vil Appeal Nos 1271 and 1272 of 1978
From the Judgment and Order dated 1841978 of the Allahabad High Court in Civil Revision Nos 161 and 163 of 1975
GL Sanghi KB Rohtagi and Praveen Jain for the Appellants
Satish Chandra Aggarwal SK Dhingra Pramod Swarup SK Mehta and Aman Vachhar for the Respondents
The Judgment of the Court was delivered by OJHA J
These appeals by special leave have been preferred by tenants of certain premises against the judgment of the Allahabad High Court dismissing their civil revisions
The facts in a nutshell necessary for the decision of these appeals are that one Mahabir Prasad had let out the PG NO 240 premises in question to the appellants
It appears that on 28th November 1966 Sukmal Chand alias Lalloo son of Mahabir Prasad was murdered leaving Smt
Sulochna Devi as his widow and two sons Sanjeev Kumar alias Teetu aged 1 12 years and Rajeev Kumar alias Cookoo aged 3 years
Mahabir Prasad on 8th December 1966 executed a registered deed with regard to certain properties including the premises in question which he described as his own by using the words out of my property
The nature of the deed would appear from the following recital contained therein I give the benefits arising out of the above said property to my grand sons Rajeev Kumar alias Cookoo aged 3 years and Sanjeev Kumar alias Teetu aged 1 12 years So Sukmal Chand and Guardian Smt
Sulochna Devi mother of the children residents of Town Sardhana
Therefore Smt
Sulochna Devi will be able to maintain herself and her born and unborn children from the rent realized from the above said three shops and she will use the house as her residence and with her I and my wife Sunheri Devi will live throughout life
Sulochna Devi will neither be able to transfer these shops and house nor to mortgage them by borrowing money
She will have the right to maintain her children only with the benefit arising from them
I will neither interfere with her right nor transfer the ownership of this property
Hence this Parivarik Vayawastha Patra ie family settlement has been scribed
dated 8 December
 It further appears that after executing the said deed Mahabir Prasad informed the tenants concerned to make payment of rent to Smt
Sulochna Devi in terms of the aforesaid deed and the tenants started paying rent accordingly
Mahabir Prasad however subsequently executed a deed of cancellation dated 3rd November 1970
This deed too was registered and Mahabir Prasad thereby purported to cancel the deed dated t3th December 1966 for reasons stated therein
In this deed Mahabir Prasad inter alia stated that by the deed dated 8th December 1966 written in favour of Sanjeev Kumar alias Teetu and Rajeev Kumar alias Cookoo guardian Smt
Sulochna Devi mother had been given the right to realise rent and that the deed of cancellation debarred them from the right to realising the rent
The tenants were informed about the deed of cancellation also
PG NO 241 Subsequently suits were instituted by Mahabir Prasad against the appellants for recovery of arrears of rent etc
and their eviction from the premises in their tenancy on the ground that notwithstanding being informed of the deed of cancellation they had not paid rent to him and were in arrears
One of the pleas raised in defence by the appellants was that the deed dated 8th December 1966 could not be unilaterally cancelled by Mahabir Prasad by the subsequent deed dated 3rd November 1970 and that the rent claimed by Mahabir Prasad to be in arrears had already been paid by them to Smt
Sulochna Devi
In other words title of Mahabir Prasad to realise rent from the appellants was disputed by them
Sulochna Devi was also arrayed as a defendant in these suits
She seems to have filed a written statement acknowleding receipt of rent claimed by Mahabir Prasad as arrears from the appellants
The pleas raised by
the appellants in their defence did not find favour with the Judge Small Causes in whose court the suits were filed and consequently the suits were decreed
The appellants filed revisions before the District Judge and on these revisions being dismissed the appellants filed further revisions before the High Court which too were dismissed
It is against these judgments of the High Court that these appeals have been preferred
With regard to the deed dated 8th December 1966 it has been held that by the said deed only a permission bad been granted by Mahabir Prasad to Smt
Sulochna Devi to realise rent and to maintain herself and her two children and that it did not amount to a transfer of immovable property in favour of Smt
Sulochna Devi
It has further been held that in this view of the matter Mahabir Prasad was competent to revoke the permission granted to Smt
Sulochna Devi
The other plea that the suit involved a question of title and consequently was not cognizable by a court of small causes also did not as a consequence of the aforesaid finding find favour with the courts below
It has been urged by learned counsel for the appellants that by the deed dated 8th December 1966 the right to rent and not only the right to realise the rent was transferred and this right was described in the deed by saying I give the benefits arising out of the abovesaid property
According to learned counsel benefits arising out of immovable property themselves partook the nature of immovable property and the said deed having been acted upon it was not open to Mahabir Prasad to unilaterally cancel the benefits conferred on Smt
Sulochna Devi and her sons by the subsequent deed
PG NO 242 Learned counsel appearing for the landlord on the other hand urged that the courts below have rightly interpreted the deed dated 3th December 1966 to be one which only granted the permission to realise rent and the plea raised by the tenants did not involve any question of title
