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Sarjoo Prasad Vs. Iind Additional District Judge, Kanpur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 21 to 26 and 27 of 1974
Judge
Reported inAIR1975All13
ActsCode of Civil Procedure (CPC) , 1908 - Sections 7, 39 and 42 - Order 21, Rule 82 - Order 50, Rule 1; Uttar Pradesh Civil Laws (Amendment) Act, 1970; Uttar Pradesh Civil Laws (Amendment) Act, 1972 - Sections 9; Constitution of India - Article 14; Provincial Small Cause Courts Act, 1887 - Sections 23 - Schedule - Article 4; Specific Relief (Old) Act - Sections 9; Uttar Pradesh Urban Buildings (Regulation of Letting, Eviction and Rent) Act, 1972 - Sections 43; Specific Relief (New) Act - Sections 6
AppellantSarjoo Prasad
Respondentiind Additional District Judge, Kanpur and ors.
Appellant AdvocateK.L. Grover, Adv.
Respondent AdvocateTriloki Nath, ;J. Swarup and ;L.P. Singh, Advs. and ;Standing Counsel
DispositionAppeals dismissed
Excerpt:
.....power to transfer the decree to some other court for execution - hence, it cannot be said that the small cause courts have no power to pass a decree for possession of immovable property. (ii) transfer of suit - section 9 of u.p. civil laws (amendment) act, 1972 - cases pending between lessees and lessors - transfer on the basis of recording of evidence - held, no infringement of article 14 of constitution. (iii) provision of small cause court - schedule 2, article 4 (as enacted by u.p. civil laws (amendment) act, 1972 of provincial small cause courts act, 1887 - question of title raised in the suit between landlord and tenant after determination of lease - case is to be send to regular court. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules,..........nature referred to in the provisoto sub-section (2) of section 25 cf the bengal, agra and assam civil courts act, 1887, (whether its value exceeds two thousand rupees, or as the case may be, one thousand rupees, or not), or the proviso to sub-section (3) of section 15 of the provincial small cause courts act, 1887, instituted before the date of commencement of this act in any court other than a court of small causes or a court of civil judge or munsif exercising jurisdiction of a judge of a court of small causes and pending in that court immediately before the said date, not being a suit in which the recording of oral evidence for any party has commenced or concluded before the said date, shall upon the conferment of jurisdiction or enhanced pecuniary jurisdiction on a civil judge,.....
Judgment:

Satish Chandra, J.

1. Theseseven appeals raise common question and can conveniently be decided by a common judgment.

2. Building No. 51/10, Naugarha, in the city of Kanpur, was owned by respondents Nos. 3 to 5. The various appellants in these seven appeals were tenants of different portions of this building. On 21st January, 1965, respondents Nos. 3 to 5, the Landlords, applied under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to sue for the eviction of the tenants. After hearing the parties the Rent Control and Eviction Officer granted the requisite permission. The revisions filed by the tenants before the Commissioner as well as before the State Government failed and were dismissed. On 9th February, 1971, the Landlords filed seven separate suits in the court of the City Munsif, Kanpur, for the ejectment of the appellants from the accommodations in their respective possession.

3. Before the evidence was recorded in these suits the U. P. Civil Laws (Amendment) Act, 1972, (Act No. 37 of 1972), came into force on 20th September,1972. In virtue of Section 9 of this Act all the seven suits were transferred to the court of the Judge, Small Causes, Kanpur, who, after recording the evidence and hearing the parties, repelled the defence and decreed the seven suits. The tenants went up in revision before the District Judge, Kanpur. The District Judge, Kanpur, dismissed the revisions by a common judgment dated 2nd May,1973. Aggrieved against these orders, the tenants came to this Court under Article 226 of the Constitution. The learned Single Judge did not find substance in any of the submissions raised in support of the writ petitions and dismissed them. Hence the present appeals.

4. Apart from the principal question that Section 9 of the Act 37 of 1972 violated Article 14 of the Constitution, learned counsel for the appellants raised a couple of other points relating to the merits of their case. We may first dispose of these subsidiary points.

5. It was urged that the permission granted to the landlords under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act was vitiated byfraud practised by the landlords upon the authorities. The submission was that the landlords sought permission on the ground that they needed the premises for their personal residence, that during the pendency of the proceedings the landlords acquired a bungalow at 35, Cariappa Road, Cantonment Road, Kanpur, which amply satisfied their need for personal residence, that this fact was concealed from the Rent Control Authorities, and, that thus the landlords practised fraud upon the authorities.

