Revision under Section 25 of Provincial Small Cause Courts Act challenging eviction decree. Held that trial court erred in deciding title; matter remitted as ownership dispute bars jurisdiction.
Order dated 16.09.2017 set aside; matter remitted to trial court to decide afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 4
Case :- S.C.C. REVISION No. - 262 of 2017
Revisionist :- Vishal Mehrotra And Another Opposite Party :- Smt. Sarika Khanna Counsel for Revisionist :- Lalit Kumar Counsel for Opposite Party :- Kshitij Shailendra
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri P.K. Jain, learned Senior Counsel assisted by Sri Lalit Kumar, learned counsel for the revisionists and Sri Kshitij Shailendra, learned counsel for the opposite party.
This is defendants’ revision under Section 25 of the Provincial Small Cause Courts Act, 1887 against the judgment and order dated 16.09.2017 passed by the Additional District and Sessions Judge/Small Causes Court, Court No.6, Moradabad in S.C.C. Case No.19 of 2016 (Smt. Sarika Khanna Versus Vishal Mehrotra and another).
It is contended by learned counsel for the revisionists that a release application was filed by father of the revisionists late Vijay Kumar for release of the shop in accommodation under Section 21(1)(a) of the U.P. Act No.13 of 1972. The said release application was allowed vide judgment and order dated 04.11.1999.
Against the said order, a Rent Control Appeal No.36 of 1999 was filed by one Subodh Kumar. The appeal was dismissed vide order dated 27.02.2004. Another appeal was preferred against the order of the Prescribed Authority by one Smt. Lata Mehrotra which was also dismissed vide judgment and order dated 27.02.2004.
The tenant Subodh Kumar filed Writ-A No.12725 of 2004 (Subodh Kumar Vs. Vijay Kumar Melhotra and another) before
this Court which was dismissed vide order dated 12.01.2012.
Against the order of the Appellate Authority, Smt. Lata Mehrotra also filed Writ-A No.9400 of 2004 (Smt. Lata Mehrotra Vs. Vijay Kumar Mehrotra) which was also dismissed vide order dated 12.01.2012.
According to the revisionists one Smt. Lata Mehrotra executed power of attorney in favour of one Sri Kaushal Kishor Mehrotra on 26.05.1999 who thereafter executed a registered sale deed in favour of one Smt. Sarika Khanna for the premises in dispute on 21st March 2007.
Thereafter, Sarika Khanna filed S.C.C. Case No.19 of 2016 before the Additional District and Sessions Judge, Small Cause Courts, Moradabad for eviction of the revisionists on the ground that an oral tenancy was executed in favour of the revisionists and there being default of rent, the revisionists were liable to be ejected.
The said S.C.C. Suit was contested by the revisionists and specific ground was taken by him that the disputed property in question belongs to the revisionists and the title cannot be decided by the Judge, Small Cause Courts, Moradabad. Further, the ground was taken that the P.A. Case No.07 of 1997 under Section 21 (1) (a) of U.P. Act No.13 of 1972 has already been concluded and the release application having been allowed, the opposite party had no case. The court below after exchange of pleadings framed the following issues:-
“1- क्यया वविवियावदित सम्पतत्ति ककी भभूस्वियाममी वियावदिनमी हहै यया प्रवतवियादिमीगण हहै ?
2- क्यया वियावदिनमी एविवं प्रवतवियादिमीगण कके मध्य भभूस्वियाममी एविवं वकरयायकेदियारर कया सम्बन्ध हहै ?
सम्पवत अवंतरण अतधवनयम विहैध और प्रभयाविमी हहै और प्रवतवियादिमीगण कको प्रयाप
हको गयके हहै ?
Issue No.1 was in regard to the ownership of the property in dispute. The court below recorded a categorical finding that the shop in question was purchased by Smt. Sarika Khanna, the opposite party and was the owner of the shop in question.
Vide judgment and order dated 16.09.2017, the case was decreed against the revisionists and he was directed to be evicted from the shop in dispute as well as was liable to pay the outstanding rent.
Sri P.K. Jain, learned Senior Counsel submitted that as there was a disputed question of ownership of the shop in question, the court below should not have decided the issue as it was barred under Section 23 of the Act, 1887.
Sri Kshitij Shailendra, learned counsel appearing for opposite party while defending the order of the trial court, however, could not dispute the fact that the court below should have returned the plaint under Section 23 of the Act, 1887 as the question of ownership of the property in question was involved. He also urged that the order dated 27.02.2004 had saved the rights of Smt. Lata Mehrotra, though the appeal was dismissed by the appellate authority.
Having heard rival submissions of the parties and considering the material on record, I find that the court below fell into error of deciding Issue No.1 which was in regard to ownership of the
property as it was not an incidental question which was to be decided, but the objection taken in the written statement by the revisionists was very clear that the property in question belongs to the revisionists and has been settled in legal proceedings up to the stage of this Court.
The proper course for the court below was to return the plaint to be presented before the appropriate Court in view of Section 23 of the Act, 1887.
In view of above, the judgment and order dated 16.09.2017 passed by court below is unsustainable in the eye of law and the same is hereby set aside. The matter is remitted back to the court below to decide the matter afresh keeping in view the provision under Section 23 of the Act 1887.
The revision stands partly allowed.
Order Date :- 14.12.2021
SK Goswami
2 issues framed by the court
Whether the Small Cause Court below could decide the issue of ownership of the disputed property despite objections.
Whether the objection regarding title belongs to the property is an incidental question or bars jurisdiction under Section 23.
2 provisions across 2 enactments
Vishal Mehrotra And Another
Smt. Sarika Khanna
Rohit Ranjan Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
