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Kailash Chand and ors. Vs. Lalta Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 180 of 1975
Judge
Reported inAIR1976All232
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act - 1972 - Sections 9
AppellantKailash Chand and ors.
RespondentLalta Prasad
Advocates:S.N. Sahai and ;R.B. Sahai, Advs.
DispositionRevision allowed
Excerpt:
.....small cause jurisdiction to try it. in the circumstances of the case, parties will bear their own costs in this court as well as in the court of the district judge......certain provisions of the provincial small cause courts act, 1887, the bengal, agra and assam civil courts act 1857, the code of civil procedure 1908 and the u. p. urban buildings (regulation of letting, rent and eviction) act, 1972. by virtue of the amendments, suits by lessors for the eviction of lessees from buildings after determination of the lease became suits cognizable by courts of small causes. the additional munsif, fatehpur, to whose court the suit had been transferred, held, by his order dated september 2, 1974, that, since the suit was valued at rupees 1,409,32 p., it was cognizable only by the court of the district judge, fatehpur, and that it stood transferred to that court. he accordingly directed the file to be sent to the court of the district judge. the district.....
Judgment:
ORDER

G.C. Mathur, J.

1. The important question, which arises for consideration in this case, is as to which of the courts at Fatehpur has jurisdiction to entertain the suit.

2. The suit was filed on April 25, 1972, in the court of Munsif at Fatehpur. It was a suit for eviction from certain buildings and for recovery of arrears of rent and compensation for use and occupation. At that time, it was not a suit cognizable by a Court of Small Causes and there is no dispute that the Munsif had jurisdiction to entertain it. While the suit was pending, the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act XIII of 1972) came into force. Subsequently, the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972) came into force from September 20, 1972. This Act amended certain provisions of the Provincial Small Cause Courts Act, 1887, the Bengal, Agra and Assam Civil Courts Act 1857, the Code of Civil Procedure 1908 and the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. By virtue of the amendments, suits by lessors for the eviction of lessees from buildings after determination of the lease became suits cognizable by Courts of Small Causes. The Additional Munsif, Fatehpur, to whose court the suit had been transferred, held, by his order dated September 2, 1974, that, since the suit was valued at Rupees 1,409,32 P., it was cognizable only by the court of the District Judge, Fatehpur, and that it stood transferred to that court. He accordingly directed the file to be sent to the court of the District Judge. The District Judge took the view that the suit was still cognizable by the Munsif, Fatehpur. Accordingly, by an order dated January 4. 1975, he directed the case to be sent back to the court of the Additional Munsif, Fatehpur. Against the order of the District Judge, the defendants have come up in this revision.

3. The effect of the amendments made by Act 37 of 1972 and of the notifications issued under the amended Act are not generally known. It is, therefore, necessary to notice the relevant provisions and the notification in some detail.

4. Section 15 of the Provicial Small Cause Courts Act. 1887, as applicable to Uttar Pradesh, was in these terms--

'15. Coanizance of suits by Courts at Small Causes.

(1) A Court of Small Causes shall not take cognizance of the suits specified inthe Second Schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature, of which the value does not exceed one thousand rupees, shall be cognizable by a Court of Small Causes.

3. Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature, of which the value does not exceed two thousand rupees, shall be cognizable by a court of Small Causes mentioned in the order.'

Article (4) of the Second Schedule, with which alone we are concerned, read thus:--

'(4) A suit for the possession of immovable property or for the recovery of an interest in such property.'

Article (4) of the Second Schedule read with Section 15 provided that suits for eviction from immovable property and for recovery of an interest therein were excepted from the cognizance of Courts of Small Causes. Act 37 of 1972 substituted the following Article (4) of the Second Schedule for the original Article:--

'(4) A suit for the possession of immovable 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 his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation -- For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages and outhouses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.'

On account of this amendment, suits by lessors for the eviction of lessees from buildings became suits cognizable by Courts of Small Causes. Act 37 of 1972 inserted the following proviso in Sub-section (3) of Section 15:--

'Provided that in relation to suits by the lessor for the eviction 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 thelease, 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.'

