- (1.) SHISHIR Kumar, J. Heard Sri Santosh Kumar Mishra learned counsel for the petitioner and Ms. Rama Goel appearing for the respondent.
(2.) THE present writ petition has been filed for quashing the orders dated 23. 9. 2008 and 7. 1. 2008 passed by Judge Small Causes Courts, Bareilly (Annexure 7 and 5 respectively to the writ petition ). A suit has been filed by the respondent Waqf against the petitioner for ejectment and arrears of rent before the Judge Small Causes Court on the ground of default. The Judge, Small Causes Court, vide its order dated 7. 1. 2008 allowed the application and directed that petitioner will handover the possession of the premises in dispute. Petitioner aggrieved by the aforesaid order filed a revision. That revision too has been dismissed by order dated 23. 9. 2008, confirming the order passed by Judge Small Causes Court Act. Hence the present writ petition.
(3.) LEARNED counsel for the petitioner submits that in view of lease deed executed in favour of petitioner the suit filed by respondent itself was not maintainable before the Judge, Small Causes Court. Admittedly the open roof was leased out and with the permission of landlord petitioner had constructed the accommodation. Therefore, if the suit is filed before the proper court, meaning thereby before a Civil Court it will be maintainable but it is not maintainable before the Judge Small Causes Court for arrears of rent and ejectment. Learned counsel for the petitioner relied upon a judgment of this Court reported in 1981 ARC 693 (Radhey Shyam vs. District Judge, Allahabad and others ). Reliance has been placed upon paras 7 and 8 of the judgment, which are quoted below:- "7. In fact, the suit was filed for ejectment of the petitioner from the land in dispute and also, consequently, for possession of the property which had been constructed by the petitioner on the land in dispute. Section 15 (1) of the Provincial Small Causes Court Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of the Court of Small Causes. Article (4) of the Second Schedule, as amended by this State, reads as under: " (4 ). A suit for the possession of immovable 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. " "8. From a reading of Article (4), it is clear that a suit for possession of immovable property or for the recovery of an interest in such property has been excepted and, as such, it is not cognizable by the Judge, Small Causes Court. The only suit cognizable would be a suit by a lessor for eviction of a lessee from the building after the determination of the lease. Therefore, under Article (4), only such suits are cognizabe by the Judge, Small Causes Court where the building is the subject matter of the lease and there is a determination of the lease of the said building. In the instant case, the allegations in the plaint are that the land had been let out and;not the building. It has not been alleged that the petitioner is a lessee of the building. In fact, it is the case of the plaintiff in the suit that the building had been constructed by the petitioner with the permission of the plaintiff. It, therefore, cannot be held that the present suit is a suit by the lessor for eviction of a lessee from a building. In fact, it would be a suit for possession of the immovable property which would not lie in the Court of Judge, Small Causes. ";