- (1.) A. B. Srivastava, J.- This is a tenant's writ petition against the judgment and decree of the J. S. C. C. , Moradabad, dated 24-4- 1992 whereby he decreed the suit of the plaintiff respondent No. 1 for ejectment, arrears of rent and house tax, and judgment dated 4-10-1994 of the Additional District Judge, Morada bad confirming the same in revision. In this case respondent No. 1 has filed caveat and his counsel stated that he does not propose to file any counter affidavit in view of the material placed on record by the petitioner, hence the petition is being disposed of finally at admission stage after hearing both the parties' learned counsel.
(2.) THE suit was filed by the respondent for ejectment, arrears of rent etc. with allegation that he is owner landlord of the house in question which was in the tenancy of the petitioner, on a monthly rent of Rs. 1,500. THE building being constructed in the year 1979, the Act 13 of 1972 does not apply, besides the defendant was also in arrears of rent from 1-10-1985 to 31-1-1986. By a notice under Section 106 of the T. P. Act, the tenancy was determined and by the same notice rent was also demanded which he failed to comply barring sending rent upto February, 1985, hence the suit. Apart from Rs. 2,300 rent and damages, Rs. 3,500 towards arrears of house tax was also claimed. THE suit was contested by the defendant who contended that building in question being old construction, Act 13 of 1972 is applicable and the suit for recovery of arrears of house tax was not cognizable by the Court of Small Causes. Both the courts below, accepting the plea of the respondent decreed the suit as stated above. The first point canvassed in this writ petition on behalf of the peti tioner is, regarding jurisdiction of the Court of Small Causes, the contention being that the said court having no jurisdiction to take cognizance of a suit for recovery of arrears of house tax, the suit as a whole was not maintainable and should be returned for presentation to the Civil Court of original jurisdic tion, and the decree passed deserves to be set aside. This contention how ever is devoid of force. Section 7 of Act 13 of 1972 provides subject to any contract in writing to the contrary, for the liability of the tenant to pay to the landlord in addition to and as part of the rent, the water tax and 25% of every such enhancement in house tax made after enforcement of the Act as is not occasioned on account of increase in the assessment of the building or as a result enhancement of the rent under Section 5 of the Act. In the instant case Annexure-1 the agreement, shows that there was also a contract for pay ment of house tax by the tenant. Accordingly the relief for recovery of the amount of house tax was also covered by the provisions of Section 15 of the Provincial Small Cause Courts Act, and was well within the cognizance of the Judge Small Causes.
(3.) IN Smt. Rajrani Kapoor v. Bhupendra Singh, 1990 (2) ARC 460, while interpreting Section 7 of Act 13 of 1972, rent has been held to include also house and water tax. In this view of the matter, therefore, the plea that the suit as whole or any part thereof was not cognizable by the Court of Small Causes has to fail. Even in the event of the plea regarding claim for arrears of house tax being not entertainable by the Court of Small Causes being accepted, the suit as a whole would not have failed. Only part of the claim would have been dismissed leaving it open to the respondent to bring action on the said cause of action before the appropriate court, subject of course to the law of limita tion. Under law it is not incumbent in each case where in addition to the subject- matter, cognisable by a Court, such matter is also included, which is not cognizable that the suit as a whole will become non-cognizable by the Court of Small Causes and be returned for presentation before a court of original jurisdiction on the regular side. Where of course, the cause of action relating to two is so intermingled that one cannot be entertained in the absence of the other, such a course will be required to be adopted.;