- (1.) D. K. Seth, J. By an order dated 27th July, 1983, Suit No. 312 of 1980 filed before the Court of Small Causes Act was directed to be returned under Section 23 of the Provincial Small Causes Courts Act. By an application dated 28th July, 1983 the said order was sought to be recalled by the plaintiff. The said application was rejected by an order dated 29-7-1996, inter alia, holding that the said application under Section 151 of the Code of Civil Procedure is not maintainable because the said order is revisable. On 13th August, 1986, the plaintiff filed a revision which was registered as Miscellaneous Case Mo. 278 of 1986 before the learned District Judge, Varanasi, seeking condonation of delay under Section 14 of the Limitation Act which, however, was allowed before the said miscellaneous case was registered on 13th August, 1986, namely, on 7th August, 1987. By an order dated 14. 1. 1988 the revision was allowed by setting aside the order dated 27th July, 1983. It is against this order this writ petition has been preferred.
(2.) MR. Bhuvneshwar Prasad, learned Counsel for the petitioner, contends that the plaintiff cannot resile from his own admission which is apparent on the face of his application dated 8th November, 1982, being Annexure-14 to the petition wherein the plaintiff himself has stated that the defendant has filed a regular suit which is pending and in the said suit the title of the plaintiff has been challenged and the defendant has claimed right over the property denying the title of the plaintiff which is subject-matter in the said suit and that the learned Civil Judge had passed ad interim injunction against the plaintiff in the said suit. The plaintiffs have filed their documentary evidence in the said regular suit which had reached the stage of final hearing and is expected to be decided in December, 1982 and that the challenge having been thrown to tie title of the plaintiff the Small Cause Court suit should be stayed till the regular suit is decided and, therefore, the plaintiff had prayed for stay of further proceedings for 2 months. After such an admission it was not open to the plaintiff to challenge the order for return of the plaint. MR. Bhuvneshwar Prasad further contends that in view of Section 23 of the Provincial Small Cause Courts Act as soon as the title of the defendant is challenged and the relief claimed by the plaintiff is dependent upon proof or disproof of such title to the immovable property. It is incumbent upon the small cause court to return the plaint whether the plaintiff has title or not cannot be decided by the Court of Small Cause. Therefore, the revisional court while revising the order cannot step beyond the jurisdiction of the Court of Small Cause and cannot decide that the plaintiff has title and thereby set aside the order for return of the plaint. MR Bhuvneshwar Prasad further contends that the property originally belonging to the mother of the defendant who had mortgaged the said property by a document which was a deed of mortgage by conditional sale and the regular suit was a suit for redemption thereof. According to him the plaintiff had sought to deny the title from the person to whom the property was mortgaged and that the plaintiff was also made a party to the said suit as transfree. On these grounds he assailed the order passed in revision since impugned in the present petition. Mr. S. Banerji, learned counsel for the respondent, on the other hand con tends that despite of Section 23 of the Provincial Small Cause Courts Act the small cause court can decide the title if it is ancillary to the question without really decid ing the complicated question when apparently title is apparent to matter whether the title is disputed by the defendant. According to him mere raising of a dispute with regard to title, as such, does not eclipse the jurisdiction of the Small Cause Court nor such a situation attracts the provision of Section 23 of the Provincial Small Cause Courts Act. According to him the revisional court have found that the defendant had admitted that he was a tenant under the predecessor-in-interest of the plaintiff. The revisional court has based its decision on the basis of the said document on record from which it was seen that the defendant had paid rent as tenant in respect of the suit property to the predecessor-in-interest of the plaintiff. Therefore, according to him at that stage the small cause court was not called upon to decide the question of title but only to find out as to whether the relief claimed by the plaintiff is really dependent on the question of title to be decided or not. According to him it was not necessary to decide the title for the purpose of granting the relief on the basis of the document in which it was found that the defendant had paid rent to the predecessor interest of the plaintiff.
(3.) MR. Bhuvneshwar Prasad in support of his contention sought to rely on the decision in the case of Smt. Indira Kaur and others v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074 and Patel Naranbhai Marghabhai and others v. Deceased Dhulabhai Golbabhi and others, AIR 1992 SC 2009. But the said two cases deal with the question of mortgage which relates to title i. e. a question to be decided either in a regular suit. In a small cause suit we are concerned with the question whether there is any real dispute as to title or not. For our present purpose it is not necessary to refer to the said decisions, which has no manner of application in the facts of this case. He further relies on the judgment in the case of Ram Jiwan Misra v. Smt. Kallo and another, 1980 ARC 522, in support of his contention that even when the defendant do not set up title in themselves but when the title of the plaintiff is denied and the title is set up to a third party then also the title is disputed. He also relies on the decision in the case of Virendra Pratap Shukla v. Ram Swaroop and others, 1983 ARC 179 in support of his contention that if the question of title is involved then the plaint is required to be returned. Mr. Banerji on the other hand relies on in the case of Abdul Kalam v. Abdul Majid and another, 1992 (1) Civil and Revenue Cases 657 in order to sustain his contention that mere raising of a dispute to title does not attract Section 23 of the Provincial Small Causes Court Act. According to him the question of grant of relief of ejectment claimed by the plaintiff is dependent not on the question of title but on the question of existence of proof of the relationship of landlord and tenant, there fore, at every moment whenever a dispute is raised in regard to the title the Court does not become bound to return the plaint.;