1. Heard Sri Ramendra Asthana, learned counsel for the revisionist-defendant/tenant and Sri Pramod Srivastava, learned counsel for the respondent-plaintiff/landlady.

2. This revision under Section 25 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as the), has been filed praying to set aside the order dated 26.05.2017 in S.C.C. Case No.14 of 2012 passed by the Court of Additional District Judge, Court No.9, Agra whereby Application-118C filed by the revisionist-defendant/tenant under Section 23 of thewas rejected and the objection of the respondent herein being Paper No.120-C was accordingly disposed of.

Submission:-

3. Sri Ramendra Asthana, learned counsel for the revisionist-defendant/ tenant submits that one Sri Ghurelal was the owner-landlord of the disputed property/ house No.11/116A/6 built on the part of khasra plot No.196, village Chak Haphtam, Tehsil Etmadpur, Agra, of which the revisionist herein was the tenant. The respondent herein was neither owner nor landlord of the aforesaid property but she filed S.C.C. Case No.14 of 2012 for eviction and recovery of rent. Since the dispute involved question of title and as such the plaint was liable to be returned under Section 23 of the. However, by the impugned order, the Court below rejected the Application-118C in an arbitrary manner. He, therefore, submits that the Revision deserves to be allowed and the impugned order dated 26.05.2017 deserves to be set aside. In support of his submission, he relied upon a judgment in the case of Buddhu Mal v. Mahabir Prasad and others, 1988 AWC 1057 S.C. (para-10) and the judgment in the case of Kailash Chandra Gupta v. Subhash Chandra Gupta, 2009 (2) ARC 829 (paras-6).

4. Sri Pramod Srivastava, learned counsel for the respondent landlady/ plaintiff supports the impugned order.

Discussion And Findings:

5. I have carefully considered the submissions of learned counsel for the parties and perused the record.

6. Briefly stated facts of the present case are that according to the respondent landlady/ plaintiff, khasra No.196 of village Chak Haphtam, Tehsil Etmadpur, District Agra was jointly owned by one Sri Kalyan Singh and Ghoorelal. By registered sale deed dated 14.07.2006, the aforesaid Sri Kalyan Singh sold to the respondent landlady/ plaintiff the disputed property being part of aforesaid khasra No.196 which was in his share and possession. The aforesaid property was allotted Municipal No.11/116A/6, Zauhra Bag Rambag, Agra. Municipal assessment was made and the name of the respondent landlady/ plaintiff was entered in the records of Nagar Nigam, Agra in which the revisionist-defendant was shown as a tenant. Certified copy of Municipal assessment and tax payment receipts were filed in evidence as Paper No.27-C/10 and No.31-C. According to the respondent-plaintiff/ landlady, she had let out the disputed property to the revisionist-defendant/ tenant in the year 2010 for 11 months on a monthly rent of Rs. 5000/-. The said tenancy was further extended for 11 months by another rent deed dated 15.07.2011. The documents i.e. paper No.10-C, 11-C, 27-C/5 and 27-C/9 and certain other documents were filed in evidence. The Revisionist-defendant/ tenant disputed the aforesaid two rent deeds on the ground that his signature on it, were fraudulently obtained by the landlady taking advantage of his ignorance. The revisionist-defendant/ tenant filed an application under Section 23 of thebeing paper No.118-C to which an objection being paper No.120-C was filed by the respondent-landlady/ plaintiff. The application of the revisionist-defendant/ tenant was rejected by the impugned order dated 26.05.2017 by the Court of Additional District Judge, Court No.9, Agra in which, after detailed discussion of facts; he recorded his conclusions as under:

LANGUAGE

7. The facts as afore-noted and the conclusion reached by the court below, leaves no manner of doubt that the question of title of the disputed property is not involved rather the dispute has been raised by the revisionist-defendant/ tenant on the ground that the rent deeds have been got executed by the respondent landlady/ plaintiff taking advantage of his ignorance. Thus, according to own stand of the revisionist-defendant/ tenant, signature on the rent deeds are not denied. In the impugned order, the court below has observed that if the landlord and tenant relationship between the landlady and the revisionist herein are not established, then she may not succeed in the case. The Court below further observed that no documentary evidence has been filed to deny the title of the respondent-landlady/ plaintiff over the disputed property.

