# Harihar Tiwari v. Kshetriya Sri Gandhi Ashram, Moradabad

- **Citation:** Second Appeal No. 94 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Second Appeal No. 94 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harihar-tiwari-v-kshetriya-sri-gandhi-ashram-moradabad-46333
- **Pages:** 5

## Headnote

A. Civil Law-Civil Procedure Code
-
Section 100 - Substantial question of law
Determination - If the question is settled
then it would not be a substantial
question of law - Merely because in the
substantial question of law so framed in
the
memo
of
appeal
involving
interpretation of any particular provision
of the law by itself could not be a
substantial question of law. (Para 22 and
23)
B. Civil Law- U.P. Public Premises (Eviction
of Unauthorized Occupant) Act, 1972 -
Section 2(e)(iv) and 15 - Application of
the Act - Public Premises - Act would
apply only in case, when a society is
registered
under
the
Societies
Registration Act, 1860, the governing
body whereof consists wholly of public
officers
or
nominees
of
the
State
Government
or
both
-
Unless
the
governing body of the society consists of
wholly of public officer or nominees of the
State Government or both, it cannot be
treated as a society referred to in Section
2(e) (iv) of the Act and premises whereof
would
not
be
treated
as
a
'public
premises'. (Para 17)
Appeal dismissed (E-1)
Cases relied on :-

## Text

1384 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)03-05ILR A1384
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 94 of 2020
connected with
Second Appeal No. 92 of 2020

Harihar Tiwari ...Appellant
Versus
Kshetriya Sri Gandhi Ashram, Moradabad
 ...Respondent

Counsel for the Appellant:
Sri Ambrish Chandra Pandey, Sri Sandeep
Kumar Tiwari

Counsel for the Respondent:
Sri Digvijay Singh, Sri Sudhir Kumar Singh

A. Civil Law-Civil Procedure Code
-
Section 100 - Substantial question of law
Determination - If the question is settled
then it would not be a substantial
question of law - Merely because in the
substantial question of law so framed in
the
memo
of
appeal
involving
interpretation of any particular provision
of the law by itself could not be a
substantial question of law. (Para 22 and
23)
B. Civil Law- U.P. Public Premises (Eviction
of Unauthorized Occupant) Act, 1972 -
Section 2(e)(iv) and 15 - Application of
the Act - Public Premises - Act would
apply only in case, when a society is
registered
under
the
Societies
Registration Act, 1860, the governing
body whereof consists wholly of public
officers
or
nominees
of
the
State
Government
or
both
-
Unless
the
governing body of the society consists of
wholly of public officer or nominees of the
State Government or both, it cannot be
treated as a society referred to in Section
2(e) (iv) of the Act and premises whereof
would
not
be
treated
as
a
'public
premises'. (Para 17)
Appeal dismissed (E-1)
Cases relied on :-
1. Kiran Singh & ors. Vs. Chaman Paswan and
others AIR (1954) SC 340
2. Sir Chunilal Vs. Mehta and sons Ltd Vs.
Century Spinning and Manufacturing Co. Ltd.
AIR (1962) SC 1314

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the
defendant-appellant, who is plaintiff-appellant
in the connected Second Appeal No. 92 of 2020
and Sri Digvijay Singh, learned counsel
appearing for the plaintiff-respondent in the
present appeal, who is defendant-respondent in
the connected Second Appeal No. 92 of 2020.

2. Since, same premises in question is
involved in Original Suit No. 114 of 2017
(Computer No. 101 of 2017) as well as in the
Original Suit No. 9 of 2017 (Computer No. 102
of 2017) between the same parties, the same are
being connected and are being decided by a
common judgment.

3. Second Appeal No. 94 of 2020 has
been filed for setting aside the judgment and
order
dated
16.10.2019
(decree
dated
22.10.2019) passed by the Additional District
and Session Judge, Court No. 1, Moradabad in
Civil Appeal No. 30 of 2019 (Harihar Tiwari
vs. Kshetriya Sri Gandhi Ashram) as well as
order dated 3.4.2019 passed by the Additional
J.S.C.C. / Additional Civil Judge (Senior
Division) in O.S. No. 114 of 2017 (Kshetriya
Sri Gandhi Ashram vs. Harihar Tiwari).

