Satish Chandra, C. J. - (1.) THIS is a writ petition by a tenant. It prays for a writ of prohibition requiring the execution court not to proceed with the execution of a decree because the decree was passed by a court which had no jurisdiction to entertain the suit.
(2.) THE decree is for ejectment of a tenant which was passed in a suit filed by the landlord on the basis of permission granted to sue for the eviction of the tenant under Section 3 of the Rent Control Act of 1947. THE suit was filed in the court of the Civil Judge on the regular side on May 13, 1972. THE present applicant contested the suit. Somewhere after September 20, 1972 it was transferred to the court of the Additional District Judge who tried it as a small cause court suit. After trial, the suit was decreed on April 27, 1973. THE tenant filed a revision in the High Court which was dismissed. THEn he went to the Supreme Court where also he failed. Thereafter the tenant filed suit no. 415 of 1979 in the court of City Munsif, Saharanpur, for a declaration that the decree passed by the Small Cause Court in suit no. 1 of 1972 was without jurisdiction, nullity and unexecutable. The landlords contested the suit and filed a written statement. The plaintiff applied for an injunction that pending the disposal of the suit, the decree for eviction may not be executed. That application was dismissed. An appeal filed against that order was also dismissed. Thereupon the plaintiff has filed the present writ petition. It will be seen that the relief claimed in the writ petition is virtually the same as claimed by the applicant in the suit filed by him. Learned counsel, however, stresses that he prays for the issue of a writ of prohibition and for that the existence or even the exercise of an alternative remedy is not barred. Assuming that the argument is correct and without going into it, I considered it fit and proper and have heard learned counsel on the merits of the submissions raised in the writ petition.
(3.) ON the merits, the principal question is whether the Court of Small Causes which decided the earlier suit no. 1 of 1972, had jurisdiction to entertain that suit and whether the decree passed by it was without jurisdiction. The Small Cause Courts Act by its Second Schedule lays down the category of cases which are not within the cognizance of the Court of Small Causes. Article (4) initially dealt with suits for possession of immoveable property. By the U. P. Civil Laws Amendment Act No. 37 of 1972 (which came into force on September 16, 1972), Article (4) was re-enacted as under :- "(4) A suit for the possession of immoveable 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....................................................." ;