B.D. Agarwal, J. - (1.) Respondents No. 2 and 3 instituted original suit No. 197 of 1975 against the Petitioners in the Court of Small Causes, Bareilly for ejectment and recovery of certain arrears of rent besides damages for use and occupation. The suit brought was on the basis that the Petitioners had been tenants in the building in question. In the written statement a plea of want of title of the Respondents to the house was also raised whereupon the Court of Small Causes directed on July 21, 1975 that the plaint be returned to the Respondents Under Sec. 23 of the Provincial Small Cause Courts Act for being presented in proper court. The plaint thereafter came to be filed in the civil court on the regular side. After contest the suit was dismissed by the trial court and an appeal was filed by the Respondents against the decree. For the Petitioners an objection was raised before the appellate court to the effect that, in view of Sec. 96(4) of the Code of Civil Procedure, no appeal could lie except on a question of law since the appeal is from a decree in a suit of the nature forgivable in the Court of Small Causes. This objection has been repelled by the court below under the impugned order passed on 26th August 1981. Aggrieved the Petitioners have approached this Court under Article 226 of the Constitution.
(2.) Learned Counsel for the Petitioners refers to the provision contained in Sec. 96(4) of the Code which has been introduced by the amendment brought in by the Central Act, 1976 with effect from 1st February, 1977. This provides that no appeal shall lie. Except on a question of law from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees. In this case it may be noted, the valuation of the suit as appearing from the plaint was put at Rs. 600/ - only. In this connection it is also pointed that there has been provision contained in Sec. 102 of the Code which lays down that no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject matter of the original suit does not exceed three thousand rupees The bar placed Under Sec. 102 of the Code is in respect of a second appeal ; from Sec. 96(4) it will be noticed that the limitation created is in respect of a first appeal. The material fact is that the expression 'of the nature cognizable by the courts of Small Causes " is identical in both these provisions and in the context in which this expression appears it may easily be taken that it bears the same meaning. The expression appearing in Sec. 102 has come in for judicial interpretation earlier. In Allah Bux v/s. Nurul Hasan, 1931 ALJ 967 it was held by the Division Bench of this Court that the transfer of a Small Cause Court suit to the ordinary Civil Court Under Sec. 23, Provincial Small Causes Courts Act, makes it a regular suit and first appeal lies, but as the nature of the suit continues to be a small cause court one, a second appeal is barred Under Sec. 102, Code of Civil Procedure despite the fact that a question of title was considered to have been involved in the case or has been incidentally decided. This has been followed by the learned Single Judge in Jagannath Dalwala v/s. Bhola Nath AIR 1963 Alld. 258. The principle laid down is that despite the return of the plaint by the court of Small Causes Under Sec. 23, the nature of the suit does not change and it nonetheless remains a suit of the nature cognizable by the Court of Small Causes. It is worth notice also in this connection that subsequent to the return of the plaint there was no amendment sought or brought at the hearing so far as the plaint is concerned; the suit continues to remain based upon the alleged relationship of the landlord and the tenant though tire Defendants disputed as well the title asserted by the Plaintiffs. The decree passed is on the footing of the relationship of landlord and the tenant asserted by the Respondents being according to the trial court, not made out. Since the return of the plaint Under Sec. 23 does not make any difference so tar as the true nature of the suit is concerned, there may be no denying that Sec. 96(4) of the Code will apply and that accordingly the first appeal will not lie except on a question of law.
(3.) Learned Counsel appearing for the Respondents has relied on a recent decision of the learned Single Judge of this Court reported in Ambika Prasad v/s. Sri Harihar Prasad, 1985 LRJ 167. It has been argued on the basis thereof that a second appeal arising out of a suit where the plaint was returned for presentation to the regular side Under Sec. 23 of the Code was considered to be maintainable despite the provision contained in Sec. 102 of the Code. From a perusal of this decision it is manifest that there no such objection was raised at the stage when the first appeal came to be decided. The learned Judge has observed in paragraph 10 of the reported decision that the suit was treated as being on the regular side based on title and the first appeal came to be decided accordingly which could not be held to be without jurisdiction. In paragraph 11, moreover, it is observed that in the second appeal amendment had been allowed and the plaintiff was allowed to claim relief for declaration of title over the disputed house as was contended in the written statement and therefore, the suit for declaration of title over immovable property could not be said to be cognizable by the court of Judge Small Causes and as such the second appeal was clearly not barred Under Sec. 102 of the Code of Civil Procedure. This in my opinion makes a material difference so far as the facts hereof are concerned. Since the suit had been by amendment converted into one on title to the property, there may be no denying that the nature of the suit had undergone a material change and subsequent to this amendment the suit could no longer be considered as of the nature cognizable by the court of Small Causes. The decision, it may also be pointed, does not take notice of the view of this Court as reflected in the two decisions which I have referred above.;