4. Second Appeal No. 92 of 2020 has
been filed for setting aside the judgment
3-5 All. Harihar Tiwari Vs. Kshetriya Sri Gandhi Ashram, Moradabad
1385
and order dated 16.10.2019 (decree dated
22.10.2019) passed by the Additional
District and Session Judge, Court No. 1,
Moradabad in Civil Appeal No. 31 of 2019
(Harihar Tiwari vs. Kshetriya Sri Gandhi
Ashram) as well as order dated 3.4.2019
(decree dated 9.4.2019) passed by the
Additional J.S.C.C. / Additional Civil
Judge (Senior Division) in O.S. No. 09 of
2017 ( Harihar Tiwari vs. Kshetriya Sri
Gandhi Ashram).

5. Original Suit No. 09 of 2017 was
filed by Harihar Tiwari against Kshetriya
Sri
Gandhi
Ashram
for
permanent
injunction regarding the premises
in
question, which is in his possession as
employee of the Kshetriya Sri Gandhi
Ashram. Original Suit No. 114 of 2017 was
filed against Harihar Tiwari by Kshetriya
Sri
Gandhi
Ashram
for
mandatory
injunction on the allegation that after
termination
of
his
services
he
is
unauthorized occupant in the premises in
question
and
therefore,
decree
of
eviction/possession against him was prayed
for.

6. Common facts are involved in both
the
suits.
Though
they
were
not
consolidated but were decided by the
judgments of the same date.

7. In the present second appeal,
submission of learned counsel for the
appellant is that his occupation of the
premises in question was as an employee of
the Kshetriya Sri Gandhi Ashram. His
services were undisputedly terminated by
the Management Committee on 8.7.2013
and the Assistant Registrar Firm, Society
and Chits, Moradabad set aside the said
order
vide
order
dated
4.3.2014.
Challenging the same Writ Petition No.
17553 of 2014 was filed by Kshetriya Sri
Gandhi Ashram, wherein the interim order
dated 26.3.2014 was granted staying the
operation of the order dated 4.3.2014
passed by the Assistant Registrar. He
submits that since writ petition is still
pending, therefore, he is not unauthorized
occupant and that the suit itself was not
maintainable.

8. For the purpose of entertaining
present appeal as well as the connected
appeal learned counsel for the appellant
submitted that the suit itself was not
maintainable in view of the provisions of
Section 15 of the U.P. Public Premises
(Eviction of Unauthorized Occupant) Act,
1972 (hereinafter referred to as the Act of
1972). After arguments learned counsel for
the appellant admitted that infact, his suit
was filed as a regular civil suit and was
decided by the Civil Judge as a regular civil
court and therefore, other grounds and
questions relating to J.S.C.C. would not be
relevant.

9. I have carefully gone through the
substantial questions of law framed in the
memo of appeal in both the appeals.

10. Substantial questions of law
framed in both the appeals are quoted as
under:-

Second Appeal No. 94 of 2020

"A. Whether both the courts
below have exceeded their jurisdiction in
deciding the suit/appeal which was bar
under section 15 of U.P. Public Premises
(Eviction of Unauthorized Occupants) Act,
1972.

B. Whether the J.S.C.C. Court
has erred in taking the cognizance of the
suit which is barred by Article 4, Article
17, and Artical 19 of Scheduled 2 of the
Provincial Small Cause Court Act, 1887.
1386 INDIAN LAW REPORTS ALLAHABAD SERIES

C. Whether the lower appellate
court was justified in deciding the appeal
whereas no appeal lies under section 96 of
C.P.C. against the judgment and decree of
J.S.C.C. Courts.

D. Whether both the court below
was justified in passing the order of
eviction on the ground of dismissal of
service which is still subjudice before this
Hon'ble High Court.

