# Defendant v. Baijnath Prasad Gupta and others

- **Citation:** (2009) 3 ILRA 920
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-13
- **Case number:** Civil Misc. Writ Petition No.49192 of 2009
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-baijnath-prasad-gupta-and-others-41566
- **Pages:** 6

## Headnote

Judge Small Cause Court Act-Section 23Return of Plaint-Suit for ejectment on
ground of arrears of rent-tenant not
deposited any amount on first date of
hearing-denied the title of land lord
itself-on basis of will which was never
acted
upon-held-finding
regarding
default
in
rent-recorded
by
Courts
below-need no interference ejectment.

Held: Para 20

In view of the aforesaid fact, in my
opinion, the findings recorded by the
Courts below are finding of fact, no
interference is required by this Court
while exercising the power under Article
226 of the Constitution of India. The writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.
Case law discussed:
1988, A.W.C 1057, 1998 (3) A.W.C 1616,
2003, AWC 1195, 1991 ALJ 1065, 2000 (42)
ALR 171.

## Text

920 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
that
accused
person
before
it
is
represented or not and whether he
requires the services of a lawyer from
State through Legal Aid Scheme on
account of his indigent conditions or
otherwise and should take up the matter
as prefatory to further proceeding in the
trial. We have scanned the entire record
and there is nothing on record that the
trial court ever addressed itself to this
issue and after all the witnesses were
examined in the case, he passed the orders
appointing the lawyer that too pursuant to
a request from the accused Harveer and
played down the right of the accused by
stating that all the witnesses were
examined in the presence of the accused.
In our considered view, the trial court
proceeded perfunctorily unmindful of the
fact that the right of the accused was
further impinged upon seriously when the
trial court rejected the request of the
lawyer assigned to accused at a belated
stage for recall of certain ocular witnesses
for cross examination.

16. In view of the above, the
conviction and sentences recorded against
the appellant are set aside and the matter
is remanded to the trial court for trial de
novo. It needs hardly be said that the
witnesses
would
be
recalled
and
examined and cross examined formally in
the spirit of procedural justice. The trial
court, it is expected, would proceed
expeditiously and take the matter to
finality within a period not exceeding six
months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2009

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.49192 of 2009

Vijay Chand

...Defendant
Versus
Baijnath Prasad Gupta and others

...Plaintiffs

Counsel for the Petition:
Sri Syed Wajid Ali

Counsel for the Respondents:
Sri B.K. Tripathi
Sri Salil Kumar Rai

Judge Small Cause Court Act-Section 23Return of Plaint-Suit for ejectment on
ground of arrears of rent-tenant not
deposited any amount on first date of
hearing-denied the title of land lord
itself-on basis of will which was never
acted
upon-held-finding
regarding
default
in
rent-recorded
by
Courts
below-need no interference ejectment.

Held: Para 20

In view of the aforesaid fact, in my
opinion, the findings recorded by the
Courts below are finding of fact, no
interference is required by this Court
while exercising the power under Article
226 of the Constitution of India. The writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.
Case law discussed:
1988, A.W.C 1057, 1998 (3) A.W.C 1616,
2003, AWC 1195, 1991 ALJ 1065, 2000 (42)
ALR 171.

(Delivered by Hon'ble Shishir Kumar, J.)

1. Heard Syed Wajid Ali, learned
counsel for the petitioner and Sri Salil
3 All] Vijay Chand V. Baijnath Prasad Gupta and others
921
Kumar Rai, holding brief of Sri B.K.
Tripathi, learned counsel appearing for
the respondent.

2. The present writ petition has been
filed for quashing the orders dated 28.5.09
passed by Additional District & Sessions
Judge, Court No.3, Gorakhpur in S.C.C
Revision No.1 of 2008, Annexure No.4
and order dated 18.12.2007 passed by
Judge, Small Causes Court, Gorakhpur in
S.C.C Suit No.29 of 2005, filed as
Annexure No.3 to the writ petition.

