Nirmal Jeet Singh
Hoon Vs Irtiza Hussain & Ors.
ORDER
Dr. B.S. CHAUHAN, J.
1. Delay condoned.
2. The application for
permission to appear in person and argue is allowed.
3. Facts and circumstances
giving rise to the case are as follows:(A) Irtiza Hussain, Zaheeda Khatoon
and Murtuza Hussain(hereinafter referred to as `respondents'), were the
original plaintiffs in Small Cause Case No. 41 of 1974 under Section 21 (1)(a)
of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,1972
(hereinafter called the Act 1972). Nirmal Jeet Singh Hoon,(hereinafter referred
to as `petitioner'), was defendant No. 3 in the above-mentioned case which was
Suit for ejectment and arrears of rent filed by the
respondents/plaintiffs. The case of the plaintiffs/respondents was that
defendant no. 1, namely, Shri Ram Prasad (dead-nothing on record to show as to
whether his legal heirs had been substituted) and defendant no. 2, namely, M/s
United Hotels Pvt. Ltd., had illegally sub-let the suit property to the
petitioner; and defendants had also refused to pay the amount due as rent and they
should, therefore, be evicted from the suit property.(B) Smt. Sarvari
Khatoon, Plaintiff no. 4 in Small Cause Case No.41 of 1974 died during the
pendency of the Suit and her right, title and interest in the suit property
vested in her children i.e. the respondents, who were also the co-plaintiffs
before the trial court.(C) The case of all the defendants including the
petitioner was that they did not sub-let the property to the petitioner. All
the defendants also contended that they were entitled to a reduction in rent as
the plaintiffs were illegally in occupation of large parts of the suit property.
The petitioner denied the plaintiffs' claims and in his written statement, he
submitted that no proper notice under Section106 of the Transfer of Property
Act, 1882 (hereinafter referred to as `TP Act'), had been issued to him and so
he could not be evicted. The petitioner also questioned the jurisdiction of the
court to entertain the suit and stated that the respondents had illegally sold
part of the suit property to a third party, so were not entitled to any relief.(D)
In view of the pleadings taken by the parties in the Small Cause Court, the
court framed 29 issues and the parties led evidence on the said issues. The
court after appreciating the evidence decreed the Suit, vide judgment and
decree dated 22.8.2008 against the defendants with cost for ejectment, arrears
of rent, restoration of the items of furniture, crockery and cutlery and the
defendants were further directed to pay pendent lite and future mesne profits
till the date of actual delivery of possession of the suit property. Further,
it was held that petitioner was not a sub-tenant in possession of the property and
defendant nos. 1 and 2 were in exclusive possession of the premises.(E) The
High Court of Uttarakhand at Nainital vide judgment and order dated 23.7.2009
dismissed the Revision Petition filed by the petitioner and upheld the decree
of the Small Cause court. The High Court confined its judgment to the questions
of arrears of rent and sub-letting. The High Court held that the trial court
had jurisdiction to entertain the suit; notice was served on all the parties in
accordance with the provisions of Section 106 of the TP Act. The High Court also
agreed with the findings of the trial court with respect to the questions
relating to the arrears of rent.(F) Aggrieved by the decision of the High
Court, petitioner filed Review Petition No. 633 of 2009. The said Review
Petition was heard in the absence of the petitioner, as he did not appear, and
dismissed vide order dated 2.9.2009 by a speaking and reasoned order.(G) Subsequent
to the retirement of the Chief Justice of the High Court (who had heard the
afore-mentioned Revision Application and the Review Petition), petitioner filed
a Recall Application (M.C.C.No. 711 of 2009), wherein he raised the issue of
the propriety of the-parte dismissal of his Review Petition and made certain
un-substantiated allegations against the former Chief Justice of the High Court.
The issues were dealt with by the High Court and it that the Recall Application
had been drafted in bad taste and did not have any legal basis. The said Recall
Application was dismissed vide order 18.3.2010.(H) Still dissatisfied with
the decision of the High Court, the petitioner preferred Reconsideration
Application No. 262 of 2010.The said Reconsideration Application was also
dismissed as not being maintainable in law vide order dated 23.4.2010.(I) Being
aggrieved, these Special Leave Petitions have been filed with application for condo
nation of delay challenging all the orders passed by the High Court.
4. The
petitioner-in-person has raised only scandalous and unsubstantiated allegations
against the Hon'ble Chief Justice who has decided the Revision Application and
Review Petition and the advocates who had dealt with the case relating to the
suit property at an early stage and have been elevated to the Bench of the High
Court. He kept his case limited to the issue of the transfer of the suit property
prior to the institution of the Suit and his only submission is that such a big
fraud has been committed in this case, that it requires a thorough
investigation against the judge who has decided this case. In spite of several
questions put to him by us, wherein he has been asked asunder what
circumstances he was concerned with the property, he could not point out any
document whatsoever, to show that he had been in lawful possession of the
property, nor could he explain under what circumstances he could get the
possession of the property. His parrot like narration, at all the times had
been that the greatest fraud on the earth has been committed by transferring
this property. We fail to understand how the petitioner could challenge the
transfer, if he has no title in the suit property. It appears from the judgment
of the trial court that at the time of framing the issues, the trial court
refused to frame an issue on the alleged fraud involving the transfer of
property, for the reason that nobody had challenged the ownership of the
plaintiffs and the present petitioner was not in a position to disclose in what
capacity he entered into the property. The court refused to investigate the
allegation that Sarvari Khatoon had executed any Will of the property in favour
of plaintiff No.1. We fail to understand in what capacity the present
petitioner can challenge the said Will. The trial court held as under "Herein
the present case since the relationship of landlord and tenant has been admitted
by the defendants. The plaintiffs are admittedly co-owner of the property in
question, they are entitled to maintain the suit and the question of title can
be looked into incidentally. This court is not required to investigate whether the
sale deeds executed by Smt. Sarvari Khatoon and Smt. Raziaunnisa Begum were
forged and fictitious and were not executed by real Sarvari Khatoon and Smt.
