# Asharam Chaurasia v. Om Prakash Gupta &Ors - **Citation:** (2019) 1 ILRA 1322 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-07-16 - **Case number:** Matters Under Article 227 No.5314 of 2019 - **Bench:** Dr. Yogendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asharam-chaurasia-v-om-prakash-gupta-ors-44402 - **Pages:** 5 ## Headnote A. Provincial Small causes Courts Act, 1887, Section 23- Challenge to - Application - return of Plaint in a Suit involving question of title- there must be prima facie material on record to demonstrate that there was a serious substantial issue of title which may justify the relegation of parties to institute appropriate proceedings before the regular Civil Court having jurisdiction - The suit for arrears of rent and eviction is supposed to be decided on the basis of relationship of Landlord and tenant-between the parties. Hence the Court below has not committed any error in rejecting the application where the relationship is duly established the question of title documents arise and provision of Section 23 for return of plaint would not be attracted. Petition dismissed. (Para 6, 7, 13, 14) Case laws discussed: - 1.Budhumal Versus Mahabir Prasad and others ( 1988) k4 SCC 199 2.Pratap Singh Versus IX ADJ, Fatehpur and others 2000 (3) A.W.c. 1995 3.Shri Kant Trivedi Vesus Vijay Rani Tandaon and another 4.Jugal Kishore Versus The IInd A.D.J., Jalaun at Orai and other 1984 (2) A.R.C. 165 5.Ashok Kumar Gumbar and another Versus Waqf Khudaband Tala Mau suma SCC Revision no. 68/2019 /decided 24-05-2019 6.Shalini Shyam Shetty and another Versus Rajendra Shankar Patil (2010) 8 SCC 329 7.Radhey Shyam and another Versus Chhabi Nath and others (2015) 5 SCC 423 (E-2) ## Text 1322 INDIAN LAW REPORTS ALLAHABAD SERIES 10. No doubt, the amendment now sought is not same as was sought earlier and to that extent the observation made by the revisional court may not be correct, but for the reasons spelt out above, this court reaches to the same conclusion. Accordingly, this Court declines to interfere with the impugned order in exercise of supervisory power under Article 227 of the Constitution. 11. The petition is dismissed. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.07.2019 BEFORE THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J. Matters Under Article 227 No.5314 of 2019 Asharam Chaurasia ...Petitioner Versus Om Prakash Gupta &Ors. ...Respondents Counsel for the Petitioner: Sri Om Prakash Gupta & others Counsel for the Respondents: Sri Prem Chandra, Sri Manish Chandra Tiwari. A. Provincial Small causes Courts Act, 1887, Section 23- Challenge to - Application - return of Plaint in a Suit involving question of title- there must be prima facie material on record to demonstrate that there was a serious substantial issue of title which may justify the relegation of parties to institute appropriate proceedings before the regular Civil Court having jurisdiction - The suit for arrears of rent and eviction is supposed to be decided on the basis of relationship of Landlord and tenant-between the parties. Hence the Court below has not committed any error in rejecting the application where the relationship is duly established the question of title documents arise and provision of Section 23 for return of plaint would not be attracted. Petition dismissed. (Para 6, 7, 13, 14) Case laws discussed: - 1.Budhumal Versus Mahabir Prasad and others ( 1988) k4 SCC 199 2.Pratap Singh Versus IX ADJ, Fatehpur and others 2000 (3) A.W.c. 1995 3.Shri Kant Trivedi Vesus Vijay Rani Tandaon and another 4.Jugal Kishore Versus The IInd A.D.J., Jalaun at Orai and other 1984 (2) A.R.C. 165 5.Ashok Kumar Gumbar and another Versus Waqf Khudaband Tala Mau suma SCC Revision no. 68/2019 /decided 24-05-2019 6.Shalini Shyam Shetty and another Versus Rajendra Shankar Patil (2010) 8 SCC 329 7.Radhey Shyam and another Versus Chhabi Nath and others (2015) 5 SCC 423 (E-2) (Delivered by Hon'ble Dr. Yogendra Kumar Srivastava J.) 1. Heard Sri Manish Chandra Tiwari, learned counsel for the petitioner. 2. The present petition seeks to challenge the order dated 31.01.2018 passed by the Civil Judge (Senior Division) F.T.C. Jaunpur in SCC Suit No. 03/2009 (Om Prakash Vs. Asharam) whereby the application (Application No. 107-Ga) filed by the petitioner under Section 23 of the Provincial Small Causes Courts Act, 1887, (hereinafter referred to as 'the Act') has been rejected. The petitioner also seeks to challenge the 1 All. Asharam Chaurasia Vs. Om Prakash Gupta & Ors. 1323 order dated 18.05.2019 passed in Civil Revision No. 27/2018 in terms of which the revision filed against the aforementioned order has been dismissed. 3. The sole contention raised by the counsel for the petitioner is that questions of title having been raised the Small Causes Court was not entitled to adjudicate upon the issues regarding the same and as such it should have passed an order directing return of the plaint. 