6. From the evidence it is apparent that the bungalow in question was purchased by the mother and aunt of the respondents-landlords. The landlords not having bought any accommodation, it cannot be said that they practised fraud upon the authorities by not bringing this fact to their notice. Further, a perusal of the orders passed by the authorities below shows that the predominant ground upon which permission was granted was that the building in dispute was in a highly dilapidated condition end the landlords' case that it required reconstruction was true. The landlords' case that they would, after reconstruction of the building, utilise its first floor for residence and the ground floor for shops for business was accepted. There is no evidence that the landlords had not made good this assurance or that after reconstruction the premises in dispute have not been, utilised as mentioned in the application for permission. There is hence no substance in the plea that the landlords obtained the requisite permission by practising fraud.

7. In the next place it was urged that the provisions of the Code of Civil Procedure relating to execution of decrees against immovable property are not applicable to small cause courts, that in the present suit the plaintiffs prayed for a decree for ejectment from immovable property, that such a decree would be against immovable property and as such it could not be executed by the small cause courts and since the decree was not executable, it was a void decree; and so the small cause courts had no jurisdiction to pass such a decree. The submission is based upon a misapprehension of the true legal position.

8. Section 7 and Order 50, Rule 1, C.P.C. exclude certain specified provisions from the Small Cause Courts. Under Section 7(a)(iii) and clause (a) (ii) of Order 50, Rule 1, provisions relating to the execution of decrees against immovable property are excluded. In other words, the small cause courts do not have the power to execute decrees against immovable properties in accordance with the provisions of the Code and its Schedule.

9. Sections 38 to 42 of the Code are in Part IT, of which the sub-heading is 'General'. They do not deal with execution of decrees against immovable pro-perty, but with general matters, like transfer of decrees, powers of transferee courts irrespective of the nature of the decree. They will apply to small cause courts.

10. Section 38 of the Code provides that a decree may be executed either by the Court which passed it or by the court to which it is sent for execution. Section 39 of the Code provides that the court which passed a decree may, on the application of the decree-holder, send it for execution to another court. The small cause court possesses this power. It can send a decree passed by it for execution to the regular courts. A decree for possession of immovable property being a decree against immovable property may not be executable by the small cause court itself, but, nonetheless, under Section 39 it has the power to send such a decree for execution to a court which can execute it. It cannot hence be said that the small cause courts have no power to pass a decree for possession of immovable property.

11. Section 42 of the Code, as it originally stood, provided that the transferee court while executing a decree shall have the same powers as were possessed by the transferor court. In Ram Lochan v. Mahadeo Prasad Singh, AIR 1970 All 544 a Full Bench of this Court held that under this provision a decree passed by a small cause court could not be executed against immovable property even by the regular courts, because in such cases the powers of the regular courts were only such as were possessed by the transferor court, namely, the small cause court. Subsequently the Legislature amended Section 42 by the Civil Laws (Amendment) Act, 14 of 1970. After the amendment this provision provided that the court executing a decree sent to it shall have the same powers in executing such decrees as if it had been passed by itself.

12. Thus if a small cause court decree is transferred to a regular civil court, the transferee court having powers to execute decrees against immovable properties, will execute the small cause court decree against immovable property. It cannot hence be said that a decree against immovable property passed by the small cause court is inexecutable.

13. The principal question, however, is whether Section 9 of the U. P. Civil Laws Amendment Act, 1972, infringed Article 14 of the Constitution. This section provides-

'9. Transitory provisions.-- Any suit of the nature referred to in the provisoto Sub-section (2) of Section 25 cf the Bengal, Agra and Assam Civil Courts Act, 1887, (whether its value exceeds two thousand rupees, or as the case may be, one thousand rupees, or not), or the proviso to Sub-section (3) of Section 15 of the Provincial Small Cause Courts Act, 1887, instituted before the date of commencement of this Act in any Court other than a Court of Small Causes or a Court of Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes and pending in that Court immediately before the said date, not being a suit in which the recording of oral evidence for any party has commenced or concluded before the said date, shall upon the conferment of jurisdiction or enhanced pecuniary jurisdiction on a Civil Judge, Munsif, District Judge or Additional District Judge or on a Court of Small Causes under the said provisions stand transferred to such Court and shall be decided by that Court.'

