Vipin Chandra Dixit, J.

1. Heard Shri S. K. Varma, Sr. Advocate assisted by Shri Vinayak Varma and Shri Rajesh Kumar Tiwari, learned counsel for the revisionist and Shri M. D. Singh Shekhar, learned Senior Advocate, assisted by Shri Manish Tandon, learned counsel appearing on behalf of opposite party no. 1. No one is present on behalf of opposite parties no. 2/1 to 2/3.

2. This S.C.C. revision has been filed by defendant no. 2 against the order dated 28.03.2022, passed by Additional District Judge, Court No. 3, Kanpur Nagar, in S.C.C. Suit No. 98 of 2019 (Santosh Kumar Yadav vs. Dr. Balram Singh Yadav & another) by which the application filed by defendant-revisionist under Section 23 of the Provincial Small Cause Courts Act, 1887 (Paper No. 185-Ga) was rejected.

3. Brief facts of the case are that the plaintiff-respondent no. 1 had filed a suit for recovery of arrears of rent of Rs. 87,360/-, water and sewerage taxes of Rs. 15,552/-, damages @ Rs. 25,000/- per month as well as for eviction of the defendants.

4. It is pleaded by the plaintiff that the plaintiff-respondent no. 1 is owner/landlord of a part of premises no. 134 (old) / 353-A (new), Shafipur IInd, Kanpur Nagar. The plaintiff purchased the property including the disputed shops from its previous owners Smt. Jaya Milwani and Smt. Sweta Milwani by a registered sale deed dated 08.01.2019. The previous owners had also authorized the plaintiff/respondent no. 1 to realize the arrears of rent of shops if there was any, prior to the date of execution of sale deed. It is pleaded that the defendant no. 1 was the original tenant and he sublet the disputed accommodation to the defendant no. 2, who is revisionist in the present case. It is further pleaded that there was default in payment of rent and in spite of notices issued to the defendants, the rent was not paid. S.C.C. Suit was filed for eviction of defendants from the accommodation in dispute as well as decree for recovery of arrears of rent. During the pendency of suit, the original tenant / defendant no. 1 died. The revisionist, who is defendant no. 2 in the suit has put in appearance before the court below and filed her written statement denying the plaint allegation and it was pleaded that the answering defendant no. 2 is exclusive owner of disputed shops and she purchased the shops through a registered sale deed dated 10.04.2017 from Sri Ram Shankar. It is further pleaded that plaintiff prior to filing the present suit had also filed a suit for permanent injunction bearing Case No. 619 of 2019 in the court of Civil Judge (Senior Division), Kanpur Nagar.

5. During the pendency of suit, the revisionist had moved an application dated 25.08.2021 under Section 23 of Provincial Small Cause Courts Act, 1887 (herein after referred to as “Act, 1887”) on the ground that since there is title dispute between the parties and Civil Suit No. 619 of 2019 is pending before the Civil Court, the present suit before the Judge, Small Cause Court is not maintainable and is liable to be returned to the plaintiff for presentation before the competent civil court for proper adjudication of title of the parties.

6. The plaintiff-respondent no. 1 had filed objection against the application filed under Section 23 of the Act, 1887. It is stated that the application for withdrawal of Suit No. 619 of 2019 had already been filed by the plaintiff-respondent no. 1. It is further stated that the present suit had been filed for eviction and recovery of arrears of rent and the court of Judge, Small Cause Court has got jurisdiction to decide the issues involved between the parties and the court has got jurisdiction to consider the question of title as an incidental question while deciding the issues regarding relationship by landlord-tenant in respect of disputed shops and the present suit filed by plaintiff is maintainable.

7. The learned court below after considering the averments of application filed under Section 23 of the Act, 1887 as well as objections raised by plaintiff-respondent no. 1 had rejected the application filed by revisionist-defendant no. 2, vide order dated 28.03.2022, which is impugned in the present S.C.C. Revision.

8. It is submitted by learned Senior Advocate appearing on behalf of revisionist that the court below has erred in rejecting the application filed by revisionist under Section 23 of the Act, 1887, as there was dispute regarding ownership and the J.S.C.C. Court has got no jurisdiction to decide the issue of title. It is further submitted that the revisionist while filing her written statement has specifically denied the landlord-tenant relationship and it was pleaded that the revisionist is the owner of the accommodation in dispute and since there are serious dispute regarding ownership of the property in dispute and the issue of title was involved in the suit, the court of Judge, Small Cause Court has got no jurisdiction to decide the suit and the plaint was ought to be returned to the plaintiff for presentation before the court of competent jurisdiction.