8. Considering the facts of the case as discussed above, I find that Section 23 of thehas no application in the facts and circumstances of the present case. The judgment in the case Buddhu Mal (supra) relied by the revisionist-defendant/ tenant was on the facts that son of one Sri Mahabir Prasad was murdered on 28.09.1966 leaving behind him two minor children and wife. The said Mahabir Prasad executed a registered deed on 08.12.1966 with respect to certain properties including the tenanted premises describing these properties to be belonging to him. By the said deed, he gave benefits of properties to his grand-sons and to his sons wife namely Smt. Sulochna Devi to maintain herself and her born and unborn children, from the rent realized from the property (three shops) and to use the house as her residence but she will neither be entitled to transfer the shops and the house nor she shall mortgage it by borrowing money. It was further provided in the aforesaid registered deed that she will have the right to maintain her and children only from the benefit that may be derived from the properties. It was further mentioned in the deed by Sri Mahabir Prasad that he will neither interfere with her right nor transfer the ownership of property. However subsequently by a deed of cancellation dated 03.11.1970, the aforesaid Mahabir Prasad cancelled the deed dated 08.12.1966. Thereafter, he filed a case for eviction of the tenants from the said property on the ground of default in payment of rent. It is important to note that after the deed dated 08.12.1966, the aforesaid Mahabir Prasad informed the tenants concerned to make payment of rent to Smt. Sulochna Devi in terms of the aforesaid deed and the tenants started paying rent accordingly. Hence, the tenants took the stand in the eviction case that they have already paid rent to Smt. Sulochna Devi. In the eviction case, the Mahabir Prasad also impleaded/ arrayed Smt. Sulochna Devi as a defendant. On these facts, Honble Supreme Court observed in para-4 of the judgment that "title of Mahabir Prasad to realise rent from the appellants was disputed by them". A question was also involved whether Mahabir Prasad would have unilaterally cancelled the deed dated 08.12.1966. Considering these facts, the Honble Supreme Court observed in paragraph-10 of the judgment as under:-

"It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title."

(Emphasis supplied by me)

9. The facts as involved in the case of Budhumal (supra) as briefly noted above, are not involved in the present case. In fact, the conclusion reached in paragraph-10 as afore-quoted, supports the impugned order. Observation in later part of the afore-quoted paragraph was made by Honble Supreme Court to do complete justice between the parties. The facts of the present case shows that the attempt of the revisionist-defendant/ tenant is to somehow not allow the case to be decided on merits.

10. The judgment in the case of Kailash Chandra Gupta (supra) relied by the revisionist-defendant/ tenant is wholly distinguishable on the facts of the present case as evident from paragraph-6 of the judgment, which is reproduced below:-

"I have taken into consideration the aforesaid decision that the Judge, Small Causes Court can decide the question of title incidentally only when the tenant dispenses his ownership or he is landlord but in the instant case, plaint was returned on two counts, one that both the plaintiff and defendant were brothers. The plaintiff claims his title on the basis of Will whereas claim of the respondent is that question of title was not involved incidentally but directly. The validity of Will had to be gone into, therefore, Judge, Small Causes Court rightly returned the plaint."

(Emphasis supplied by me)

Scope of Section 23 of the:-

11. Now I proceed to consider the scope of Section 23 of the Act, which reads as under:

"23. Return of plaints in suits involving questions of title.--(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.

(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."

12. A plain reading of Section 23 of thedoes not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. A question of title could also incidentally be gone into and any finding recorded by a Judge, Small Causes Court, in this behalf could not be res judicata in a suit based on title. Similar view has been taken by the Honbel Supreme Court in the case of Buddhu Mal (supra) and the case of Rameshwar Dayal v. Banda, (1993) 1 SCC 531 [LQ/SC/1993/44] . The power vested under Section 23(1) of thein the Court is discretionary. In the case of Shamim Akhtar v. Iqbal Ahmad, (2000) 8 SCC 123 [LQ/SC/2000/1507] , (para-12), Honble Supreme Court held that the question of title of the plaintiff to the suit property could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. The tenant, by merely denying the relationship of landlord and tenant between himself and the plaintiff; could not avoid the eviction proceeding under the Rent Control Act. In the case of Nirmal Jeet Singh Hoon v. Irtiza Hussain, 2010 (14) SCC 564 [LQ/SC/2010/1167] (Paras-14 to 20), Honble Supreme Court referred decisions of this Court in the case of Ram Chandra Pandey v. Maheshwari Singh, AIR 1962 Allahabad 480 and Manzurul Haq & Anr. v. Hakim Mohsin Ali, AIR 1970 Allahabad 604 (F.B.) and its earlier decisions in the case of Dhulabai etc. v. State of M.P., AIR 1969 SC 78 [LQ/SC/1968/102] ; Govt. of Andhra Pradesh v. Thummala Krishna Rao & Anr., AIR 1982 SC 1081 [LQ/SC/1982/68] ; State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794 [LQ/SC/1985/164] ; and State of Rajasthan v. Harphool Singh (dead) thr. His Lrs., (2000) 5 SCC 652 [LQ/SC/2000/887] and held that procedure adopted in trial of the case before the Small Cause Court is summary in nature. Finding on the issue of title recorded by the Small Cause Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by the competent civil court. In its decisions in the case of State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463 [LQ/SC/1982/110] , Abdul Aziz v. State of W.B., (1995) 6 SCC 47 [LQ/SC/1995/716] , Transmission Corporation of A.P. Ltd. v. P. Surya Bhagavan, AIR (2003) 6 SCC 353 and Mohd. Akram Ansari v. Chief Election Officer, (2008) 2 SCC 95 [LQ/SC/2007/1470] , Honble Supreme Court held that it is settled legal proposition that the court is supposed to respond only to the issue agitated before it and in case at the time of hearing the issue was not taken, the court cannot deal with it. In the case of Ramji Gupta v. Gopi Krishan Agrawal, (2013) 9 SCC 438 (paras-16 & 18), Honble Supreme Court again held that the procedure adopted in the trial of a case before the Small Causes Court is summary in nature. Clause (35) of Schedule II to the Provincial Small Causes Court Act, 1887, has made the Small Causes Court a court of limited jurisdiction. The findings of the Small Causes Court could not operate as res judicata in subsequent civil suit for determination/ enforcement of any right or interest in the property.