The result of this proviso was that, with respect to suits of the nature mentioned therein, of which the value did not exceed Rs. 5,000/-, the State Government was empowered to direct that they shall be cognizable by Courts of Small Causes mentioned in the order.

5. Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, empowered the State Government to invest Civil Judges and Munsifs with Small Cause Court jurisdiction. This section, as it applied to Uttar Pradesh, provided:

'25. The State Government may, by notification in the Official Gazette, confer, within such local limits as it thinks fit, upon any Civil Judge or Munsif the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of suits cognizable by such Courts, upto such value not exceeding one thousand rupees in the case of a Civil Judge or five hundred rupees in the case of a Munsif as it thinks fit, and may withdraw any jurisdiction so conferred:

Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this section'.

Section 5 of Act 37 of 1972 amended Section 25 of the Bengal, Agra and Assam Civil Courts Act. The main section was numbered as Sub-section (1) and the proviso thereto was substituted by the following proviso:--

'Provided that, in relation to suits of the nature referred to in the proviso to Sub-section (3) of Section 15 of the said Act, the references in this sub-section to one thousand rupees and five hundred rupees shall be construed respectively as references to five thousand rupees and one thousand rupees.'

The result was that the State Government was now empowered to confer powers upon Civil Judge and Munsifs to entertain suits for eviction from buildings and for rent and compensation for use and occupation upto such value as it thought fit not exceeding five thousand rupees in the case of a Civil Judge and one thousand rupees in the case of a Munsif, Act 37 of 1972 introduced the following Sub-sections (2) and (3) in Section 25:--

'(2) The State Government may, by notification in the Official Gazette, confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value), by the lessor for the eviction of a lessee from a building after the determination of his lease, or for the 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 and may withdraw any jurisdiction so conferred.

Explanation -- For the purposes of this sub-section, the expression 'building' has the same meaning as in Article (4) in the Second Schedule to the said Act.

(3) The State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this section.'

The effect of Sub-section (2) is that the State Government is empowered to confer upon District Judges and Additional District Judges the jurisdiction to entertain Small Cause Court suits of the nature mentioned therein of any valuation. Subsection (3) permits the State Government to delegate to the High Court its power of conferring the jurisdiction of a Judge of a Court of Small Causes upon District Judges Additional District Judges, Civil Judges and Munsifs.

6. A number of notifications were issued under these amended provisions. A notification dated September 22, 1972, was issued by the State Government under Sub-section (3) of Section 15 of the Small Cause Court Act directing that all suits for ejectment from buildings arrears of rent and compensation for use and occupation, of which the value did not exceed Rs. 5,000/- shall be congnizable by the Court of the Judge Small Causes, Bareilly, Moradabad, Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad, Varanasi, Agra, Lucknow and the Court of the Addl. Judge, Small Causes, Lucknow, By another notification of the same date the State Govt. delegated its powers under Section 25 of the Bengal, Agra and Assam Civil Courts Act, as amended to the High Court. Thereafter the High Court issued three notifications. The first Notification No. 525 was issued on October 25, 1972, By this notification jurisdiction of a Judge of a Court of Small Causes for the trial of all suits irrespective of their value, which were for eviction from a building or for recoveryof rent or for compensation for use and occupation, was conferred upon all District Judges and Additional District Judges. The second Notification No. 526 was also issued on the same date. By this notification, the High Court conferred upon all Civil Judges and Munsifs posted in a district, where there was no Court of Small Causes, the jurisdiction of a Judge of Small Causes for trial of suits as follows:--

(i) All suite for eviction from buildings, for rent or for compensation for use and occupation:

(a) Civil Judges -- of any value not exceeding Rs. 5,000/-.

(b) Munsifs -- of any value not exceeding Rs. 1,000/-.

(ii) All other suits cognizable by a Court of Small Causes:

(a) Civil Judges -- of any value not exceeding one thousand rupees.

