# Virendra Singh Pal v. Judge, Small Causes Court, Kanpur Nagar, and others

- **Citation:** (2004) 1 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-22
- **Case number:** Civil Misc. Writ Petition No. 3891 of 2004
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-pal-v-judge-small-causes-court-kanpur-nagar-and-others-40321
- **Pages:** 4

## Headnote

Code of Civil Procedure, 1908-Section
47-U.P. Provincial Small Causes Courts
Act-S.17-Suit for eviction and arrears of
rent-Exparte
decree-Restoration
application
dismissed-Executionobjection
denying
plaintiffs
title
as
already acquired by KDA-Rejection by
JSCC-Revision
dismissed-petition
questioning Court's jurisdiction to pass
decree-sought to be executed on basis of
material brought on record only in
execution proceeding consisting of pleas
taken by K.D.A. in earlier suit-petitioner
cannot assert that on basis of material
on record before trial Court till passing of
exparte decree can be said to be nullity
on without jurisdiction-Held, petitioner
cannot be permitted to challenge decree
on
ground
of
nullity
in
execution
proceedings on basis of material brought
on record for first time in execution
proceedings itself.

Held: Para 10

In the instant case the tenant-petitioner
is questioning the jurisdiction of the
Court to pass the decree which is sought
to be executed on the basis of material
brought on record only in execution
proceedings consisting of pleas taken by
K.D.A. in the earlier suit. Neither the
petitioner has asserted nor he can assert
that on the basis of material on record
before the trial court till the date of
passing of the ex-parte decree, the
decree can be said to be nullity or
without jurisdiction. Petitioner in view
of
the
aforesaid
authority
of
the
Supreme Court cannot be permitted to
challenge the decree on the ground that
it was nullity in execution proceedings
on the basis of material brought on
record for the first time in the execution
proceedings itself by him.
Case law discussed:
AIR 1972 SC 1371
AIR 1994 SC 853
AIR 1996 SC 1819
2003 ACJ 1966
(2004) 1 AWC 6
(2004) 1 AWC 247
(1990) 1 SCC 193
AIR 1997 SC 122
AIR 2002 SC 569 & 665
AIR 1998 SC 2549
AIR 1970 SC 1475

## Text

188 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
5. Since it is agreed between the
parties that in the present controversy
pure questions of law are involved,
therefore there is no need to invite any
counter affidavit and the matter be
decided finally.

6. In view of what has been stated
above, without entering into the merits of
otherwise of this case, this writ petition
succeeds and is allowed. The impugned
order dated 3rd March, 2004, Annexure-16
to the writ petition is quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2004

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 3891 of 2004

Virendra Singh Pal
 ...Petitioner
Versus
Judge,
Small
Causes
Court,
Kanpur
Nagar, and others
 ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondents:
S.C.

Code of Civil Procedure, 1908-Section
47-U.P. Provincial Small Causes Courts
Act-S.17-Suit for eviction and arrears of
rent-Exparte
decree-Restoration
application
dismissed-Executionobjection
denying
plaintiffs
title
as
already acquired by KDA-Rejection by
JSCC-Revision
dismissed-petition
questioning Court's jurisdiction to pass
decree-sought to be executed on basis of
material brought on record only in
execution proceeding consisting of pleas
taken by K.D.A. in earlier suit-petitioner
cannot assert that on basis of material
on record before trial Court till passing of
exparte decree can be said to be nullity
on without jurisdiction-Held, petitioner
cannot be permitted to challenge decree
on
ground
of
nullity
in
execution
proceedings on basis of material brought
on record for first time in execution
proceedings itself.

Held: Para 10

In the instant case the tenant-petitioner
is questioning the jurisdiction of the
Court to pass the decree which is sought
to be executed on the basis of material
brought on record only in execution
proceedings consisting of pleas taken by
K.D.A. in the earlier suit. Neither the
petitioner has asserted nor he can assert
that on the basis of material on record
before the trial court till the date of
passing of the ex-parte decree, the
decree can be said to be nullity or
without jurisdiction. Petitioner in view
of
the
aforesaid
authority
of
the
Supreme Court cannot be permitted to
challenge the decree on the ground that
it was nullity in execution proceedings
on the basis of material brought on
record for the first time in the execution
proceedings itself by him.
Case law discussed:
AIR 1972 SC 1371
AIR 1994 SC 853
AIR 1996 SC 1819
2003 ACJ 1966
(2004) 1 AWC 6
(2004) 1 AWC 247
(1990) 1 SCC 193
AIR 1997 SC 122
AIR 2002 SC 569 & 665
AIR 1998 SC 2549
AIR 1970 SC 1475

(Delivered by Hon'ble S.U. Khan, J.)