4. Records of the case indicate that the aforementioned contention was raised before the trial court also and has been repelled upon taking notice of the fact that the petitioner had duly admitted the plaintiff to be the landlord, and once the landlord-tenant relationship had been accepted the application filed under Section 23 of the Act was liable to be rejected. The trial court has also taken note of the fact that no material evidence had been placed on record by the petitioner-tenant to show that there was any question of title pertaining to the property in dispute. The revisional court has reiterated the aforementioned findings and has held that in the absence of any material evidence having been produced by the petitioner-tenant mere assertion that questions of title were involved would not be sufficient to raise a claim for return of plaint under Section 23 of the Act, and accordingly the revision has also been dismissed. 5. It may be noticed that Section 23 of the Act provides for return of plaint in a suit involving questions of title and in terms thereof 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. 6. It is thus clear that Section 23 confers a discretion on the Small Cause Court to return a plaint when a dispute in respect of title is raised which it finds is of such a nature that it would be more appropriate to be decided by regular civil court. 7. The Court while considering the return of plaint, has to bear in mind that the right of the plaintiff and the relief claimed by him must be of such a nature that the same would depend upon "proof or disproof of a title to immovable property". Thus, for the Court to exercise its discretion to return the plaint, there must be prima facie material on record to demonstrate that there was a serious substantial and complex issue of title which may justify the relegation of the parties to institute appropriate proceedings before the regular civil court having jurisdiction to determine the title. 8. The scope of Section 23 of the Act came up for consideration in the case of Budhu Mal Vs. Mahabir Prasad &Ors.1, and it was held 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, and a question of title could also incidentally be gone into by the Court of Small Cause. The observations made in the aforementioned judgment are as follows :- "10. It is true that Section 23 does not make it obligatory on the court of small causes to invariably return the 1324 INDIAN LAW REPORTS ALLAHABAD SERIES 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...." 9. Reference may also be had in the case of Pratap Singh Vs. IXth Additional District Judge, Fatehpur and Ors.2, wherein it was held as follows :- "6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would. if given by an original Court. ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion. the power of returning the plaint to be presented to the original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge. Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal. 7. Section 23 is framed in optional terms giving discretion to the Court to act in the matter or not. and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises. it would be the wiser course for Small Causes Court in the exercise of its discretion to act under Section 23 and return the plaint." 10. In the case at hand, the tenantlandlord relationship having been admitted the provisions of Section 23 would not be attracted. 11. In this regard reference may be had to the judgment in the case of Shri Kant Trivedi Vs. Vijay Rani Tandon and another3 where this Court upon taking note of the fact that the defendant-tenant had accepted relationship of landlord and tenant between the parties, held that no 1 All. Asharam Chaurasia Vs. Om Prakash Gupta & Ors. 1325 error had been committed by the court below in rejecting the application for return of plaint under Section 23 of the Act. The observations made in the judgment are as under :- "2. In view of above agreement, under which the defendant revisionist accepts the relationship of landlord and tenant between the parties, the court below has not committed any error in rejecting the application under Section 23 of the Act inasmuch as the suit for arrears of rent and eviction is supposed to be decided on the basis of the above relationship and the question of title does not get involved at all." 12. A similar view was taken in the case of Jugal Kishore Vs. The IInd Additional District Judge, Jalaun at Orai and others4, wherein this Court upon considering the fact that the authorities had found that there was a relationship of landlord and tenant between the petitioner and respondent, the refusal by Judge Small Causes Court to return the plaint could not be said to be arbitrary. The observations made in the aforementioned judgment are as follows :- "The second argument of the learned counsel for the petitioner was that since