14. In substance, this section provides for the transfer of suits pending in the regular courts to the court of smallcauses, if-

(a) it is a suit by the lessor for the eviction of the lessee from a building after the determination of his lease, or for recovery from him of rent or damages, and

(b) it is pending in a regular civil court and recording of oral evidence for any party has not commenced or concluded before the commencement of the Civil Laws Amendment Act, 1972, that is, on 20th September, 1972.

15. It was urged that this provision singles out those pending suits in which recording of evidence has not begun for an adverse and hostile treatment by making them triable by small cause courts, with the result that the trial of such suits would be summary and that the litigants will have no right of appeal but only a revision on a question of law, whereas a suit of a similar kind would continue to be tried by the regular civil court where the litigant will have a fullfledged trial as well as right of appeal and second appeal, if the fortuitous circumstance that the recording of evidence has begun, has taken place. According to the appellants, the recording of evidence affords no basis for classifying pending suits between landlords and tenants.

16. It is well settled that under Article 14 of the Constitution the State is not to deny to any person equality before the law or the equal protection of the laws within the territory of India; but this does not preclude the legislature from making a reasonable classificationfor the purposes of legislation. The said classification has to pass two tests, namely, (1) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group, and (2) the differentia must have a rational relation to the object sought to be achieved by the statute in question.

17. It is true that the procedure in a court of small causes is summary Section 17 of the Provincial Small Cause Courts Act provides-

'The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits:.....'

Order 50, Rule 1, C.P.C. by clause (b) excludes Order 18, Rules 5 to 12, from the small cause courts. These rules provide for the manner of recording oral evidence. Rules 13 to 17 of Order 18 are applicable to small cause courts. Rule 13 provides that in cases in which an appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length; but the Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the Judge, and shall form part of the record. In small cause cases no appeal is allowed. The .Small Cause Court Judge is, therefore, required to make only a memorandum of the substance of the deposition of a witness. He need not record his deposition in extenso.'

18. Order 20, Rule 4, C.P.C. provides that judgments of small cause courts need not contain more than the points for determination and the decision thereon.

19. Thus the trial of a suit in a small cause court is summary in the sense that the oral evidence is not recorded in the usual complete narrative form and that the judgments need not contain the reason for the decision. Section 25 of the Small Cause Courts Act provides for a revision against the decision of a court of small causes. No appeal or second appeal lies against such a decision. The learned counsel is, therefore, justified in pointing out that when a suit is transferred from the regular civil court to the court of small causes, the litigants are affected adversely in the sense that they are not entitled to a fullfledged trial nor do they have a right of appeal or second appeal.

20. The legislature, however, has classified pending suits between lessorsand lessees on the basis of the recording of evidence. If the recording of evidence has not commenced, a suit is liable to be transferred to the small cause court otherwise not.

21. As already seen, the manner of recording the evidence is one of the principal differences in the procedures applicable to an ordinary civil court and the court of small causes. The transfer of a pending case, after the recording of oral evidence in it has begun, will mean that in the same case two different procedures will become applicable : part of the evidence would have been recorded by the civil court in the form of a complete narrative, but after transfer the remaining evidence would be liable to be recorded in a summary manner by the Judge, small cause court. That would have been neither feasible nor proper The recording of evidence thus furnishes an intelligible differentia to classify pending cases for purposes of transfer.

22. The next test is whether the differentia had a rational relation to the object sought to be achieved.

23. Suits for possession of immovable property, including those by a landlord, were outside the purview of small cause courts. The U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. No. 13 of 19'72. which came into force on 15th July, 1972, by Section 20(6) makes suits by a landlord for eviction of a tenant (after the determination of his tenancy) from a building cognizable by the small cause courts. The statement of objects and reasons appended to that Act provided-

'Suits for eviction on the grounds specified in Section 3 of the old Act which lay in the Court of Munsif or Civil Judge, shall now lie in the Courts of Small Causes. This will do away with the multiplicity of appeals, as only a revision will lie against the decision of the Small Cause Court as in other small cause cases.'

Thus the object of transferring such suits to the court of small causes was to avoid multiplicity of appeals and to have a speedy trial and decision.