E. Whether the J.S.C.C. Court
erred in taking the cognizance of the suit on
the ground of pecuniary jurisdiction as the
valuation of suit is above 1,00,000/-."

Second Appeal No. 92 of 2020

"A. Whether both the courts
below have exceeded their jurisdiction in
deciding the suit/appeal which was bar
under section 15 of U.P. Public Premises
(Eviction of Unauthorized Occupants) Act,
1972.

B. Whether the trial court below
was justified in dismissing the suit without
deciding the issue no. 4, regarding the
jurisdiction of court, which is in the teeth of
the requirement of order XX Rule 5 C.P.C.

C. Whether the lower appellate
court was justified in deciding the appeal
whereas no appeal lies under section 96 of
C.P.C. against the judgment and decree of
J.S.C.C. Courts.

D. Whether the J.S.C.C. Court
has erred in taking the cognizance of the
suit which is barred by Article 4, Article
17, and Artical 19 of Scheduled 2 of the
Provincial Small Cause Court Act, 1887.

E. Whether both the court below
was justified in passing the order of
eviction on the ground of dismissal of
service which is still subjudice before this
Hon'ble High Court.

F. Whether the J.S.C.C. Court
erred in taking the cognizance of the suit on
the ground of pecuniary jurisdiction as the
valuation of suit is above 1,00,000/-."

11. He submits that substantial
question of law involved in the case is as to
whether the suit filed by the Kshetriya Sri
Gandhi Ashram was barred by Section 15
of the Act of 1972. He has placed reliance
on judgment of Hon'ble Apex Court in the
case of Kiran Singh and others vs.
Chaman Paswan and others AIR 1954
SC 340 to submit that question of
jurisdiction can be raised at any point of
time even if the same was not raised earlier.
He submits that in case the court has no
jurisdiction then the decree and judgment
of the trial court or any other court not
having jurisdiction would be a nallity.

12. Per contra, learned counsel for the
respondent has disputed the same and
submits that the suit was maintainable. He
further submits that hence no substantial
question of law is involved and the present
second appeal is devoid of merits. He
submits
that
Harihar
Tiwari
was
unauthorized occupant after termination of
his services and his status as on date is that
of an unauthorized occupant and hence, no
relief can be granted to the appellant.

13. I have considered the submissions
and have perused the record.

14. The facts are not in dispute.

15. In support of his arguments of
learned counsel for the appellant that a
substantial question of law is involved, he
has also drawn attention to Section 15 of
the Act of 1972, which provides that the
jurisdiction of civil court is barred in case
of a public premises.

16. A reference to definition of public
premises as given in the Act would,
therefore, be relevant. Section 2(e) of the
Act of 1972 provides for definition of
3-5 All. Harihar Tiwari Vs. Kshetriya Sri Gandhi Ashram, Moradabad
1387
public premises. Sub-section (iv) of Section
2(e) provides as under:-

"(e) "public premises" means any
premises belonging to or taken on lease or
requisitioned by, or on behalf of, the State
Government, and includes any premises
belonging to, or taken on lease by, or on behalf
of-

(i) .....

(ii) .....

(iii).....

(iv) any society registered under the
Societies Registration Act, 1860, the governing
body whereof consists, under the rules or
regulations of the society, wholly of public
officers or nominees of the State Government
or both."
(emphasis supplied)

17. A perusal of the aforesaid definition
clearly indicates that the Act would apply only
in case, when a society is registered under the
Societies Resigration Act, 1860, the governing
body whereof consists, under the rules or
regulations of the society, wholly of public
officers or nominees of the State Government
or both. Therefore, it is very much clear that
unless the governing body of the society
consists of wholly of public officer or nominees
of the State Government or both, only then it
can be treated as a society referred to in Section
2(e) (iv) of the Act and premises whereof
would be treated as a "public premises".

18. In the present case, it is not the case of
Harihar Tiwari that the society (his employer)
consists of any such governing body or any
such persons as given in Clause (iv) of Section
2(e) of the Act of 1972.