Raziaunnisa Begum. This court is also not to investigate whether Smt. Jahida Khatton
has executed any Will of her share in the property in favour of plaintiff no.
1. The plaintiffs are admittedly being the co-owner of the property, it is
immaterial if the other co-owners have transferred their share in their favour
or not. In any case, the defendants cannot be said to be the aggrieved person
even if it is presumed that the said sale deed or gift deed were executed by imposters.
The real such lady could come and claim the relief and question the said
transfer, but nobody else has a right to question the same. Even otherwise the
adjudication whether the sale deed or gift deed executed by them is without any
right or title, cannot be tried by the court of Small Cause and this can only
be investigated by a competent court or original civil jurisdiction that too
through a suit by aggrieved person e.g. real Sarvari Khatoon, Raziaunnisa or
Jahida Khatoon and none else."
5. The trial court
further held that it had no authority nor there wasa necessity to investigate
the question of the identity of Sarvari Khatoon and that if the petitioner is
aggrieved by any alleged act of fraud by any party, he was free to approach the
competent forum.
6. 6. Section 23 of
the Provincial Small Cause Courts Act, 1887(hereinafter called as Act 1887)
reads: "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 Cause 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) xx xx xx xx xx" Thus, it is evident from
the above that the Small Cause Court cannot adjudicate upon the issue of title
and, therefore, the trial Court has rightly refused to go into that issue and
no fault can be found with the findings by the courts below in this regard.
More so, as it has been an admitted fact that defendant Nos. 1 and 2 had been
the tenants of the original plaintiffs, the question of title could not be
adjudicated at the behest of the petitioner under any circumstance.
7. While dealing with
the provisions of Section 23 of the Act,1887, this Court in Budhu Mal v.
Mahabir Prasad & Ors., AIR1998 SC 1772, held as under: "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 Cause in this behalf could
not be res judicata in a suit based on title. It cannot, however, be gainsaid
that in enacting S. 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." (Emphasis added)8.
8. Procedure adopted in
trial of the case before the Small Cause Court is summary in nature. Clause (35)
of Schedule II to the Act 1887, made the Small Cause Court a court of limited
jurisdiction. Certain suits are such in which the dispute is incapable of being
decided in a summary manner. More so, the Small Cause Court does not possess
exclusive jurisdiction as its jurisdiction is merely preferential. [Vide Ram
Chandra Pandey v. Maheshwari Singh &Ors., AIR 1962 All 480; and Manzurul
Haq & Anr. v. Hakim Mohsin Ali, AIR 1970 All 604 (F.B.)]
9. Thus, it is evident
that the 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. This view also stands supported
by the judgments of this Court in Dhulabai etc. v. State of M.P., AIR 1969SC
78; Govt. of Andhra Pradesh v. Thummala Krishna Rao & Anr., AIR 1982 SC
1081; State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794; and State
of Rajasthan v.Harphool Singh (dead) thr. His Lrs., (2000) 5 SCC 652.
10. We are of the
considered opinion that no illegality had been committed by the courts in
refusing to frame an issue on that point and such a matter could not be
investigated in proceedings before the Small Cause Court. Shri Ram Prasad,
original defendant No.1, who had entered into the contract of tenancy, had died
and his legal heirs, if any, had not been impleaded as parties in these
petitions. Thus, it raises a doubt regarding the maintainability of the
petition itself.
11. Paragraph 24 of the
impugned judgment dated 23.7.2009 makes it evident that the dispute was only
regarding the arrears of rent and eviction. The case of the tenants had been
limited to the extent that they had not committed any default in payment of
rent and no arrears had been due. Further, the validity of the notice under
Section 106 of TP Act was challenged and the District Judge, Dehradun, the
Small Cause Court had no jurisdiction to entertain the suit and no other point was
urged though in the revision petition large number of grounds had been taken. It
is settled legal proposition that 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. (Vide State of Maharashtra v. Ramdas
Shrinivas Nayak & Anr., AIR 1982 SC1249; Abdul Aziz v. State of W.B. & Anr.,
(1995) 6 SCC 45;Transmission Corporation of A.P. Ltd. & Ors. v. P. SuryaBhagavan,
AIR 2003 SC 2182; and Mohd. Akram Ansari v. Chief Election Officer & Ors.,
(2008) 2 SCC 95).
12. None of the persons
against whom unsubstantiated, uncalled for and unwarranted allegations have
been made has been impleaded.Thus, such allegations cannot be entertained.
(Vide: Dr. J.N.Banavalikar v. Municipal Corporation of Delhi & Anr., AIR
1996SC 326; State of Bihar & Anr. v. P.P. Sharma, I.A.S. & Anr., AIR1991
SC 1260; I.K. Mishra v. Union of India & Ors., (1997) 6 SCC 228; and All
India State Bank Officers' Federation & Ors. v. Union of India & Ors.,
(1997) 9 SCC 151).
13. 13. More so, this
Court has already dealt with the impugned judgment while deciding the SLP(C)
No. 28029 of 2009 vide order dated 20.11.2009 and the impugned judgment has
been upheld. In the said case, the present petitioner was also a party.
Entertaining this petition would amount to review of the earlier order dated
20.11.2009.The law does not permit two contradictory and inconsistent orders in
the same case in respect of the same subject matter.
14. The petitions
lack merit and are, accordingly, dismissed.
...................................J.
(P. SATHASIVAM)
...................................J.
(Dr. B.S. CHAUHAN)
New
Delhi,
October
26, 2010
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