J.N. Takru, J.
1. This is a plaintiffs appeal against the judgment and order of the learned 1st Additional Civil Judge, Agra, dated the 29th of October 1959, setting aside the judgment and decree of the trial Court and remanding the case to that Court for a fresh trial in the light of the observations made in his judgment.
2. The facts giving rise to this appeal, stated briefly, are as follows:
3. The appellant instituted a suit against the respondents, in the Court of Judge Small Cause, for the recovery of Rs. 680/- as arrears of rent from them on the allegations that they were his tenants, in respect of a portion of the premises described in the plaint, on a monthly rental of Rs. 15/-, the tenancy starting from Badi 8 of each Hindi calendar month and terminating on Badi 7 of the following month. The respondents paid rent upto Katik Badi 7 Sambat 2007 but the rent for the subsequent period was not paid despite several demands. Hence the suit for recovery of Rs. 675/- as rent from Kartik Badi 8, Sambat 2008 to Asarh Badi 7 Sambat 2011 (i.e. 19-3-1952 to 23-6-1954) and Rs. 5/- as costs of the notice.
4. The respondents contested the suit. Respondents 1 and 3 filed one written statement and respondents 2 and 4 filed another. According to the former there was no relationship of landlord and tenant between the parties and the appellant was owner of only a moiety share in the house in dispute. About 30 years back the said respondents were brought to the said house, and out of love and affection, were allowed to stay there free of costs and charges. They never paid any rent nor was any rent recoverable from them. Finally, they pleaded that the sun was bad for non-joinder of necessary parties.
5. The case of respondents Nos. 2 and 4 was that they were in possession of the second storey of the house in suit for more than 25 years and had never paid any rent for it; that the relationship of landlord and tenants did not exist between the parties; that the appellant was not the sole owner of the house in question and that the suit was barred by time.
6. As stated before, the suit was originally filed In the Court of the Judge Small Cause. During its pendency there, the parties made a prayer to that Court that the plaint be returned for presentation to the proper Court, and on the same being allowed, the plaint was filed in the Court of the Munsif. The respondents filed their written statements there in which one of the pleas taken by them was that the suit as such was cognisable by the Court of Judge Small Cause.
7. On the pleadings of the parties, the learned Munsif framed the necessary issues. He first tried the issue about jurisdiction and held that he had jurisdiction to try the suit. Thereafter he tried the other issues, and holding in favour of the appellant, so far as respondents 1 and 3 were concerned, he decreed the suit against them, but dismissed it against respondents 2 and 4. Against that decree, two cross-appeals were fifed in the lower appellate Court One of them was by the present appellant and it was against that part of the decree whereby the trial Court dismissed his suit against respondents 2 and 4. The other appeal was filed by respondents 1 and 3 against whom the appellant's suit had been decreed. The lower appellate Court dismissed the appeal of the appellant and allowed that of respondents 1 and 3 and remanded the case to the trial Court with directions, inter alia, that it shall dispose of it, after ordering the appellant to amend his plaint by basing his suit on title also, and by impleading Durga Prasad as a defendant Hence this appeal.
8. A number of grounds have been taken in support of this appeal, but the main ground on which it is liable to succeed centres round the correct interpretation of Section 23 of the Provincial Small Cause Courts Act hereinafter called the Act. In order therefore, to appreciate the contention of the learned counsel for the appellant, it will be convenient to set out the relevant portion of this section first. Thus stated the section reads as follows:
'23(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.'
9. According to the learned counsel for the appellant, the instant suit being one for the recovery of rent was exclusively cognizable by the Court of Small Causes under Sections 15 and 16 of that Act; but as the respondents challenged the appellant's title the Court of Small Causes could under the provisions of Section 23, referred to above, return the plaint to be presented to a Court having jurisdiction to determine the question of title. This is precisely what that Court did, when, on the joint application of the parties, it allowed the plaint to be returned for presentation to the proper Court. According to the learned counsel the effect of this order was only to remove the bar of Sections 15 and 16 of the Act and to make the plaint as such entertainable by the Court having jurisdiction to try suits of a civil nature: and not to convert the nature of the suit from one for the recovery of rent to a title suit, as held by the lower appellate Court. After hearing learned counsel for the parties, I am of the opinion that the aforesaid contention has force. I shall, therefore, proceed to give my reasons for coming to that conclusion.