1. This is tenant's writ petition.
Landlord respondent filed a suit for
eviction against the tenant petitioner
being SCC Suit No. 360 of 1996 on the
http://www.allahabadhighcourt.nic.in
1 All] Virendra Singh Pal V. Judge, Small Causes Court, Kanpur Nagar and others 189
file of JSCC Kanpur Nagar. According to
the plaint of the said suit provisions of
U.P. Act No. 13 of 1972 were not
applicable to the shop in dispute;
defendant was the tenant of the shop in
dispute on behalf of the plaintiff at the
rate of Rs. 450/- per month; the tenant had
taken the shop on rent for five years
which period had expired and that tenant
had not paid the rent for more than four
months
inspite
of
notice
dated
18.10.1995. The tenant had not appeared
in the suit hence it was decreed exparte on
14.5.1999 by JSCC, Kanpur Nagar. The
suit was filed on 21.8.1996. Prior to filing
of the aforesaid suit for ejectment plaintiff
had filed another Regular Suit No. 524 of
1996
against
Kanpur
Development
Authority and tenant Veerendra Singh Pal
who was also defendant in the suit for
ejectment. The suit was dismissed in
default. The case of the petitioner is that
in the suit for ejectment no notice or
summons was served upon him. The
petitioner on 16.8.2001 filed restoration
application for setting aside the exparte
decree and judgment dated 14.5.1999
alongwith an application u/s 17 PSCC Act
for permission to furnish security instead
of depositing of decreetal amount in cash.
The application to furnish security was
rejected on the same date i.e. on
16.8.2001 and the petitioner was directed
to deposit the decreetal amount in cash by
18.8.2001. Execution application had
already been filed by the plaintiff
respondent.
In
the
said
execution
application the petitioner on 17.8.2001
filed objection u/s 47 C.P.C. which was
supplemented by supplementary objection
dated 27.10.2001. The main thrust of the
petitioner in his objection in execution
application was that the plaintiff was not
owner of the shop in dispute as the same
had already been acquired by Kanpur
Development Authority. In the said
objections reliance was placed upon the
defence
taken
by
the
Kanpur
Development Authority in O.S. No. 524
of 1996 and on the documents filed by the
Kanpur Development Authority in the
said suit. One of the objections was that
the decree was bad to the extent of nullity
for
non-impleadment
of
Kanpur
Development Authority. The objections
were rejected by JSCC, Kanpur Nagar on
4.12.2003 (execution application and the
objections were numbered as Case No.
65/74/99) Against the said order dated
4.12.2003 the petitioner filed revision
being SCC Revision No. 101/2003. The
said revision was dismissed in limine by
District
Judge,
Kanpur
Nagar
on
19.12.2003. This writ petition is directed
against the aforesaid order rejecting the
objections of the petitioner in execution.

2. In para 28 (ii) of the writ petition
it has been mentioned that the restoration
application
of
the
petitioner
was
dismissed by JSCC, Kanpur Nagar for
want of compliance of provisions of
Section 17 of PSCC Act. In the instant
writ petition prayer for quashing plaint of
SCC Suit No. 360/96, orders dated
4.12.2003,14.5.1999,16.8.2001
and
19.12.2003 has been made.

3. The solitary argument of the
learned counsel for the petitioner is that
the exparte decree passed by JSCC dated
14.9.1990 is without jurisdiction, hence it
could be questioned and set aside in
execution
proceedings
also.
Learned
counsel for the petitioner has placed
reliance upon the following authorities:
1.
AIR 1972 SC 1371,
2.
AIR 1994 SC 853,
3.
 AIR 1996 SC 1819,
4.
2003 ACJ 1966,
http://www.allahabadhighcourt.nic.in
190 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
5.
2004 (1) AWC 6 and
6.
2004(1) AWC 247.

4. This question has been dealt with
in detail in 1990(1) SCC 193 which is a
judgment by three Hon'ble Judges and
has been referred to in AIR 1996 SC 1819
(supra). In this regard reference can also
be made to AIR 1997 SC 122.

5. The question of dispossession of
landlord by paramount title holder has
been discussed in two recent authorities of
Supreme Court reported in AIR 2002 SC
569 and 665. In the latter authority (O.P.
Gupta Versus R.B. Goel), it has been held
that firstly evidence to that affect must
property be brought on record by the
tenant. In the said case during pendency
of appeal the said fact was stated in an
affidavit filed by the tenant in appeal.
Written Statement was not got amended.
The Supreme Court held that the said plea
could not be considered. Similarly in the
instant case the tenant did not file any
written statement taking the said plea. In
fact tenant did not pursue his restoration
application. He cannot therefore be
permitted to raise this/ objection in
execution. In the aforesaid authority of
Supreme Court (O.P. Gupta Versus R.B.
Goel) it was also held that unless there
was an order of resumption and forfeiture
passed by the Development Authority
against
the
landlord,
the
plea
of
dispossession by paramount titleholder
could not be successfully taken by the
tenant.

