# Sahid Ahmed and others v. Additional District Judge, III, Saharanpur and others

- **Citation:** (2002) 2 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-23
- **Case number:** Civil Misc. Writ Petition No. 393 of 1995
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahid-ahmed-and-others-v-additional-district-judge-iii-saharanpur-and-others-40004
- **Pages:** 4

## Headnote

S.C.

Provincial
Small
Cause
Courts
Act-
section 23- merely because an objection
has
been
raised
that
there
is
no
relationship between the landlord and
tenant, it cannot be said that the suit is
barred by section 23. (Held in para 5).

Case Law Referred:
AIR 1990 Alld. Page 169
1988 A.W.C. Page 1057
1987 Vol. (1) ARC Page 89

In the teeth of the findings of the two
courts below and the law laid down by
this court as well as apex court no error
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
524
of law cannot be said to have been
committed either by the trial court or
revisional court.

## Text

http://www.allahabadhighcourt.nic.in
2 All] Sahid Ahmed and others V. A.D.J., Saharanpur and others
523
orders passed in utter disregard of Article
14 and 21 of the Constitution deserves to
be quashed.

12. Learned counsel for the
petitioner has also questioned the finding
of the tribunal that the petitioner has
committed
misconduct
by
keeping
typewriter and other official record at a
privately rented room, on the ground that
the statement of the petitioner explaining
that he was orally permitted by the
Prabhari Adhikari to discharge the official
function at rented room for the reason that
there was unduly rush of the politicians
and other influential persons seeking arm
licence. This statement of the petitioner
having not been controverted by the
prescribed authority and as such the
finding of the tribunal is wholly perverse
and unsustainable in law. In fact the
tribunal erred in placing the burden upon
the petitioner to prove that the entry in the
arms register was not forged by him or
that it was not done so to his knowledge.
Burden to prove the charge was on the
Respondent but the tribunal erroneously
assumed that the burden was on the
petitioner.
The
impugned
order
is
therefore, vitiated by error of law.

13. From the perusal of the record it
is also evident that the petitioner was
prevented to place his defence before the
enquiry
officer
as
no
opportunity,
admittedly, was afforded to the petitioner,
therefore, it cannot be said that the
submissions advanced by the petitioner
are without force. Having perused the
record and after hearing arguments
advanced across the Bar we are of the
view that the judgment and order passed
by the learned tribunal, in totality, suffers
from misreading of fact, non application
of mind, legal infirmities and being based
conjuncture and surmises deserves to be
quashed.

14. In the result the writ petition
succeeds and is allowed. The impugned
order dated 29.5.1998 (Annexure-4 to the
writ petition), order dated 26.11.1998
(Annexure-5 to the writ petition), and the
order of the learned tribunal dated
24.7.1998
(Annexure-7
to
the
writ
petition) are quashed. However, it is open
to the Respondents to pass fresh orders in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 393 of 1995

Sahid Ahmed and others
...Petitioner
Versus
Additional
District
Judge,
III,
Saharanpur and others ...Respondents

Counsel for the Petitioners:
Sri Anurag Pathak

Counsel for the Respondents:
S.C.

Provincial
Small
Cause
Courts
Act-
section 23- merely because an objection
has
been
raised
that
there
is
no
relationship between the landlord and
tenant, it cannot be said that the suit is
barred by section 23. (Held in para 5).

Case Law Referred:
AIR 1990 Alld. Page 169
1988 A.W.C. Page 1057
1987 Vol. (1) ARC Page 89

In the teeth of the findings of the two
courts below and the law laid down by
this court as well as apex court no error
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
524
of law cannot be said to have been
committed either by the trial court or
revisional court.

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

1. This writ petition is directed
against the order passed by the Revisional
Court in JSCC Revision No.243 of 1988,
whereby
the
petitioners-tenant
has
challenged the order passed by Judge,
small causes in a suit filed by the
respondent-landlord.

2. The facts leading to filing of the
present writ petition are that Mukhtar
Ahmad and his wife filed a suit against
the
petitioner-tenant
and
their
predecessors, which was decreed by the
trial court on 22.9.1988 after rejecting the
objection raised by the tenant-petitioners
that there is not relationship of landlord
and tenant between the plaintiff and
defendant and therefore the suit is not
entertainable by the Judge, Small Causes
Court in view of Section 23 of Provincial
Small Cause Courts Act. The trial court
has gone into that this question and
arrived at the conclusion after discussing
the evidence led by the parties that there
is relationship of landlord and tenant
between the plaintiff and defendant and
provisions of Act No. 13 of 1972 are
applicable to the accommodation in
dispute and therefore suit was decreed as
stated above. Aggrieved thereby the
petitioner-tenant preferred a revision. The
revisional court affirmed the findings of
the trial court that there is relationship of
landlord and tenant between the plaintiff
and defendant and defendant is defaulter
in payment of rent and the defendant has
not claimed benefit of Section 20 (4). The
suit was therefore, rightly decreed and the
contention of the defendant that the trial
court should have returned back the plain
to be presented before the appropriate
court is not correct. This view of the
Courts below finds support from the law
laid down by this Court as well as the
Hon'ble Supreme court as hereinafter
discussed.

