REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

S.L.P (C)Nos.30648-30651 /2010 @(CC No.14376-14379 of 2010)

Nirmal Jeet Singh Hoon              …Appellant

Versus

Irtiza Hussain & Ors.                  ...Respondents

O R D E R

Dr. B.S. CHAUHAN, J.

1. Delay condoned.  

2. The application for permission to appear in person and argue is  

allowed.  

3. Facts and circumstances giving rise to the case are as follows:

(A) Irtiza  Hussain,  Zaheeda  Khatoon  and  Murtuza  Hussain  

(hereinafter referred to as `respondents’), were the original plaintiffs  

in Small Cause Case No. 41 of 1974 under Section 21 (1)(a) of the  

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,  

1972  (hereinafter  called  the  Act  1972).  Nirmal  Jeet  Singh  Hoon,  

(hereinafter  referred to as ‘petitioner’),  was defendant No. 3 in the  

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above-mentioned case which was Suit  for  ejectment and arrears  of  

rent  filed  by  the  respondents/plaintiffs.  The  case  of  the  

plaintiffs/respondents  was  that  defendant  no.  1,  namely,  Shri  Ram  

Prasad (dead-nothing on record to show as to whether his legal heirs  

had been substituted) and defendant no. 2, namely, M/s United Hotels  

Pvt. Ltd., had illegally sub-let the suit property to the petitioner; and  

defendants had also refused to pay the amount due as rent and they  

should, therefore, be evicted from the suit property.   

(B) Smt. Sarvari Khatoon, Plaintiff no. 4 in Small Cause Case No.  

41 of 1974 died during the pendency of the Suit and her right, title and  

interest in the suit property vested in her children i.e. the respondents,  

who were also the co-plaintiffs before the trial court.

(C) The case of all the defendants including the petitioner was that  

they did not sub-let the property to the petitioner.  All the defendants  

also contended that they were entitled to a reduction in rent as the  

plaintiffs  were  illegally  in  occupation  of  large  parts  of  the  suit  

property.   The  petitioner  denied  the  plaintiffs’  claims  and  in  his  

written statement,  he submitted that no proper notice under Section  

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106 of the Transfer of Property Act, 1882 (hereinafter referred to as  

‘TP Act’), had been issued to him and so he could not be evicted.  The  

petitioner also questioned the jurisdiction of the court to entertain the  

suit and stated that the respondents had illegally sold part of the suit  

property to a third party, so were not entitled to any relief.   

(D)   In view of the pleadings taken by the parties in the Small Cause  

Court, the court framed 29 issues and the parties led evidence on the  

said  issues.   The  court  after  appreciating  the  evidence  decreed  the  

Suit, vide judgment and decree dated 22.8.2008 against the defendants  

with  cost  for ejectment,  arrears  of  rent,  restoration  of  the items of  

furniture,  crockery  and  cutlery  and  the  defendants  were  further  

directed to pay pendent lite  and future mesne profits till the date of  

actual delivery of possession of the suit property.   Further, it was held  

that petitioner was not a sub-tenant in possession of the property and  

defendant nos. 1 and 2 were in exclusive possession of the premises.

(E) The High Court of Uttarakhand at Nainital vide judgment and  

order  dated 23.7.2009 dismissed  the  Revision  Petition  filed  by  the  

petitioner and upheld the decree of the Small Cause court.   The High  

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Court confined its judgment to the questions of arrears of rent and  

sub-letting.  The High Court held that the trial court had jurisdiction to  

entertain the suit; notice was served on all the parties in accordance  

with the provisions of Section 106 of the TP Act. The High Court also  

agreed with the findings of the trial court with respect to the questions  

relating to the arrears of rent.   

(F) Aggrieved by the decision of the High Court, petitioner filed  

Review Petition  No.  633 of  2009.   The  said  Review Petition  was  

heard  in  the  absence  of  the  petitioner,  as  he  did  not  appear,  and  

dismissed  vide  order  dated  2.9.2009  by  a  speaking  and  reasoned  

order.   

(G) Subsequent to the retirement of the Chief Justice of the High  

Court (who had heard the afore-mentioned Revision Application and  

the Review Petition),  petitioner  filed  a  Recall  Application  (M.C.C.  

No. 711 of 2009), wherein he raised the issue of the propriety of the  

ex-parte  dismissal  of  his  Review  Petition  and  made  certain  un-

substantiated allegations against the former Chief Justice of the High  

Court.  The issues were dealt with by the High Court and it observed  

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that the Recall Application had been drafted in bad taste and did not  

have any legal basis.  The said Recall Application was dismissed vide  

order 18.3.2010.