6. In the aforesaid earlier authority
of the Supreme Court (Vashu Deo Versus
Bal Kishan) three principles have been
laid down for application of plea of
dispossession by paramount titleholder:-
(i) The party evicting must have a good
and present title to the property.
(ii) The tenant must have quitted or
directly
attorned
to
the
paramount
titleholder against his will.
(iii) Either the landlord must be willing or
be a consenting party to such direct
attornment by his tenant to the paramount
titleholder or there must be an event, such
as a change in law or passing of decree by
a competent court, which would dispense
with the need of consent or willingness on
the part of the landlord and so bind him as
would enable the tenant handing over
possession or attorning in favour of the
paramount title holder directly, or in other
words the paramount title holder must be
armed with such legal process for eviction
as can not be lawfully resisted (para 12).

In the instant case none of the
aforesaid conditions is satisfied.

7. Even otherwise JSCC while
deciding suit for eviction filed by alleged
landlord against his alleged tenant has got
full jurisdiction to decide the question of
title incidentally for the purposes of the
decision of the suit (it is another matter
that said decision may not operate or res
judicata in regular suit based upon title.)
In this regard reference may be made to
AIR 1998 SC 2549. It can not therefore
be said that the order of the JSCC
decreeing the suit was without jurisdiction
and nullity regarding title of the plaintiff
respondent for the purpose of deciding the
suit for eviction. Objection u/s 47 of CPC
on the basis that the landlord had no title
or JSCC had no jurisdiction to decide
question of title is not maintainable.

8. Objections u/s 47 CPC on the
ground of decree being nullity as having
been
passed
by
court
having
no
http://www.allahabadhighcourt.nic.in
1 All] Sukhveer and others V. State of U.P. and others 191
jurisdiction can be permitted to be raised
only in rarest of rare cases. It can not be
permitted to be used as second inning of
litigation. Even if all the allegations made
by the tenant are taken to be correct still it
cannot be said that the JSCC while
deciding the suit had no jurisdiction to
decide the said points and objections.

9. In V.D. Modi Vs. R.A. Rahman,
A.I.R. 1970 S.C. 1475 it has been held in
para-7:-
"When the decree is made by a Court
which has no inherent jurisdiction to
make it, objection as to its validity may be
raised in an execution proceeding if the
objection appears on the face of the
record: where the objection as to the
jurisdiction of the Court to pass the decree
does not appear on the face of the record
and requires examination of the questions
raised and decided at the trial or which
could have been but have not been raised,
the
executing
court
will
have
no
jurisdiction to entertain an objection as to
the validity of the decree even on the
ground of absence of jurisdiction."

10. In the instant case the tenantpetitioner is questioning the jurisdiction
of the Court to pass the decree which is
sought to be executed on the basis of
material brought on record only in
execution proceedings consisting of pleas
taken by K.D.A. in the earlier suit.
Neither the petitioner has asserted nor he
can assert that on the basis of material on
record before the trial court till the date of
passing of the ex-parte decree, the decree
can be said to be nullity or without
jurisdiction. Petitioner in view of the
aforesaid authority of the Supreme Court
cannot be permitted to challenge the
decree on the ground that it was nullity in
execution proceedings on the basis of
material brought on record for the first
time in the execution proceedings itself by
him.

Accordingly, there is no merit in this
petition and it is dismissed.

11. The tenant petitioner is granted
three months time to vacate provided that
within one month from today he files an
under taking before JSCC to the affect
that on or before the expiry of the
aforesaid period of three months he will
willingly vacate and hand over the
possession of the property in dispute to
the landlord.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 2594 of 2002

Sukhveer and others
 ...Petitioners
Versus
State
of
U.P.
through
Collector,
Gautambudh Nagar and others

 ...Respondents

Counsel for the Petitioners:
Sri Pankaj Mithal

Counsel for the Respondents:
Sri A.K. Mishra
Sri Vivek Saran
S.C.

Land Acquisition Act-Ss. 4, 6 and 11-A-
Land acquisition-Notification under S. 6
issued after one year from publication of
notification
under
S.4-Held,
invalidPossession of land also not taken-Land in
question not vested with NOIDA-Further
http://www.allahabadhighcourt.nic.in