(b) Munsifs -- of any value not exceeding five hundred rupees.

7. The third Notification No. 156 was issued by the High Court on March 29, 1973. By this notification, powers similar to those conferred by Notification No. 526 were conferred on all Civil Judges and Munsifs who were posted in the Districts of Bareilly, Moradabad, Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad, Varanasi, Agra and Lucknow where small cause courts existed from before The combined effect of these notifications was that suits by lessors for the eviction of lessees from buildings after the determination of the leases or for the recovery from them of rent in respect of the period of occupation thereof during the continuance of the leases or for compensation for the use and occupation thereof after such determination of the leases which, by virtue of the amendments, had become suits of small cause nature, were not to be cognizable by the following courts :--

(i) Suits of the value not exceeding Rs. 1,000/- by Munsifs;

(ii) Suits of the value not exceeding Rs. 5,000/- by Civil Judges; and

(iii) Suits of any value by District Judges and Additional District Judges. After the amendments and the notifications, such suits could be filed only in the abovementioned courts according to the valuation of the suits. These amendments and notifications are prospective. They do not, by themselves, affect suite that were pending on September 20, 1972, when the Amending Act came into force. For pending suits Act 37 of 1972 madespecific provision in Section 9.

Section 9 is in these words:--

'9. 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.'

8. Under Section 9 a pending suit will stand transferred if the following five conditions were satisfied:

1. It was a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, or for the 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;

2. the suit was instituted before 20-9-1972, the date of commencement of Act 37 of 1972;

3. it was instituted in a court other than a Court of Small Causes or a court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes;

4. it was pending in that Court immediately before 20-9-1972, and

5. the recording of oral evidence for any party had not commenced or concluded before 20-9-1972, Where all these five conditions are satisfied, the suit will stand transferred to the court upon which the necessary Small Cause Court pecuniary jurisdiction, has been conferred. All pending suits of the nature mentioned in (1) above shall stand transferred, except

(i) suits in which the recording or oral evidence has commenced or concluded; and

(ii) suits which were instituted in a Court other than a Court of Small Causes or a court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes. Difficulty has arisen about this second class of suits over the meaning of the expression 'in a court other than a Court of Small Causes or a court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes',

9. The District Judge, - Fatehpur, has held that, if the court, in which the suit was instituted, possessed small cause jurisdiction also, then the suit will not stand transferred. He has equated the expression 'exercising jurisdiction' with the expression 'possessing jurisdiction'. He is of opinion that, if a Civil Judge or Munsif, in whose court the suit was instituted had small cause jurisdiction even below the valuation of the suit, the suit will not stand transferred and will be tried by him as an ordinary suit. There is no difficulty so far as suits, which were instituted in the Courts of Small Causes, are concerned. These courts had only small cause jurisdiction and the suits instituted in these courts were only small cause suits. Thus before 20-9-1972, out of the suits of the class with which we are concerned only suits for rent and compensation for use and occupation upto a particular value could have been filed before Courts of Small Causes. These suits will not stand transferred under Section 9 and will continue to be tried by the Courts of Small Causes. Likewise, suits for recovery of rent or compensation for use and occupation upto the value of Rupees 1,000/- filed in courts of Civil Judges and upto the value of Rs. 500/- filed in the courts of Munsifs on the small cause side will not stand transferred and will continue in those courts,

10. But difficulty arises in the case of suits for eviction from buildings and of suits for rent or compensation for use and occupation of the value above Rs. 2,000/- which were formerly not small cause suits. Such suits were filed in the ordinary courts exercising ordinary civil jurisdiction as opposed to small cause jurisdiction. The interpretation of the District Judge results in this anomaly that a suit filed in a court, which had no small cause jurisdiction, will stand transferred but an identical suit filed in a court, which had small cause jurisdiction below the value of the suit, will continue in that very court and will be decided as an ordinary suit. The Legislature couldnot have intended this result. For the purpose of transfer of the suit under Section 9, a court having no small cause jurisdiction and a court having small cause jurisdiction below the value of the suit stand on the same footing.