3. The facts emerged in the writ
petition are, that the respondents filed a
suit before the Judge, Small Causes Court,
as suit No.29 of 2005 against the
petitioner for ejectment and arrears of rent
amounting to Rs.3000/-. The petitioner
filed a written statement denying the
ownership of the respondents on the
ground that the property belongs to one
Ram Das Gupta and after his death, his
wife became landlady of the premises in
question and during her lifetime, Smt.
Sudhan Devi and her son Srinath used to
take the rent from the petitioner. A Will
was executed on 21.2.1993 in her favour
by husband, Sri Ram Das Gupta and
subsequently, Smt. Sudhan Devi has also
executed a Will dated 12.10.1996 in
favour of her son, Srinath regarding the
house in dispute. The rent was being paid
to him. Subsequently, when he refused to
take his rent, it was being deposited in the
Court under Section 30 of the U.P. Urban
Building ( Regulation of Letting Rent &
Eviction) Act, 1972 ( hereinafter referred
to as Act No.13 of 1972).

4.

The
trial
court
without
considering this issue, was pleased to
decree a suit vide its judgment and order
dated 18.12.2007. The revision filed by
the petitioner has also been dismissed
vide its order dated 28.5.2009.

5. Sri Wajid Ali, learned counsel
appearing for petitioner submitted that as
the specific plea was raised before the
Courts below that the respondents are not
the landlords and title has been denied.
Therefore, in view of the provision of
Section 23 of the Judge, Small Causes
Court Act, the suit ought to have been
transferred by the Courts below to the
Court of having its competent jurisdiction.

6. In view of the Will Deed executed
by the mother of the respondent, the
respondent was not a landlord, therefore,
he has no right to institute the same. The
reliance placed upon the judgment of the
Apex Court reported in 1988, A.W.C
1057, Budhu Mal vs. Mahabir Prasad
and others, and placed reliance in
paragraph No.10 of the said judgment
which is reproduced below;

"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 the 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 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 return for
presentation to a court having jurisdiction
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
to determine the title. In case, the plea set
up by a appellants that by the deed dated
8th December, 1966 the benefit arising
out of immovable property which itself
constituted
immovable
property
was
transferred and in pursuance of the
information conveyed in this behalf by
Mahabir Prasad to them the appellants
started paying rent to Smt. Sulochna Devi
and that the said deed could not be
unilaterally cancelled, is accepted, it is
likely not only to affect the title of
Mahabir Prasad to realise rent from the
appellants but will also have the effect of
snapping even the relationship of landlord
and tenant, between Mahabir Prasad and
the appellants which could not be revived
by the subsequent unilateral cancellation
by Mahabir Prasad of the said deed dated
8th December, 1966. In that event it may
not be possible to treat the suits filed by
Mahabir Prasad against the appellants to
be suits between landlord and tenant
simplicitor based on contract of tenancy
in which an issue of title was incidentally
raised. If the suits cannot be construed to
be one between landlord and tenant they
would not be cognizable by a court of
small causes and it is for these reasons
that we are of the opinion that these are
appropriate court so that none of the
parties was prejudiced."

7. Further reliance has been placed
upon a judgment by this Court reported in
1998 (3) A.W.C 1616, Banke Bihari Vs.
Surya Narain alias Munnoo, placed
reliance in paragraph No.13 of the said
judgment, which is being reproduced
below;

"I was then urged that even assuming
that registration of the document was
required, it can still be admissible in
evidence for a collateral purpose. I do not
find any force in this submission either. It
has been held in the case of Ratan Lal vs.
Hari Shankar, AIR 1980 All 180, that
collateral purpose referred to under
Section 49 of the Registration Act has a
limited scope and meaning. The term
would not permit the party to establish
that the deed created or declared or
assigned or limited or extinguished a right
to immovable property. Therefore, a
family
arrangement
needed
to
be
registered and an unregistered one could
not be used even to prove that there was a
partition and oral evidence regarding
partition on the basis of such document
could not be led as it was barred by
Section 91 of the Evidence Act. Learned
counsel for the appellant has, however,
placed reliance upon the observations
made by the Supreme Court in the case of
Kale (supra), wherein it was observed that
even if the family arrangement was not
registered it could be used for collateral
purpose, namely, for the purpose of
showing the nature and character of
possession of the parties in pursuance of
the family settlement. So far as the
observation is concerned, it was made in
the facts of the said case where the
antecedent family arrangement which had
been orally arrived at between the parties
had been acted upon for several years.
The petition was filed before the Assistant
Commissioner that the dispute between
the parties has been settled amicably
between the members of the family and it
no longer required determination and,
therefore,
mutation
be
affected
in
accordance with that since the petition
itself did not create or declare any rights
in the immovable property, it was not hit
by Section 17(1)(b) of the Registration
Act
and
was
not
compulsorily
registerable. It is in that background that
observations were made in the said case.
3 All] Vijay Chand V. Baijnath Prasad Gupta and others
923
As this Court has already held that by the
document of family arrangement some
right in immovable property has been
created
and
some
right
has
been
extinguished,
the
term
'collateral
purposes' would not permit the party to
establish any of these facts from the deed.
There is, therefore, no substance in this
submission of the learned counsel as
well."

