Poonam Srivastav, J. - (1.) HEARD learned counsel for the petitioner and the counsel for the contesting respondent.
(2.) THE instant writ petition has been filed against the judgment and orders dated 23.4.2002, passed by the Judge, Small Causes Court, and 3.2.2005, passed by the Additional District Judge/Special Judge (Economic Offences), Allahabad. The petitioner instituted S.C.C. Suit No. 107 of 1998, Kailash Chandra Gupta v. Subhash Chandra Gupta for eviction on the ground of arrears of rent. The contesting respondent moved an application 70C stating therein that the Judge, Small Causes Court, does not have any jurisdiction since the question of title is involved. The plaintiff claims himself to be owner on the basis of Will, which is disputed by the contesting respondent, who happens to be brother of the plaintiff. Another Suit No. 18 of 1993 was also instituted by the petitioner, which was pending before the Judge, Small Causes Court and the plaint thereof was also annexed with the said application. After hearing the counsels for the respective parties, the application was allowed and the plaint was returned under Section 23, Provincial Small Causes Court Act. The time barred S.C.C. Revision No. 806 of 2003 was instituted with an application for condonation of delay bringing his personal difficulties on record and detailing reason why he could not file the revision within time. Though he has shown his disability in the affidavit supporting the application for condonation of delay on account of personal difficulties. It is brought to the notice of the Court that he has been continuously contesting the other Suit No. 18 of 1993 but he did not care to file revision. The order sheet of the said suit shows that he had attended the Court from 23.3.2002 up till 22.7.2003 and amendment application was also moved on 4.5.2002. The revisional court in the circumstances, did not find cause shown in the delay condonation application in filing revision barred by 13 months is sufficient to condone the delay. Accordingly, S.C.C. Revision was dismissed by the Court.
(3.) LEARNED counsel for the petitioner has laid emphasis that the Judge, Small Causes Court wrongly returned the plaint, as the respondent is a tenant since a very long time and relationship of landlord and tenant existed between them. Assuming that there was some title dispute even then in view of the principles laid down by this Court in the case of Smt. Munni Devi and others v. Xth Additional District and Sessions Judge, Agra and others, AIR 1990 All 169, the Judge, Small Cause has jurisdiction to decide the question of title incidentally involved in a suit for eviction. Section 23 of the Small Causes Court Act, does not make it obligatory on the Court to return the plaint once a question of title is raised by the tenant in such a suit. I have taken into consideration the aforesaid decision that the Judge, Small Causes Court can decide the question of title incidentally only when the tenant dispenses his ownership or he is landlord but in the instant case, plaint was returned on two counts, one that both the plaintiff and defendant were brothers. The plaintiff claims his title on the basis of Will whereas claim of the respondent is that question of title was not involved incidentally but directly. The validity of Will had to be gone into, therefore, Judge, Small Causes Court rightly returned the plaint.;