court below having found that the case set up by the plaintiff opposite party in the plaint was wrong should have dismissed the suit and not directed the plaint to be returned for being presented before the court having jurisdiction. I have gone through the decision cited by the learned counsel and am of the opinion that the same is clearly distinguishable. In the present case the court below has not recorded the finding that the plaint allegations touching the issue of jurisdiction were false. In deed the court below has accepted the case of the plaintiff on the issue of the relationship of the landlord and tenant between the parties. In fact on that issue the court below has rejected the case of the defendant. The plaint has been ordered to be returned only on the finding that the contract of tenancy is void as there was no order of allotment. The case cited is therefore, clearly distinguishable.;