11. It appears that, if the interpretation of the District Judge is accepted, then Section 9 will have a very limited application. The factual position before 20-9-1972 when Act 37 of 1972 came into force was that, except in districts where Courts of Small Causes existed, all Civil Judges and all full-powered Munsifs had been invested with jurisdiction of a Judge of a court of Small Causes in respect of suits upto the valuation of Rupees 1,000/- and Rs. 500/- respectively. There were only about 105 Munsifs who were not invested with small cause powers. Most of them were Additional Munsifs and were not presiding over courts in which suits were instituted. A vast majority of the suits for eviction from buildings and suits for rent or compensation for use and occupation were pending in courts having some small cause powers. In the interpretation put by the District Judge, this vast majority of suits will not stand transferred but only a very few of such suits, which were instituted in courts not having any small cause powers, will stand transferred. The vast majority of suits would continue to be heard and tried as ordinary suits and not as small cause suits. The intention of the Legislature obviously was that, after the amendments, all such suits, except those in which oral evidence had started or concluded, should be tried as small cause suits by courts competent to do so.

12. In my opinion, the expression 'instituted in a court other than ..... a courtof Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes' means 'instituted on the small cause side of these courts.' The suit must have been entertained by the Civil Judge or Munsif in the exercise of small cause jurisdiction. If the suit was instituted by invoking the ordinary Civil jurisdiction of the court, it could not be said to have been instituted in a court exercising small cause jurisdiction, even if the court possessed some small cause jurisdiction also. The expression 'exercising jurisdiction' cannot be equated with the expression 'possessing jurisdictions' but it really means 'while exercising jurisdiction'. In this view, suits, in which relief for eviction from a building was claimed, and suits for rent or compensation for use and occupation ofvalue above Rs. 1,000/- or Rs. 500/-, as the case may be, which were instituted on the original civil side of courts of Civil Judges and Munsifs, are suits instituted in courts other than courts exercising small cause jurisdiction. These suits will, under Section 9, stand transferred small cause side of courts upon which pecuniary small cause jurisdiction to entertain them has been conferred.

13. Thus the effect of Section 9 is:

1. that suits for rent or compensation for use and occupation instituted in Courts of Small Causes and on the small cause side of courts of Civil Judges and Munsifs shall not stand transferred;

2. that suits for eviction from buildings or for rent or compensation for use and occupation, which were instituted on the original civil side of the courts of Civil Judges and Munsifs, will stand transferred to the courts having pecuniary small cause jurisdiction to try them and will be tried as small cause suits; and

3. that such suits instituted on the original civil side of courts will not stand transferred if oral evidence for any party has commenced or concluded and will be tried in the ordinary civil jurisdiction of the courts in which they were instituted.

14. The suit in the present case was filed in the court of Munsif, Fatehpur, by a lessor against the lessee after the determination of the lease. The reliefs claimed were ejectment from certain buildings, for recovery of rent in respect of those buildings and for recovery of compensation for use and occupation of those buildings. The suit was filed on the original civil side of the court and not on the small cause side. The suit was valued at Rs. 1409.32 P. Admittedly, the recording of oral evidence has not started or concluded for any party. The case clearly falls within the second category of suits mentioned above and stands transferred to the court having pecuniary small cause jurisdiction to try it. Normally the jurisdiction to try suits of the value of Rs. 1409.32 P would be with Civil Judges, upon whom powers to try small cause suits upto the value of Rs. 5000/- has been conferred. It appears that at Fatehpur there is no court of a Civil Judge. Therefore, the suit would be cognizable by the District Judge or by an Additional District Judge. The District Judge, Fatehpur, was not right in returning the suit to the Munsif for trial.

15. The revision is, accordingly, allowed. The order of the District Judge, Fatehpur, dated January 4, 1975, is setaside and the order of the Additional Munsif, Fatehpur, dated September 2, 1974, is restored. In the circumstances of the case, parties will bear their own costs in this Court as well as in the court of the District Judge.


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