Shishir Kumar, J. - (1.) THIS writ petition has been filed for quashing the order dated 24.7.2008 passed by Additional District Judge, Court No. 12, Lucknow in SCC Suit No. 36 of 2007 (Mohammad Irshad v. M. Naseem) as well as for quashing the judgment and order dated 19.3.2007 passed by respondent No. 2, Judge, Small Causes Court, Lucknow rejecting the application under sec tion 23 of the Provincial Small Causes Courts Act in SCC Suit No. 64 of 2000.
(2.) THE facts arising out of the writ petition are that SCC Revision No. 64 of 2000 was filed by respondent No. 3 being a landlord against petitioner for re covery of rent and ejectment. A written statement was filed, subsequently, the same was amended and denied the title of the plaintiff in respect of shop in question and claimed that defendant-petitioner is in possession of the shop in question along with adjacent shop (in the tenancy of his brother) and owner of the said both shops in the Lucknow Development Authority and defendant has clearly alleged that plaintiff is not the owner and landlord of the building No. 47/3/1 Vidhan Sabha Marg, Lucknow and defendant is not the tenant in the shop No. 6 of Building No. 47/3/1 and actually owner of whole property No. 47/3 is the property of Lucknow Improvement Trust, Uttar Pradesh, Lucknow, managed and controlled by the Board and actually its landlord is the Lucknow Development Authority and the plaintiff being an employee of the Improvement Trust, Lucknow for the realization of the rent was authorised to realize the rent and after filing the suit the defendant has paid a sum of Rs. 31, 500/- to the plaintiff-respondent. THE premises in question is built on Plot Nos. 7, 8 and 9 situated at Station Road, Husainganj, Lucknow and that has been purchased by the real brother of the defendant. This fact has clearly been stated in the amended written statement. From the perusal of the written statement, it clearly appears that property does not belong to plaintiff-respon dent (Annexure 1 to the written statement) dated 22.3.2002 issued by the Deputy Secretary, Lucknow Development Authority with a proposal that the lease hold land whose owner is Lucknow Improvement Trust was given to patta to Maharaj Kumar, Mohd. Amir, Haider Khan and matter is sub judice in Second Appeal No. 271 of 1973. Prior to execution of sale deed in favour of the brother of the defendant-petitioner, an application was filed before the Trial Court for return of the plaint to the plaintiff Mohd. Naseem exercising the power under section 23 of the Provincial Small Causes Courts Act on 9.11.2005. An objection was filed and complete document was also annexed disputing the title of the defendant-respondent, as such, the Court below should have rejected the plaint or to return it under section 23 of the Act. But the Trial Court rejected the application vide its order dated 19.1.2004 taking into consideration judgment in M/s. Rakesh & Company v. M.S. Hiralal and Sons, 2002 (1) SCC 214. A revision was filed but the same has also been dismissed vide its order dated 24.7.2008. It has been submitted by the learned Counsel for the petitioner that as from the record, it was clear that plaintiff-respondent is not the landlord and has got no title over the property in question, therefore, suit for recovery of ar rears of rent and ejectment was not maintainable. Both the Courts below have not taken into consideration the sale deed in question filed by petitioner, which clearly goes to show that it was given on lease and that was terminated later on and at last a litigation has been started and the second appeal is pending. Reliance has been placed upon a judgment of the Court in Smt. Kela Devi and others v. Rameshwar Dayal, 1982 (1) ARC, 149. Relying upon the aforesaid judgment, learned Counsel for petitioner submits that in case, the tenant disputes the title of the plaintiff as landlord, the said question is beyond jurisdiction of the Judge, Small Causes Court and section 23 is attracted. Further reliance has been placed upon a judgment of the Court in Virendra Prasad Shukla v. Ram Swaroop and others, 1983 ARC 179. Placing reliance upon the aforesaid judgment, learned Counsel for petitioner submits that in case the title of the landlord is disputed, then Judge, Small Causes Court will have no jurisdiction to decide the suit filed by the plaintiff.
(3.) ON the other hand, learned Counsel for respondent-landlord submits that initially written statement was filed, there was no denial by petitioner regarding title of the answering respondents. Subsequently, by way of amend ment, the same has been done. Further it has been submitted that this contro versy has already been settled by this Court as well as by the Apex Court that the question of title raised in the suit before the Judge, Small Causes Court is an incidental question, which Small Causes Court could consider. The Courts below were justified to that effect entertaining the suit filed under the Judge, Small Causes Court. A finding has been recorded while rejecting the application filed by petitioner dated 19.3.2007 that from the perusal of the order dated 19.1.2004, it clearly appears that an application filed on behalf of petitioner under Order XV, Rule 5 was rejected. A revision was filed and in the revision, a finding has been recorded that as whether the question of title was involved or not, it could only be seen after hearing both the parties on the basis of evidence. Therefore, at this stage after a lapse of three years, this cannot be seen and the same has already been decided in Revision No. 11 of 2004. The Revisional Court has also considered the same and rejected the contention of the applicant. After hearing both the parties at length and after perusal of the record, it clearly appears that suit was filed in the year 2000 against the peti tioner. A written statement was filed in 2003 but there was no denial of title of plaintiff-respondent. It was subsequently by way of amendment, title has been denied. It appears that defence of the petitioner was struck of under Order XV, Rule 5. A revision was filed and Revisional Court has recorded a finding that unless and until this question is decided because it was disputed by petitioner and it will be seen by the Court. The application for rejecting or return the plaint regarding maintainability of the suit before the Small Causes Court was filed about five years after the suit was filed. Therefore, in that circumstances, the application was rejected holding therein that it is an incidental question, which can be considered by the Judge, Small Causes Court. In Shamim Akhtar v. Iqbal Ahmad and another, 2001 (42) ALR 131 (SC) the Apex Court has considered the issue and in paragraph 12 of the judgment, it has been held that it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the prop erty. The tenant-respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff cannot avoid the eviction pro ceeding under the Rent Control Act. That is neither the language nor the pur pose of the provisions of section 23 (1) of the Small Causes Courts Act. Relevant para 12 is being quoted below: - "12. The Trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under section 23 (1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally de termine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. The power vested under sub-section (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under section 20 (2) (f) alleging that she had inducted respondent No. 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed, the Trial Court, at the first instance, had accepted the plaintiff's case holding, inter alia that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, indisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the Competent Court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenant- respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in section 23 (1) of the Small Causes Courts Act.";