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Akhilesh Chand Varshney Vs. Smt. Bhagwati Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1902 of 1974
Judge
Reported inAIR1976All42
ActsProvincial Small Cause Courts Act, 1887 - Sections 9
AppellantAkhilesh Chand Varshney
RespondentSmt. Bhagwati Devi and ors.
Appellant AdvocateB.D. Tripathi, Adv.
Respondent AdvocateK.M.L. Hajela, Adv.
DispositionAppeal dismissed
Excerpt:
civil - forum of trial - section 9 of provincial small cause courts act, 1887 - suit not to be split - when few of the relief sought is triable by small cause courts and others not triable by it - such suit triable on the regular side. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the..........all lj 670 = (air 1970 all 604), it was held that the court of small causes is a court of preferential jurisdiction and not of exclusive jurisdiction. learned counsel for the appellant contended that in view of the wordings of section 9 of the act the court of small causes was now a court of exclusive jurisdiction and not a court of preferential jurisdiction. in my opinion, it is not necessary to go into this question for the purposes of deciding this appeal the principal question in this appeal is what would be the proper forum for a suit which did not wholly come within the purview of the court of small causes in view of the amended provisions of item no. 4 of schedule ii of that act. the opening words of section 9 refer to 'any suit' of the nature described in the section. it does.....
Judgment:

A. Banerji, J.

1. This is an appeal by the defendant-tenant. Learned counsel for the appellant contended that the decree passed by the court below is bad in law for the Court of Munsif Koil, Ali-garh, had no jurisdiction to try the suit in view of the provisions of Section 9 of the U. P. Civil Laws (Amendment) Act, 1972. He further contended that the suit could only be tried by a Court of Small Causes or any other court invested with such power. Learned counsel for the respondents, however, contended that the suit was properly tried by the Court of Munsif Koil on the regular side as the entire suit could not be tried by the Court or Judge Small Causes or any court invested with the powers of a Court of Small Causes,

2. The suit in the present case was filed on 1st June, 1971, in the Court of Munsif Koil, Aligarh. In the suit four reliefs were asked for -- firstly, for a decree for possession of ejectment from the suit premises; secondly, for recovery of rent and damages amounting to Rupees 1654.95 with pendente lite and future interest; thirdly, for a decree for damages for the use and occupation from the date of the suit till the date of actual delivery of possession at the rate of Rs. 25/- per month and fourthly, for a declaration that the reasonable rent of the accommodation, was Rs. 25/- per month. It may be mention here that the suit related to a premises which was a pre-1951 construction. The suit was filed on the basis of permission obtained by the plaintiff to sue for the ejectment of the defendant. The defendant resisted the suit on a variety Of grounds and claimed that the suit was barred by the U. P. Act III of 1947 and U. P. Act XIII of 1972. It was also claimed that there were no arrears of rent and the defendant was not liable to ejectment. The issues in the suit were framed on the 24th of May, 1973, and the evidence of the plaintiffs' witness Gopal Krishan was recorded on l4th January, 1974. The evidence of the defendant's witness was recorded on the 15th of January. 1974, and the suit was decreed on the 19th March, 1974.

3. It is not disputed that the suit, when instituted, lay in the court of Munsif and was triable as a regular suit. However, in view of the provisions of the U. P. Civil Laws (Amendment) Act, 1972, hereinafter referred to as the Act, all suits for the ejectment of a tenant and for the recovery of arrears of rent and damages for its use and occupation became cognizable under the provisions of the Provincial Small Cause Courts Act, 1887. Section 9 of the Act reads as follows:--

'Transitory provisions. -- Any suit of the nature referred to in the proviso to Sub-section (1) and Sub-section (2) of Section 25 of 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.'

The aforesaid provision read with amended Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 and Section 15 of the Provincial Small Cause Courts Act. 1887, makes it clear that any suit for the ejectment of a tenant from a building and for the recovery of arrears of rent and for the recovery of damages for their use and occupation, which had been instituted prior to the coming in force of the Act but in which the recording of evidence had not commenced or concluded before the 16th September, 1972, stood transferred to a Court mentioned above. Necessary amendments were also made in the Provincial Small Cause Courts Act, 1887 and Item No. 4 of Schedule II was amended. It made a suit for the ejectment of a lessee from a building after determination of a lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease, cognizable by the Court of Small Causes. Such a suit was triable as a suit under the Provincial Small Cause Courts Act. Prior to this amendment suits for ejectment and arrears of rent or for the recovery of compensation for use and occupation were not cognizable by a Court of Small Causes. Section 9 of the Act further stipulated that such suits were to be tried as a suit for Small Causes and could also be tried by courts other than the courts of Small Causes on whom such jurisdiction had been invested.