8. Further reliance has been placed
upon a judgment of the Court reported in
2003, AWC 1195, Pratap Singh vs. IX
Additional District Judge, Fatehpur
and others.

9. Placed upon these judgments, the
learned counsel for the petitioner submits
that in view of the plea taken by the
petitioner that Will was executed by the
mother in favour of her two sons and the
respondent
was
excluded
from
the
property in question, therefore, he cannot
became the landlord and owner of the
property. Therefore, once the title of
respondent landlord was denied, the
Courts below was obliged to return the
plaint to the competent court. The
document submitted by the petitioner was
to be considered because once the Will
has been executed and that has to be taken
into consideration for collateral purposes.

10. Further from the allegation made
in the plaint, there is no averments that in
partition between the parties was acted
upon, therefore, the finding recorded by
the Courts below is based on evidence
and is erroneous.

11.

I
have
considered
the
submissions made on behalf of parties and
perused the record.

12. In paragraph No.9 of the
application filed before the Judge, Small
Causes Court for arrears of rent and
ejectment, it has clearly been stated that
there was a partition between the parties
and they are in possession of their
respective shares. The property in dispute
has come in the possession of the
respondent landlord, therefore, being a
landlord, he has filed a suit. This fact has
been
intimated
by
a
notice
dated
18.9.2000. The Judge, Small Causes
Court as well as the Revisional Court has
recorded a finding on issue No.7 that the
house in dispute after the partition, has
come in the share of the respondents and
as such, there is a relationship of landlord
and tenant. Further, finding has been
recorded that the execution of the Will
has not been proved. If such document
has not been acted upon, then the question
for consideration is whether the Courts
below
was
obliged
to
take
into
consideration the said document. As
regards, the document of the family
partition has been placed before the
Court.

13. The Revisional Court has also
after considering the submission and the
documents filed in support of the
petitioner, has recorded a finding that
there is a relationship of landlord and
tenant, and therefore, there is no occasion
to transfer the suit under Section 23 of the
Judge Small Causes Court Act.

14. Further in the Buddhu Mal
(supra), the Apex Court while considering
the issue and question regarding transfer
of the plaint to the competent court under
Section 23 of the Act, in case, there is a
denial by the tenant that a person who had
filed suit for ejectment and arrears of rent,
is not landlord. It does not make
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
obligatory on the part of the Court to
invariably return the plaint. Once a
question of title is raised by the tenant, the
Court has to see that whether there is a
relationship of landlord tenant are not and
whether the Judge, Small Causes Court is
having jurisdiction to decide the same.
The power under Section 23 of the Act
has to be exercised not in a casual
manner. It has to be executed judicially
after coming to confirm opinion that suit
is not triable by the Court. In 2006 (62)
ALR 583, this Court has held that return
of plaint, power of Court of Judge, Small
Causes Court, not to be exercised in a
mechanical manner. Court is not bound to
return the plaint merely because the tenant
has raised a dispute with regard to title
under Section 23 of the Judge, Small
Causes Court Act. It is a discretionary
power to be exercised by the Court. In
1991 ALJ 1065, Budhu Mal vs.
Ramphal, Apex Court has held that
return of plaint is not obligatory on the
Court if it involves question of title,
however, in some cases discretion to
return of plaint ought to be exercised to
do complete justice between the parties.