19. A perusal of the trial court's judgment
would clearly indicates that issue no. 5 was
framed in respect as to whether the court has
jurisdiction to try the suit. This issue was
decided against the defendant Harihar Tiwari
vide order dated 27.2.2018 and was made part
of the judgment.

20. A perusal of memo of 1st appeal filed
before the lower appellate court clearly
indicates that the said finding on issue no. 5 was
not challenged and the jurisdiction of the court
was thus, admitted by the appellant Harihar
Tiwari.

21. Even if it is accepted that the
question of jurisdiction can be challenged
at any stage, this Court is of the opinion
that since the society is not being alleged to
be a society governing body whereof
consists of wholly of public officers or
nominees of the State Government or both,
under such circumstances, Kshetriya Sri
Gandhi Ashram cannot be treated to be a
society, premises whereof can be held to be
"public premises" as provided under
Section 2(e) of the Act of 1972. Fact of the
matter is that there was even no pleading to
this effect.

22. A Constitutional Bench of 5
Judges of Hon'ble Apex Court in Sir
Chunilal V. Mehta and sons Ltd vs.
Century Spining and Manufacturing Co.
Ltd AIR 1962 SC 1314 has considered the
question 'as to what is the substantial
question of law'. Various judgments of
High
Courts
and
Full
Bench
were
considered by the Hon'ble Constitutional
Bench and it was held that if the question is
settled then it would not be a substantial
question of law. Paragraph 6 of the
aforesaid judgment is quoted as under:-

"6. We are in general agreement
with the view taken by the Madras High
Court and we think that while the view
taken by. the Bombay High Court is rather
narrow the one taken by the former High
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of Nagpur is too wide. The proper
test for determining whether a question of
law raised in the case is substantial would,
in our opinion, be whether it is of general
public importance or whether it directly
and substantially affects the rights of the
parties and if so whether it is either an open
question in the sense that it is not finally
settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion
of alternative views. If the question is
settled by the highest Court or the general
principles to be applied in determining the
question are well settled and there is a mere
question of applying those principles or
that the plea raised is palpably absurd the
question would not be a substantial
question of law."(emphasis supplied)

23. Therefore, it is clear that merely
because in the substantial question of law
so framed in the memo of appeal involving
interpretation of any particular provision of
the law by itself could not be a substantial
question of law.

24. In the present case, definition of
the word "public premises" itseld would
make it abundantly clear that in absence of
any pleading or evidence on record to the
effect that the defendant society was a
society covered under Clause (iv) of
Section 2(e) of the Act of 1972, the suit
cannot be said to be barred by Section 15 of
the Act of 1972.

25. In the opinion of this Court it is
not a substantial question of law, which
requires any interpretation by this Court in
view of the law laid down by Hon'ble Apex
Court in Sir Chunilal V. Mehta and sons
Ltd (supra) the question framed above,
even if it is treated to be a question of law,
it is not open to interpretation.

26.

Insofar
as
the
substantial
questions of law as framed in the memo of
appeal regarding applicability of the
Provincial Small Causes Court Act are
concerned, it is clear that both the suits
filed as regular original suits and were
decided on regular civil side and not by the
court as Judge, Small Causes, therefore,
first appeal is maintainable under Section
96 of C.P.C. Hence, no substantial question
requiring interpretation of or applicability
of Provincial Small Causes Court Act, 1887
is involved in the present appeal in this
regard is involved. His position has also
been admitted by learned counsel for the
appellant during course of arguments.

27. This Court is of the opinion that
no substantial question of law is involved
in the present case.

28. Both the appeals are devoid of
merits and are accordingly dismissed.
----------
(2020)03-05ILR A1388
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR-II, J.

Second Appeal No. 171 of 2010

Banshraj ...Appellant
Versus
Ram Naresh & Anr. ...Respondents

Counsel for the Appellant:
Rajendra Prasad Tripathi

Counsel for the Respondents:
Nishant Srivastava, Dinesh Kr. Shukla

A. Civil law-Civil Procedure Code - Section
11 - U.P. Panchayat Raj Act, 1957 -