24. The U. P. Civil Laws Amendment Act repealed Section 20 (6) of the U. P. Act 13 of 1972, and re-enacted Article 4 of the Second Schedule of the Provincial Small Cause Courts Act. The new Article 4 conferred jurisdiction upon the small cause courts to try suits by lessors for the eviction of lessees from a building after the determination of their lease and for the recovery from them of rent and compensation for use and occupation after such determination of lease. The transitory provision contained in Section9 of the U. P. Civil Laws Amendment Act for transferring pending suits only sought to achieve the proclaimed object, namely, that suits of the mentioned kind should be speedily decided and multiplicity of proceedings should be avoided. The differentia that only those suits were to be transferred to the small cause court in which recording of evidence had not begun is, in our opinion, reasonably related to the object sought to be achieved, because transfer of suits in which evidence has already been recorded partly by the civil court would delay the trial by requiring the small cause court to record evidence afresh. In case the existing evidence was permitted to remain on the record as such and further evidence was to be recorded in a summary manner by the Judge, Small Cause Court, the position would have become complicated. To avoid any complications, suits in which recording of oral evidence had begun were left out. Evidently, the classification was reasonable, theoretically as well as from a prac-cal point of view.

25. For the appellants, reliance was placed upon Jalan Trading Co. P. Ltd. v. Mill Mazdoor Sabha, AIR 1967 SC 691. In that case Section 33 of the Payment of Bonus Act, 1965, was held violative of Article 14 of the Constitution. That decision was considered by the Supreme Court in M/s. Jain Bros. v. Union of India, AIR 1970 SC 778 and it was held that the retrospective operation of the Payment of Bonus Act, 1965, which came into force on May 29, 1965, was made by Section 33, the provisions of which were held to be violative of Article 14, to depend on the pendency on that date of any dispute regarding payment of bonus relating to any accounting year from 1962 onwards. The year 1962 had apparently no connection with the date on which the Act came into operation which was May 29, 1965. It was this special feature that rendered the provision bad. The case has, in our opinion, no application to the present one.

26. One of the learned counsel appearing for the tenant-appellants submitted that the Act makes invidious distinction between suits relating to landlords and tenants on the one hand and other kinds of suits for possession in respect of immovable property on the other -- for instance, suit for the ejectment of a trespasser. The argument was that there was no justification for leaving out suits for the ejectment of trespassers from the purview of small cause courts. This argument has no relevance to the vires of Section 9, which only provides for pending suits of the nature which are made cognizable by the Small Cause CourtsAct by another provision of the Act. Section 4 of the Civil Laws Amendment Art repealed and re-enacted Article (4) of the Second Schedule of the Provincial Small Cause Courts Act. Under it suits for possession of immovable property toy a lessor against a lessee after the determination of his lease alone were made small causes.

27. The argument may be considered in regard to the constitutional validity of the new Article 4 aforesaid. Suits between landlords and tenants after the determination of lease are not expected to raise any question of title. Even if a question of title is raised, the suit is liable to be transferred back to the regular civil court in view of Section 23 of the Small Cause Courts Act. Suits for ejectment of trespassers are, on the other hand, likely to raise issues relating to title. If the plaintiff in a suit for ejectment of a trespasser relies merely upon his prior possession and dispossession by the defendant, he would sue under the Specific Relief Act, rather than incur the expense and time consumed toy a regular trial in the civil courts, since for relief against trespassers in cases where title was not sought to be established or disputed a provision was already there in the Specific Relief Act (Section 9 of the old Act and Section 6 of the new one). It was hence unnecessary for the legislature to have provided for suits for ejectment against trespassers to be tried by small cause courts. Article 4 of the Civil Laws Amendment Act (sic) (Provincial Small Cause Courts Act?) does not suffer from the vice of discrimination.

28. In one of the appeals it was pointed out that clause (r) of Section 43 of the U. P. Urban Buildings (Regulation of Letting, Eviction and Rent) Act, 1972, provided that suits for eviction of tenant instituted with the permission referred to in Section 3 of the old Act or any proceeding arising out of such suit pending immediately before the commencement of 'this Act' may be continued and concluded as if this Act has not been passed. It was urged that the phrase 'this Act' in clause (r) means not only the Act of 1972, but also all connected Acts, that is to say, all other Acts which dealt with the same matter, and, therefore, pending suits filed on the basis of permission granted under Section 3 of the old Act were to continue and be concluded in the courts where they were instituted and could not be transferred.

29. The argument has only to be stated to be rejected. The phrase 'this Act' occurring in Clause (r) cannot but refer to the Act of 1972 itself. By no stretch of imagination could it refer to an Act which was not even on the statutebook on 16th July, 1972, when the Act of 1972 came into force. The Civil Laws Amendment Act came into force later on, namely, on 20th September, 1972. The phrase 'this Act' occurring in Clause (r) could not possibly refer to such future legislative enactments.

30. The various points urged in support of these appeals having no substance, the appeals are dismissed with costs.


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