- (1.) Heard Sri Ashish Agrawal, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for the respondent. Submission of the learned counsel for the petitioner is that since a title of the respondent who is claiming herself to be landlady is disputed and two civil suits are pending, the learned Judge, Small Causes Court has erred in rejecting the petitioner's application filed under section 23 of the Provincial Small Causes Court Act. In support of his submission he has placed reliance upon the judgment of this Court in the case of Mst. Bhagmani Devi vs. VIII. A.D.J. and another, 2011 9 ADJ 567 in which considering the number of judgment of Apex Court, this Court has held that where the question of title is involved the trial court has to return the plaint to the plaintiff for presentation before the regular civil court. Further reliance has been placed reliance upon the judgment of the Apex Court in Budhu Mal vs. Mahabir Prasad and others, 1988 AIR(SC) 1772. He further submitted that earlier the petitioners had approached this Court challenging the order dated 19.2.2013 passed by the Judge, Small Causes Court through Civil Misc. Writ Petition No. 13546 of 2013 (Mahfooz Khan vs. Zeenat Parveen). This Court allowed the writ petition with the direction to the Judge, Small Causes Court to pass a reasoned order after considering the petitioner's objection. It is stated that without considering his objection the application has been rejected. On the other hand, Sri Iqbal Ahmad, learned counsel for the respondent contended that the writ petition should be dismissed on the ground of alternative remedy as the impugned order is revisable. He also placed reliance upon the decisions of the Apex Court in the case of Shamim Akhtar vs. Iqbal Ahmad, 2000 LawSuit(SC) 1588 and the decision this Court in the case of Ram Deo vs. Ram Naresh, 2006 LawSuit(All) 1026 wherein it has been held that plaint cannot unnecessarily be returned before the civil court and Judge, Small Causes Court and decide the issue of eviction and finding recorded with regard to the title will not affect the case filed before the civil court in case any suit is instituted claiming title.
(2.) The matter requires scrutiny.
(3.) Learned counsel for the respondent prays for and is granted two week's time to file counter affidavit. Rejoinder affidavit, if any, be filed within two weeks thereafter. List thereafter.;