13. In the case of Hukum Singh v. Ist A.D.J., Shahjahanpur and others in Writ-A No.12422 of 1998, decided on 05.09.2012, this Court considered the scope of Section 23 of theand held as under:

"25. Coming to other decisions where it has been observed that question of title if incidentally had arisen may be gone into by the Small Causes Court, I find that in Ram Sevak v. Pramod Kumar 2011 (84) ALR 634 [LQ/AllHC/2010/3582] , a suit for arrears of rent and ejectment was filed by one Ram Krishna Agarwal against Ram Sevak which was decreed ex-parte. The restoration application was allowed and the suit was restored. During pendency of suit, Ram Krishna Agarwal, the plaintiff died. Based on a Will of Ram Krishna Agarwal his wife Smt. Gomti Devi was substituted who also died issue-less. Consequently, one Hari Narain, brother of Ram Krishna Agarwal succeeded the property and after his death, Pramod Kumar, the respondent in that writ petition was substituted on the basis of the Will. The petitioner Ram Sevak in his written statement stated that property belongs to a Trust and Ram Krishna Agarwal was merely Sarvarakar of the Trust and not owner of the suit property. He was paid rent regularly in the capacity as Manager of the Trust. Ram Sevak also challenged the Will executed by Ram Krishna Agarwal. The suit was decreed holding that the property in question originally belonged to Ram Krishna Agarwal and ultimately got transferred to Pramod Kumar. Therein tenant did not dispute that he was tenant in the building in question and also to the effect that Ram Krishna Agarwal was collecting rent. He only tried to dispute capacity in which Ram Krishna Agarwal was collecting rent. In these circumstances, this Court referring to Apex Courts decisions in Shamim Akhtar v. Iqbal Ahmad Khan and others, 2001 (42) ALR 131 (SC), and this Courts decision in Bashir Ahmad v. Ist Additional District Judge, Saharanpur and others, 2000 (40) ALR 741 [LQ/AllHC/2000/942] , observed, the question of title could also have gone incidentally. The mere denial by a tenant-respondent about relationship of landlord and tenant would not oust eviction proceeding before the Small Cause Court."

(Emphasis supplied by me)

14. In Smt. Girja Shanker and others v. Krishna Kumar Jaiswal 2011 (85) ALR 116, also a similar observation has been made that mere denial of relationship is not sufficient to oust jurisdiction of Court constituted under Provincial Small Causes Courts Act. This Court relied on the decisions in Ram Ashere Savita v. IInd A.D.J., Kanpur Dehat and others, 2005 (59) ALR 737 [LQ/AllHC/2005/305] and Shrimati Devi (D) through L.Rs. v. IVth A.D.J., Meerut and others, 2004 (57) ALR 562. [LQ/AllHC/2004/1727]

15. In Punet Kumar Agrawal v. Jhunjhunwala Charity Trust 2011 (85) ALR 780, the question was slightly different as to whether a co-trustee can file a suit for arrears of rent and ejectment and, therefore, the same has no application to the facts of this case.

16. In Majati Subbarao v. P.V.K.Krishna Rao, AIR 1989 3 SC 2187, the Apex Court observed that title of landlord, if denied, and ownership is renounced in the written statement in an eviction suit, the Trial Court, in the same suit, can decide that question and if finds that such renouncement or denial of title is not founded on valid and bona fide reasons, it can pass decree of eviction on the ground of Section 20(2)(f) of Act, 1972.

17. Thus, the provision of Section 23 of theis discretionary provision. It does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. A question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a subsequent suit based on title. In the case of a eviction suit under Rent Control Act, question of title could be considered by Small Causes Court as an incidental question and the final determination of title is left to be decided by the Competent Court in appropriate proceedings. The procedure adopted in the Trial Court of the case before the Small Cause Court is summary in nature. Mere denial of landlord-tenant relationship by the defendant-revisionist/ tenant would not oust eviction proceeding before small cause court.

18. Applying the settled legal position as discussed above, on the facts and circumstances of the case, I find that a question of title is not involved in the present set of facts and even if the question of title has been raised by the tenant, it can be incidentally gone into by the court below and any finding recorded in this regard by the Judge, Small Causes Court, shall not be res judicata in a suit based on title.

19. In view of the above discussion, I do not find any infirmity in the impugned order dated 26.05.2017. Revision is wholly misconceived and is, therefore, dismissed with cost of Rs. 5000/- which the revisionist-defendant/ tenant shall pay to the respondent landlady/ plaintiff within one month. The court below is directed to expedite the matter and decide it on merit, in accordance with law, expeditiously, without granting any unnecessary adjournment to the party.