Having heard learned counsel for the parties we are of the opinion that on the facts of the instant case the provisions of Section 23 of the Provincial Small Cause Courts Act hereinafter referred to as the Act are clearly attracted and the plaints of these cases ought to have been returned for presentation to a court having jurisdiction to determine the title
Section 23 reads as hereunder 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 Causes 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 When a Court returns a plaint under sub section 1 it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure  14 of 1982 and make such order with respect to costs as it deems just and the Court shall for the purposes of the Indian Limitation Act 1877 15 of 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction
With regard to the applicability of Section 23 aforesaid the High Court has taken the view that the said section gave a discretion to a court to return or not to return the plaint where a question of title is raised and did not debar it from deciding the suit
If in a particular case the Judge Small Causes did not exercise his discretion to return the plaint the said discretion could not be interfered with in a civil revision
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 PG NO 243 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 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 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 he revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December 1966
In that event it may not he possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter 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
In the result
both these appeals are allowed and the judgments and decrees of the courts below are set aside and the Judge Small Causes is directed to return the plaints of these two cases for presentation to the appropriate court as contemplated by Section 23 of the Act
The amount of rent which may have been deposited by the appellants in any of the courts below in these suits shall however
not be refunded to the appellants and shall be disbursed in accordance with the decision of the appropriate civil court
In case the dispute about title is settled by the parties amicably the aforesaid amount of rent can be disbursed in pursuance of such amicable settlement also
We further direct that the tenant appellants shall till the dispute PG NO 244 about title is decided or settled deposit rent of the premises in their tenancy regularly as contemplated by sub section 2 of Section 30 of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1977
In the circumstances of the case the parties shall bear their own costs throughout
SL Appeals allowed


Summary:
Section 142 of the enjoins the arbitrator or the umpire to give notice to the parties of filing of the award
Under clause b of Article 119 of the  the time for making an application for setting aside an award or getting an award remitted for reconsideration is thirty days from the date of service of the notice of the filing of the award
The award was filed in the court on 4th February 1977
The respondent affirmed an affidavit on 29th November 1977 to that effect and prayed that a notice be issued and served on the appellant
Thereafter a Master s Summons was taken out by the respondent on 10th January 1978 using the said affidavit as the ground for the prayers
On 4th February 1978 the appellant filed an affidavit stating that the award had been wrongly filed in the High Court and it should be taken off the file
On 3rd May 1978 an order was passed as prayed in the affidavit and the Master s Summons and on July 30 1981 a notice under section 142 of the Act was served on the appellant
The appellant applied for certified copy of the award on 18th August 1981 and received the same on lst September 1981
It made an application under section 30 of the Act on 8th September 1981 for setting aside of the award
The High Court held that the notice was served prior to 30th July 1981 and as such the application was barred by lapse of time
PG NO 232 Dismissing the appeal by special leave HELD In order to be effective both for the purpose of the judgment in terms of an award and for setting aside the award the award must be filed in the proper court
There must be service of notice or intimation or communication of the filing of the said award by the court to the parties
If all these factors are established or are present the mode of service of the notice would be irrelevant
It need not necessarily be in writing
If the substance is clear the form of the notice is irrelevant but the notice of award having been filed in the court is necessary
The filing in the court is necessary and the intimation thereof by the Registry of the court to the parties concerned is essential
Beyond this there is no statutory requirement of any technical nature under section 142 of the 
234D It is upon the date of service of such notice that the period of limitation begins and as at present under clause b of article 119 of the the limitation expires on the expiry of the thirty days of the service of that notice for an application for setting aside of the award
l236F In the instant case on 4th February 1978 an affidavit had been filed in the High Court stating on behalf of the appellant that the award had been wrongly filed in that Court
The appellant had therefore acknowledged that it had notice of the said filing communicated to it by the Court
The notice can thus be attributed to have been served on the appellant either on 3rd or 4th February I978 prior to 30th July 1981
If that is the position then the application for setting aside of the award was clearly barred by lapse of time
234C 236B H 237A Nilkantha Shidramappa Ningashetti vs Kashinath Somanna Ningashetti  Ors and Dewan Singh vs Champat Singh  Ors  referred to