10. The relevant provision bearing upon this question has already been set out, and it is not necessary, therefore, to repeat it. It is admitted on all hands that but for the question of title raised by the respondents, the suit would have been cognizable by the small cause Court. The short question, therefore, which has to be considered in this case is as to the precise effect, which an order under Section 23 of the Act, has on the nature of the suit, that is to say does it have the effect of converting the suit from one of a small cause nature to a title suit or not? The answer to that questions, as I see it, would depend entirely on the meaning which is to be given to the word 'plaint' used in that section: and having regard to the context in which that word is used, I am of the opinion that It can only mean the Plaint as filed in the Court of Small causes. Firstly, because, if the Legislature had intended that word to mean an amended plaint of the kind mentioned by the lower appellate Court in Its judgment, then it would nave used appropriate words to express that intention. Secondly, because, if In all cases in which plaints are returned under Section 23 of the Act the latter were required to be amended so as to raise a question of title also, then the suits which they would give rise to, would be suits on theregular side, with the result that there would be no 'suit of the nature cognizable by Courts of Small Causes,' as envisaged under Section 102 C. P. C.
It follows, therefore, that if Section 102 C.P.C. is not to be regarded as a dead letter, then the only contingency in which it can come into play is when in a suit of a Small Cause Court nature, the plaint is returned under Section 23 of the Act for presentation on the regular side without making any changes therein which would have the effect of changing the very nature of the suit. I am fortified in my view by the decisions in Hara Mohan Sana v. Sudhanshu Bhusan, AIR 1926 Cal 83, Kali Krishna Tagore v. Izzatonnissa Khatun, ILR 24 Cal 557, Mahamaya Dasya v. Nitya Hari Das, ILR 23 Cal 425, Subbaroyadu v. Gangayya, ILR 29 Mad 329 and Allah Bux v. Nurul Hasan, 1931 All LJ 967. In Hara Mohan Saha, AIR 1926 Cal 83 it was held that,
'When a plaint is presented to the Civil Court under an order made under Section 23 of the Provincial Small Cause Courts Act, the case should be tried as framed and the question of title may be gone into only incidentally in order to decide the merits of the case. The suit remains one of the nature triable by Small Cause Court.'
Reliance in this case was placed on an earlier decision of that Court in Kali Krishna Tagore, ILR 24 Cal 557 wherein it was held that,
'when a suit is presented to a Civil Court in pursuance of an order made by Small Cause Court Judge under Section 23 of the Provincial Small Cause Courts Act, the nature of the suit is not altered. It remains a suit of the nature triable by a Small Cause Court and although an appeal is allowed from the judgment passed by the Munsif in such a case, a second appeal is incompetent on the ground that the suit is of a nature triable by a Small Cause Court.'
In Mahamaya Dasya, ILR 23 Cal 425 it was held that
'the object and effect of Section 23 of the Provincial Small Cause Courts Act was obviously to give jurisdiction to the ordinary Civil Courts to hear and decide suits in respect of which the Court of Small Causes has made order under that section.'
In other words, an order under Section 23 of the Act had the effect of removing the bar which otherwise was placed on the jurisdiction of the Civil Courts under Section 16 of the Act. In Subbaroyadu, ILR 29 Mad 329 it was held that,
'where a question of title which a Court of Small Causes cannot finally determine Is Involved in a Small Cause Suit the Court has discretionary power under Section 23 of the Act (IX of 1887) to return the plaint to be presented to a Court having such jurisdiction. The latter Court thereupon acquires jurisdiction to try the suit as original suit and is bound to receive the plaint and try it as such.'
11. Three conclusions emerge from this decision; (1) that the exercise of the power under Section 23 of the Act is discretionary, (2) that when exercised, its effect is to give the Civil Courts jurisdiction to try the suit as original suit and (3) that the Civil Court Is bound to receive the plaint and try It as such.
12. In Allah Baksh, 1931 All U 967 a Division Bench of this Court following the decision In Samir Khan v. Basi Ram : AIR1925All821 held that the transfer of a Small Cause Court suit to the ordinary Civil Court under Section 26 of the Act had the effect of making it a regular suit in which a first appeal lay, but as the nature of the suit continued to be a Small Cause Court one, a second appeal was barred under Section 102, C.P.C. despite the fact thata question of title was considered to have been involved in the case or has been incidentally decided.
13. The weight of judicial authority, therefore, appears to be uniformly in favour of the proposition that as soon as the Small Cause Court Judge exercises his discretion under Section 23 of the Act the bar of Section 16 of that Act is removed and the Civil Court is authorised to entertain the plaint as such and to try the suit as framed. The lower appellate Court was, therefore, in error in requiring the appellant to amend his plaint by basing his suit on title also.
14. The lower appellate Court also directed the appellant to implead Durga Prasad as a defendant. That direction was obviously given on the assumption that the plaint had to be amended as stated above. But as that view has been found to be erroneous there appears to be no need for impleading Durga Prasad as a defendant to the suit.
15. For the reasons stated above, I sustain this appeal and remand the case to the lower appellate Court,with the direction that after re-admitting it under itsoriginal number, it shall dispose of it on merits. Costs here,and hitherto, shall abide the result.