(H) Still  dissatisfied  with  the  decision  of  the  High  Court,  the  

petitioner  preferred  Reconsideration  Application  No.  262  of  2010.  

The said Reconsideration Application was also dismissed as not being  

maintainable in law vide order dated 23.4.2010.

(I)   Being aggrieved, these Special Leave Petitions have been filed  

with application for condonation of delay challenging all the orders  

passed by the High Court.

4) The  petitioner-in-person  has  raised  only  scandalous  and  

unsubstantiated allegations against the Hon’ble Chief Justice who has  

decided  the  Revision  Application  and  Review  Petition  and  the  

advocates who had dealt with the case relating to the suit property at  

an early stage and have been elevated to the Bench of the High Court.  

He kept his case limited to the issue of the transfer of the suit property  

prior to the institution of the Suit and his only submission is that such  

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a big fraud has been committed in this case, that it requires a thorough  

investigation against the judge who has decided this case. In spite of  

several  questions  put  to  him by us,  wherein  he has  been asked as  

under  what  circumstances  he  was concerned  with  the  property,  he  

could not point out any document whatsoever, to show that he had  

been in lawful possession of the property, nor could he explain under  

what circumstances he could get the possession of the property.  His  

parrot like narration, at all the times had been that the greatest fraud  

on the earth has been committed by transferring this property. We fail  

to understand how the petitioner could challenge the transfer, if he has  

no title in the suit property.

It appears from the judgment of the trial court that at the time of  

framing the issues,  the trial  court  refused to frame an issue on the  

alleged fraud involving the transfer of property, for the reason that  

nobody had challenged the ownership of the plaintiffs and the present  

petitioner was not in a position to disclose in what capacity he entered  

into the property.  The court refused to investigate the allegation that  

Sarvari Khatoon had executed any Will of the property in favour of  

plaintiff  No.1.   We fail  to understand in what  capacity  the present  

petitioner can challenge the said Will.  The trial court held as under :  

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      “Herein  the  present  case  since  the  relationship  of  landlord  and  tenant  has  been  admitted  by  the  defendants.   The  plaintiffs  are   admittedly  co-owner of  the property in question,   they  are  entitled  to  maintain  the  suit  and  the   question  of  title  can be looked  into  incidentally.   This court is not required to investigate whether  the sale deeds executed by Smt. Sarvari Khatoon  and  Smt.  Raziaunnisa  Begum  were  forged  and  fictitious  and were  not  executed  by  real  Sarvari   Khatoon and Smt. Raziaunnisa Begum. This court   is  also  not  to  investigate  whether  Smt.  Jahida  Khatton has executed any Will of her share in the   property in favour of plaintiff no. 1.  The plaintiffs   are admittedly being the co-owner of the property,   it  is  immaterial  if  the  other  co-owners  have  transferred their share in their favour or not.  In   any case, the defendants cannot be said to be the   aggrieved person even if  it  is  presumed that the   said  sale  deed  or  gift  deed  were  executed  by   imposters.   The  real  such  lady  could  come  and  claim the relief and question the said transfer, but   nobody  else  has  a  right  to  question  the  same.   Even otherwise the adjudication whether the sale   deed or gift deed executed by them is without any   right or title, cannot be tried by the court of Small   Cause  and  this  can  only  be  investigated  by  a   competent court or original civil jurisdiction that   too  through a suit by aggrieved person e.g. real   Sarvari Khatoon, Raziaunnisa or Jahida Khatoon  and none else.”  

5. The trial court further held that it had no authority nor there was  

a  necessity  to  investigate  the  question  of  the  identity  of  Sarvari  

Khatoon and that if the petitioner is aggrieved by any alleged act of  

fraud by any party, he was free to approach the competent forum.

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6. Section  23  of  the  Provincial  Small  Cause  Courts  Act,  1887  

(hereinafter called as Act 1887) reads:

“23.  Return of  plaints  in suits  involving questions of   title-(1)  Notwithstanding  anything  in  the  foregoing   portion of this Act, when the right of a plaintiff and the  relief claimed by him in a Court of Small Cause 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.  

(2) xx xx xx xx       xx”

Thus,  it is evident from the above that the Small Cause Court  

cannot adjudicate upon the issue of title and, therefore, the trial Court  

has rightly refused to go into that issue and no fault can be found with  

the findings by the courts below in this regard. More so, as it has been  

an admitted fact that defendant Nos. 1 and 2 had been the tenants of  

the original plaintiffs, the question of title could not be adjudicated at  

the behest of the petitioner under any circumstance.   