3. In these circumstances, the suit
cannot be said to be barred by Section 23
of Provincial Small Cause Courts Act and
laid down by this Court in AIR 1990
Alld. Page 169 confirming the findings.
The revisional court rejected the revision.
Now the petitioner has challenged the
aforesaid two orders before this Court and
reiterated the arguments, which were
raised before the two courts below
particularly
with
regard
to
the
maintainability of the suit in view of the
provisions of Section 23. Section 23 has
been stalled out and this Court has held as
stated in the case referred to above that
merely because an objection has been
raised that there is no relationship
between the landlord and tenant, it cannot
be said that the suit is barred by Section
23. Learned counsel for the petitioner has
relied upon a decision of Apex Court
reported in 1988 AWC page 1057;
Budhu Mal Versus Mahabir Prasad and
others, para 10 of which is reproduced
below:

"10. 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 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
http://www.allahabadhighcourt.nic.in
2 All] Sahid Ahmed and others V. A.D.J., Saharanpur and others
525
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. On
the facts of 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 returned for
presentation to a court having jurisdiction
to determine the title. In case the plea set
up by the appellants that by the deed
dated 8th December, 1966 the benefit
arising out of 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. Sulochana
Devi and that the said deed could not be
unilaterally cancelled, is accepted, it
likely not only to affect the title of
Mahabir Prasad to realize 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
such cases where the plaints ought to have
been
returned
for
presentation
to
appropriate court so that none of the
parties was prejudiced."

4. In view of the law laid down in
my opinion the trial court as well as the
revisional court has not committed any
error of law. This Court in the case
reported in 1987 Vol.(1) ARC page 89,
para 10, which is reproduced below has
held that:

"10. On a reading of this sub-section
(1), it is apparent that a discretion has
been conferred on the Court to return the
plaint if it is satisfied that a question of
title is involved in the suit which it cannot
finally determine. It is only in such a
situation that it is open to the Court of
Judge, Small Causes to exercise a
direction whether return the plaint or not.
A mere allegation in the written statement
that the title vests in a defendant in a suit
filed for ejectment and arrears of rent, is
by itself not sufficient to establish that the
question of title is involved in a suit. Only
after evidence has been produced and the
Court is of the opinion that a question of
title is involved in the suit, which the
Court of Judge, Small Causes cannot
finally determine, it is open to the court to
return the plaint. In the present case, only
a written statement had been filed in
which the title had been set up. Mere
filing of the written statement does not
entitle the defendant-petitioner to move
an application for return of the plaint to
the proper court. In view of the above, I
am of the opinion that the Court below
was right in refusing to exercise a
discretion under Section 23 of the Act at
this stage."

5. In view of what has been stated
above, in my opinion in the teeth of the
findings of the two courts below and the
law laid down by this court as well apex
court no error of law cannot be said to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
526
have been committed either by the trial
court or revisional court.

6. In this view of the matter, this
writ petition being devoid of any merit
deserves to be dismissed and is hereby
dismissed. The interim order, if any,
stands vacated. However, the parties shall
bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.06.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 20440 of 2001

Bharat Sanchar Nigam Ltd. ...Petitioner
Versus
Brij Mohan Srivastava and another

 ...Respondents

Counsel for the Petitioner:
Sri Umesh Narain Sharma
Sri Devi Shanker Shukla

Counsel for the Respondents:
Sri B.P. Srivastava
S.C.

Constitution of India- Article 226- If the
appointment
is
cancelled
arbitrarily
without a valid reason and without
following principles of natural justice,
such an action is arbitrary and capricious
and
is
hit
by
Article
14
of
the
Constitution of India and has to be
struck down. (Held in para 24)
Case Law Referred:
1979 (1) SCC 168
1990 (3) SCC 655
1991 Supp. (2) SCC 421
AIR 2001 1176
2001 (6) SCC 292

If
the
appointment
is
cancelled
arbitrarily without a valid reason and
without following principles of natural
justice, such an action is arbitrary and
capricious and is hit by Article 14 of the
Constitution of India and has to be
struck down.

(Delivered by Hon'ble M. Katju, J.)

1. This bunch of five writ petitions
is directed against the judgment dated
12.2.2001 (annexure 1 to the writ petition)
delivered by the Central Administrative
Tribunal, Allahabad, here-in-after called
as 'CAT' in five connected Original
Application Numbers (here-in-after called
as 'OA') 1038/98, 1012/98, 789/99,
802/99, 812/99 which were disposed of
by
the
common
judgment
dated
12.2.2001, aforesaid.

2. These five OA Nos., mentioned
above, were filed by the employees of
Bharat
Sanchar
Nigam,
which
had
cancelled their selection and appointment
to the post of Stenographer, Grade III, in
the Bharat Sanchar Nigam Ltd.. True
copy of the OA filed by the respondent
no. 1, is annexure no. 3 to the writ
petition.

3. The applicant employees prayed
before the Tribunal that the order of
cancellation
of
their
selections/appointments as Stenographers,
Grade III be quashed.

4. The relevant facts of the case are
that an advertisement no. 3/93 was
published in the newspapers by the Chief
General Manager, Telecommunications,
Lucknow calling for applications for the
said posts. About 4000-5000 candidates
applied, though the applications were not
invited
through
the
Employment