the dispute raised into written statement was relating to the title of the property, the Judge Small Causes under Section 23 of the Provincial Small Cause Court Act should have returned the plaint for presentation to the regular side. All the authorities have found that there was a relationship of landlord and tenant between the petitioner and respondent no. 3. On that basis the suit was decreed. Section 23 is not mandatory in nature and confers discretion on the court before which the suit is filed. On the facts and circumstances of the present case it cannot be said that refusal to return the plaint was arbitrary or was in violation to any provision of law." 13. It may thus be seen that where the Small Cause Court is called upon to consider a prayer for return of plaint under Section 23 of the Act, what is required to be considered is whether the suit has been filed on the basis of relationship of landlord and tenant and as to whether the denial of relationship of landlord and tenant was bonafide or had been set up only to oust the jurisdiction of the Judge Small Cause Court. In a case where relationship between the parties of landlord and tenant had been established refusal by the trial court to return the plaint could not be said to be arbitrary. 14. A suit for eviction filed before the Judge Small Cause Court is to be decided on the basis of the relationship of landlord and tenant, and in a case where the said relationship is duly established the question of title does not at all get involved and the provisions of Section 23 of the Act for return of plaint would not be attracted. 15. The aforementioned legal position has been considered by this Court in a recent judgment in the case of Ashok Kumar Gumbar and another Vs. Waqf Khudaband Tala Mausuma5. 16. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the 1326 INDIAN LAW REPORTS ALLAHABAD SERIES case of Shalini Shyam Shetty andanother Vs. Rajendra Shankar Patil6, and also in the case of Radhey Shyam and another Vs. Chhabi Nath and others7. 17. Counsel for the petitioner has not been able to point out any material error or illegality in the orders passed by the courts below so as to warrant interference in exercise of power under Article 227 of the Constitution of India. 18. Petition lacks merit and is accordingly dismissed. ------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.07.2019 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. Matters Under Article 227 No. 3798 of 2019 Arun Kumar Srivastava &Anr. ...Petitioners Versus Raisul Hasan & Ors. ...Respondents Counsel for the Petitioners: Sri Vikas Singh. A. Motor Vehicle Act-Application-Tribunal has not taken into consideration the guideline of SC regarding release of amount of award. Tribunal must not to insist on investment of the compensation amount is long-term fixed deposit without appreciating the distinction drawn by the Apex Court. In the case of minor, illiterate claimants, widows and literate person in this instant case both petitioners are lightly qualified. They had to pay loans-The Tribunal without considering mere fact, in a mechanical manner, permitted release of only the amount on directed under the main award- release of entire amount in favour of the petitioners- is allowed. (Para 6,7,8) (E-2) (Delivered by Hon'ble Manoj Kumar Gupta J.) 1. The instant petition is directed against the order dated 2.4.2019 passed by Additional District Judge in Civil Misc. Case No. 1/2019 arising out of Motor Accident Claims Petition No. 158/2015. By the impugned order, the Court below (MACT) has accepted the application of the petitioners for release of the amount awarded in their favour in MACP No. 158/2015 in part. 2. The facts necessary for disposal of the instant petition are that a claim petition was filed by the petitioners along with Satyanshu Srivastava for award of compensation on account of death of Beena Srivastava in an accident. Beena Srivastava was wife of petitioner No. 1 and mother of petitioner No. 2. The claim petition was allowed by award dated 25.4.2018 and an amount of Rs. 77,87,032/- along with 7% interest was awarded in favour of the petitioners. Out of the said amount, petitioner No. 1 was held entitled to a sum of Rs. 25,00,000/- while the remaining amount was to be paid to petitioner No. 2. There was a further direction that out of Rs. 25,00,000/- to be paid to petitioner No. 1, Rs. 23,00,000/- would be invested in a long term fixed deposit of five years in a Nationalised Bank, while the remaining sum of Rs. 2,00,000/- only will be paid to him. Likewise, in case of petitioner No. 2, the direction was for investing Rs. 50,00,000/- in a long term fixed deposit in a Nationalised Bank for five years and for payment of balance amount of Rs. 2,87,032/- plus interest to her. The appeal filed by the insurance company was dismissed on 7.9.2018. The amount payable under the award had since been deposited with the tribunal.