9. On the other hand, learned Senior Advocate appearing on behalf of opposite party no. 1 has submitted that the learned court below has rightly passed the order impugned as the provisions of Section 23 of the Act, 1887 are discretionary and do not make it obligatory on Small Cause Court to return the plaint once question of title was raised by tenant in her written statement and the J.S.C.C. has got jurisdiction in case of eviction suit, to consider the question of title incidental. It is further submitted that only the landlord-tenant relationship ought to have been considered by the Judge, Small Cause Court and it is discretion of J.S.C.C. court to return or not to return the plaint and it is not obligatory on the court to return the plaint after question of title was raised by the tenant. It is further submitted that the Judge, Small Cause Court have every right to consider the question of title incidental and final determination of title was left to be decided by competent civil court in appropriate proceeding. Lastly, it is submitted that so far as Original Suit No. 619 of 2019 is concerned, the plaintiff had filed an application under Order 23 Rule 1 C.P.C. to withdraw the suit and the application was allowed by Civil Judge (Senior Division), Kanpur Nagar, vide order dated 06.05.2022 and the Suit No. 619 of 2019 was dismissed as withdrawn.

10. Considered the rival submissions of learned Senior Advocate appearing on behalf of respective parties and perused the record.

11. Section 23 of the Act, 1887 provides return of plaint in suits involve the question of title. Section 23 of the Act, 1887 is reproduced herein below :-

"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 (14 of 1882), 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 (15 of 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. From a bare perusal of Section 23 of the Act, 1887 reveals that where the issue of title of immovable property was involved, the court may at any stage of the proceeding return the plaint to be presented before the court having jurisdiction to decide the title.

13. This Court in the case of Mohd. Saeed Alias Kallo Keelwale vs. Smt. Saima Begum And 5 Ors. reported in 2016 (2) ARC 400 has laid down the law that the power conferred under Section 23 of the Act, 1887 is discretionary and it is not obligatory on the court to return the plaint when a question of title is raised by tenant and the Judge, Small Cause Court can consider the issue of title incidental while deciding the question of landlord-tenant relationship. The relevant paragraph no. 6 is reproduced herein below :-

"6. It is well settled that while considering a plea to return the plaint to a Court of competent jurisdiction, in exercise of power under Section 23 of the Provincial Small Causes Court Act, the JSCC Court is vested with a discretion to return or not to return the same and it is not obligatory on the Court to return the plaint once a question of title is raised by the tenant because such questions of title can be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. In Shamim Akhtar Vs. Iqbal Ahmad and another, reported in (2000) 8 SCC 123, [LQ/SC/2000/1507] the Apex Court took the view that the power vested, under Section 23(1) of the Provincial Small Causes Court Act, in the Court is discretionary. It was observed that the question of title of the plaintiff to the suit house 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. Following the said decision in the case of Ram Sewak v. Pramod Kumar, 2011 (84) ALR 634 [LQ/AllHC/2010/3582] , this Court approved examination by the JSCC Court of a question relating to valid execution of Will by the erstwhile landlord in favour of the plaintiff by holding that such questions could be incidentally gone into while deciding the question of landlord-tenant relationship between the plaintiff and defendant. It is only when complicated questions relating to title are involved then the court is under an obligation to return the plaint."

14. This Court further in the case of Abid Khan vs. Smt. Maya Devi reported in 2017 (5) AWC 4993 [LQ/AllHC/2017/2181] has observed that the provisions of Section 23 of the Act, 1887 are discretionary provision and while deciding the suit of eviction, question of title would be considered by Small Cause Court as incidental question and final determination of title would be left to be decided by competent civil court in appropriate proceeding and mere denial of landlord-tenant relationship by a tenant would not have ousted eviction proceeding before Small cause Court. The relevant paragraph no. 12 is reproduced as under :-

"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 Honb'el Supreme Court in the case of Buddhu Mal (supra) and the case of Rameshwar Dayal vs. 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 vs Iqbal Ahmad, (2000) 8 SCC 123, [LQ/SC/2000/1507] (para12), Hon'ble 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 vs Irtiza Hussain, 2010 (14) SCC 564 [LQ/SC/2010/1167] (Paras-14 to 20), Hon'ble Supreme Court referred decisions of this Court in the case of Ram Chandra Pandey vs. Maheshwari Singh, AIR 1962 All 480 [LQ/AllHC/1961/281] and Manzurul Haq & Anr. v. Hakim Mohsin Ali, AIR 1970 All 604 [LQ/AllHC/1970/194 ;] ">1970 All 604 [LQ/AllHC/1970/194 ;] [LQ/AllHC/1970/194 ;] (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 45, [LQ/SC/1995/850] 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] Hon'ble 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 vs Gopi Krishan Agrawal, (2013) 9 SCC 438 (paras-16 & 18), Hon'ble 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."

15. The learned court below while passing the order impugned has recorded the finding that the suit filed by plaintiff was for eviction, recovery of arrears of rent as well as for the recovery of water and the sewerage taxes and no relief was claimed regarding title or ownership of disputed property. Since, no relief claimed by the plaintiff in respect of ownership or title of disputed shops, the provisions of Section 23 of the Act, 1887 would not be attracted and the application filed by revisionist/defendant no. 2 under Section 23 of the Act, 1887 was not maintainable and was rightly rejected by learned court below.

16. The findings recorded by learned court below in respect of maintainability of application under Section 23 of the Act, 1887 is based on materials and evidences which are available on record and there is no illegality in the order impugned. No ground for interference is made out. The present S.C.C. Revision is devoid of merit and is liable to be dismissed.

17. Accordingly, the present S.C.C. Revision is dismissed.

18. Interim order, if any, stands vacated.