7. While  dealing  with  the  provisions  of  Section 23 of  the  Act,  

1887,  this  Court in Budhu Mal v. Mahabir Prasad & Ors., AIR  

1998 SC 1772,  held as under:  

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“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 Cause in this behalf   could not be res judicata in a suit based on title.  It cannot, however, be gainsaid that in enacting S.   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.”

                                                               (Emphasis added)

8. Procedure adopted in trial of the case before the Small Cause  

Court is summary in nature.  Clause (35) of Schedule II to the Act  

1887,  made  the  Small  Cause  Court  a  court  of  limited  jurisdiction.  

Certain  suits  are  such  in  which  the  dispute  is  incapable  of  being  

decided in a summary manner. More so, the Small Cause Court does  

not  possess  exclusive  jurisdiction  as  its  jurisdiction  is  merely  

preferential. [Vide Ram Chandra Pandey v.  Maheshwari Singh &  

Ors.,  AIR  1962  All  480;  and  Manzurul  Haq  & Anr.  v.  Hakim  

Mohsin Ali, AIR 1970 All 604 (F.B.)]

9. Thus, it is evident that the finding on the issue of title recorded  

by  the  Small  Cause  Court  does  not  operate  as  res  judicata and  

ultimately  the  issue  of  title  has  to  be  adjudicated  upon  by  the  

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competent  civil  court.   This  view  also  stands  supported  by  the  

judgments of this Court in Dhulabai etc. v. State of M.P., AIR 1969  

SC 78;  Govt. of Andhra Pradesh v.  Thummala Krishna Rao &  

Anr.,  AIR  1982  SC  1081;  State  of  Tamil  Nadu  v.  Ramalinga  

Samigal  Madam, AIR  1986  SC  794;  and  State  of  Rajasthan  v.  

Harphool Singh (dead) thr. His Lrs., (2000) 5 SCC 652.  

10. We are of the considered opinion that  no illegality had been  

committed by the courts in refusing to frame an issue on that point  

and such a matter could not be investigated in proceedings before the  

Small Cause Court.   Shri Ram Prasad, original defendant No.1, who  

had entered into the contract of tenancy had died and his legal heirs, if  

any,  had  not  been impleaded as  parties  in  these  petitions.  Thus,  it  

raises a doubt regarding the maintainability of the petition itself.  

11. Paragraph 24 of the impugned judgment dated 23.7.2009 makes  

it  evident that the dispute was only regarding the arrears of rent and  

eviction. The case of  the tenants had been limited to the extent that  

they had not committed any default in payment of rent and no arrears  

had been due. Further, the validity of the notice under Section 106 of  

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TP Act was challenged and the District Judge, Dehradun, the Small  

Cause Court had no jurisdiction to entertain the suit and no other point  

was urged though in the revision petition large number of grounds had  

been taken.  

It is settled legal proposition that court is supposed to respond  

only to the issue agitated before it and in case at the time of hearing  

the issue was not taken the court cannot deal with it. (Vide  State of  

Maharashtra v.  Ramdas Shrinivas Nayak & Anr., AIR 1982 SC  

1249;  Abdul  Aziz  v.  State  of  W.B.  & Anr.,  (1995)  6  SCC  45;  

Transmission  Corporation  of  A.P.  Ltd.  &  Ors.  v.  P.  Surya  

Bhagavan, AIR 2003 SC 2182; and Mohd. Akram Ansari v. Chief  

Election Officer & Ors., (2008) 2 SCC 95).  

12. None of the persons against whom unsubstantiated, uncalled for  

and  unwarranted  allegations  have  been  made  has  been  impleaded.  

Thus,  such  allegations  cannot  be  entertained.  (Vide:  Dr.  J.N.  

Banavalikar v. Municipal Corporation of Delhi & Anr., AIR 1996  

SC 326; State of Bihar & Anr. v. P.P. Sharma, I.A.S. & Anr., AIR  

1991 SC 1260; I.K. Mishra v. Union of India & Ors., (1997) 6 SCC  

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228;  and  All  India  State  Bank  Officers’  Federation  &  Ors.  v.  

Union of India & Ors., (1997) 9 SCC 151).  

13. More  so,  this  Court  has  already  dealt  with  the  impugned  

judgment while deciding the SLP(C) No. 28029 of 2009 vide order  

dated 20.11.2009 and the impugned judgment has been upheld. In the  

said case, the present petitioner was also a party.  Entertaining this  

petition would amount to review of the earlier order dated 20.11.2009.  

The law does not permit two contradictory and inconsistent orders in  

the same case in respect of the same subject matter.

 14.    The petitions lack merit and are, accordingly, dismissed.    

                          ……… ……………………..J. (P. SATHASIVAM)                                          

……………………………..J. (Dr. B.S. CHAUHAN)

New Delhi, October  26, 2010

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