A.P.Mishra - (1.) -Heard learned counsel for the parties. At the stage of admission the respondent was served and counter and rejoinder affidavits have been exchanged, as such the present revision is being disposed of finally at this stage.
(2.) THE applicant by means of this revision has challenged the order dated 12th April, 1985 passed by the 1st Additional District Judge Ghaziabad by virtue of which the suit for recovery of rent in arrears and for damages for use and occupation was decreed. THE main ground of attack of the learned counsel for the applicant is that the Judge Small Cause Courts has no jurisdiction to decide the suit which is not for the eviction and thus the suit merely for arrears of rent and damages is not cognizable by him. It was also contended that since the present suit, as disclosed by paras 1 and 2 of the plaint, is for open piece of land, the Judge Small Cause Courts has no jurisdiction to decide it. THE latter point urged by the learned counsel for the applicant is not sustainable as per judgment on issue no. 2, a certified copy of which has been filed before me. Ex. 1 shows that the suit premises comprises of plot of land with two Kothas and a tin shed. Thus the tenancy referred is not for open piece of land and the contention to the contrary is not sustainable. Regarding first point, under section 15 of the Provincial Small Cause Courts Act all suits which have been included in the second Schedule is not cognizable by the Court of Small Causes. There is U. P. amendment to this section by virtue of which a proviso has been added which is quoted hereunder : " Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof after such determination of lease, the reference in this sub-section to two thousand rupees shall be construed as a reference to five thousand rupees." It is significant here that Article 4 of Schedule II specifies a suit for the possession of immoveable 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 lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Thus it is clear that under this Article the suit for recovery of interest in immoveable property which includes Tent and compensation has been included and by virtue of the said amendment further clarification has been made that it relates to suits where lease has been determined which has been made cognizable by the Judge Small Causes Court. Thus Article 4 comes in a suit for rent and damages and this being under Second Schedule, such suit would not be cognizable by the Judge Small Cause Court. Similar is the position under Article 8 of Schedule II which speaks about a suit for recovery of rent, other than house rent, unless the Judge or the Court of Small Causes has been expressly invested by the Government with authority to exercise jurisdiction with respect thereto. Reliance has been placed on this by the learned counsel for the respondent that only rents other than house rent has been included and present case being of house rent would by necessary implication not only be excluded from Second Schedule but would be such suit which would be cognizable by Small Causes Court. It is significant that this Article has been excluded by the U. P. Amendment, therefore, reliance placed by the counsel for respondent is not sustainable. Thus by virtue of section 15 read with Articles 4 and 8 of Schedule II as amended by the U. P. Amendment the suit for merely rent and damages would not be cognizable by the Judge Small Causes Court but it would be a suit covered under Schedule II.
(3.) IN Munni Lal v. Ajai Kumar, 1983 (VI) ARC 282, and Sundar Dass v. Ram Prakash, AIR 1977 SC 1201 also it has been similarly decided. Thus such suits would not be cognizable and Small Causes Courts will have no jurisdiction to entertain such suit and the decree passed therein would be without jurisdiction. Learned counsel for the respondent, on the other hand, urged that once the applicant having submitted to the jurisdiction of the court he is excluded from raising such question before the executing court. He relied on the case of National Coal Co. Ltd. v. L. P. Dave, AIR 1956 Patna 294 wherein it has been held : " Where the want of jurisdiction has to depend upon proof of certain facts, then if those facts have not been raised and proved, a party cannot be permitted to raise a plea of want of jurisdiction so as to render its decision void and ineffective. Moreover, when a party submits to the jurisdiction of a court and takes a chance of getting a decision in its favour, it cannot be permitted to challenge the jurisdiction of that court after the decision has gone against it. " Similar view was taken in AIR 1962 Patna 338 Mukund Ram Tanti v. S. I. Raza, Registrar Trade Union Bihar. The principles laid down in the aforesaid decisions does not cover the facts of the present case. In the present case want of jurisdiction is not depended on proof of any facts. The suit is admitted between the parties to be only for recovery of rent and compensation with prayer for evidence. Thus where court inherently lacks the jurisdiction, the question could always be raised even before executing court.;