15. Section 23 of the Judge, Small
Causes Court Act gives the power " to
return the plaint" for being presented
before the Court having jurisdiction to
determine the title in the event if it is
specified that when the right of the
plaintiff and the relief claimed by him
depending upon the proof or disproof of a
title to immovable property or other title
which such a Court cannot finally
determine.

16. The powers so vested under
Section 23 of 1887 Act is not to be
exercised in a mechanical manner and the
Judge, Small Causes Court is not bound to
return the plaint merely because the tenant
has raised the dispute with regard to the
title. The word used is title depending
upon proof or disproof with regard to the
immovable property. The Judge, Small
Causes Court can very well examine, as to
whether, there is a real dispute with
regard to the title which it cannot decide
either incidentally or prima facie and only
then it may return the plaint while
exercising the powers under Section 23 of
1887 Act.

17. In Shamim Akhtar vs. Iqbal
Ahmad and another, 2000 (42) ALR
171, the Court has held that Section 23(1)
provides that when the right of a plaintiff
and the relief claimed by him in the Court
of Small Causes depends 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. Power
so vested is discretionary, it has to be
exercised only when the relief claimed by
the plaintiff in a proceeding before the
Court depends upon the proof or disproof.

18. In the present case, the petitioner
has challenged the alleged Will which
was alleged to be executed by the mother
of the respondent without any proof to
this effect whether it was acted upon or
not.

19. In the opinion of the Court,
petitioner being a tenant, cannot deny the
title of the landlord only on the basis of an
alleged Will that too executed by the
mother of the respondent, though it has
been denied that Will was never acted
upon by the respondents. As regard, the
finding recorded that admittedly, the
3 All] Dinanath V. State of U.P. and others
925
petitioner has not paid the rent on the first
date of hearing and he was in arrears and
has not deposited the same on the
immediately within a period of one month
from the date of notice. In such
circumstances, the Court below has
passed an order holding that the petitioner
was defaulter and as such, is liable for
ejectment.

20. In view of the aforesaid fact, in
my opinion, the findings recorded by the
Courts below are finding of fact, no
interference is required by this Court
while exercising the power under Article
226 of the Constitution of India. The writ
petition is devoid of merit and is hereby
dismissed. No order as to cost.

21. In the last, Sri Wajid Ali, learned
counsel appearing for the petitioner
submitted that some reasonable time be
granted to the petitioner to vacate the
premises. Petitioner is granted three
months' time to vacate the said shop
subject to condition that he will file an
affidavit before the Judge, Small Causes
Court in the shape of undertaking within a
period of two weeks from today that he
will vacate the premises in dispute within
a period of three months from today and
will not induct any third person and hand
over peaceful possession immediately on
or before the three months. If, such an
undertaking is given, the Judge, Small
Causes Court will grant three months'
time to vacate the said premises. It is also
made clear that arrears, if any, payable
month to month shall also payable to the
landlord.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 57721 of 2007

Dinanath

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Dev Brat Mukherjee

Counsel for the Respondents:
Sri Jeevan Prakash Sharma
S.C.

U.P. Intermediate Education Act 1921Regulation 2, Chapter III-Promotion-4
posts of clerk including Head Clerk duly
sanctioned
50%-Head
Clerk
being
promotional post amongst clerks-can not
be
treated
similar
to
clerk-heldsubmission wholly misconceived-out of
four posts-two already occupied from
promotion
quota-decision
of
management to fill up the vacancy by
direct recruitment-proper but the same
can not be under O.B.C. quota-petition
partly allowed.

Held: Para 10 & 12

One
person
having
already
been
promoted from the post of Clerk to Head
Clerk and another promoted from ClassIV to Class-III, two persons are already
working against the promotion quota out
of the total strength of four. Therefore,
remaining two posts are to be filled in by
direct recruitment. Therefore, I do not
find any error or illegality in the decision
of respondent no. 4 to fill in the vacancy
in question by direct recruitment.

In view of above exposition of law,
unless there being four posts of Class III
available
for
direct
recruitment,