4. It is well settled that the forum of a suit depends on what has been stated in the plaint itself. The relief claimed in the suit indicated that the present suit was not merely a suit for ejectment of the defendant-tenant, and for the recovery of arrears of rent and for the recovery of damages for the use and occupation but also for a declaration in regard to what was the annual reasonable rent of the premises. It will at once be noticed that while the first three reliefs were such which came under the purview of the Small Cause Court or courts invested with the powers of Small Cause Court, but the relief as regards the declaration of the annual reasonable rent of the premises was one which did not come within the ambit and scope of the Provincial Small Cause Courts Act. 1887. A suit in which a relief for a declaration or the fixation of the reasonable annual rent was sought was not triable by a Court of Small Causes, or by a court invested with the powers of a Small Cause Court. So in the present suit three of the reliefs namely, for ejectment, for arrears of rent and for damages for use and occupation could be tried by the Court of Small Causes but the other relief in respect of the declaration was not triable by the Court of Small Causes.

5. The question, therefore, that arises is what would be the forum of such a suit. Whether such a suit is to be tried in the regular side or as a suit under the Provincial Small Cause Courts Act, In the Full Bench case of Manzoorul Haq v. Hakim Mohsin Ali, 1970 All LJ 670 = (AIR 1970 All 604), it was held that the Court of Small Causes is a court of preferential jurisdiction and not of exclusive jurisdiction. Learned counsel for the appellant contended that in view of the wordings of Section 9 of the Act the Court of Small Causes was now a court of exclusive jurisdiction and not a court of preferential jurisdiction. In my opinion, it is not necessary to go into this question for the purposes of deciding this appeal The principal question in this appeal is what would be the proper forum for a suit which did not wholly come within the purview of the Court of Small Causes in view of the amended provisions of Item No. 4 of Schedule II of that Act. The opening words of Section 9 refer to 'any suit' of the nature described in the section. It does not refer to 'any relief'. Thus if a suit of the nature mentioned in Section 9 of the Act had been instituted prior to the date of coming in force of the Act, and in which the recording of evidence had not commenced or concluded, it stood transferred to the Court of Small Causes or to other courts to be tried as a suit under the Provincial Small Cause Courts Act. The present suit was not exactly of the nature as has been described in Section 9 of the Act. If it was so then certainly the provisions of Section 9 would be applicable to the present case. In that case the suit would only be triable as a suit on the Small Causes side. On the contrary, if it was not a suit wholly pf the nature, as has been referred to in Section 9 of the Act, then in my opinion such a suit could not be exclusively tried under the provisions of the Provincial Small Cause Courts Act. As indicated above, the present suit called for the determination of several questions. One of the questions namely, the declaration and the fixation of annual reasonable rent, was not cognizable by the Court of Small Causes. This suit had to be tried on the regular side. In my opinion, even if a part of the suit is triable on the regular side then the entire suit had to be tried on the regular side notwithstanding that a part of it could be tried under the provisions of the Provincial Small Cause Courts Act. It is not possible to split such a suit into two parts nor is it permissible for the Court of Small Causes to try the suit in respect of the issue regarding the fixation of annual reasonable rent. It is also well settled that every suit is to be tried on the regular side unless the law specifically barred such a suit from being tried on the regular side. There is nothing in the amended sections of the aforesaid Act which enables a Court of Small Causes or a court invested with the powers pf a Court of Small Causes to try also suits in which a relief other than of ejectment and arrears of rent was orayed for. Consequently, in my opinion, the present suit was triable by the Munsif and had been rightly tried as such. I, therefore, do not find any force in the contention raised by the learned counsel for the appellant that the decree passed by the Court is without jurisdiction.

6. No other point was argued.

7. In the result, therefore, the appeal fails and is dismissed with costs.


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