CRP No.250-54/2006 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + C.R.P. 250-54/2006 Date of decision : 03.03.2010 IN THE MATTER OF : SMT. CHANDER KALA & ORS. ..... Petitioners Through : Mr. K.K. Mehrotra, Adv. versus BANARASI DAS ..... Respondent Through : Mr. Jagjeet Singh, Adv. CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes HIMA KOHLI, J. (ORAL) 1. The present petition is directed against an order dated 23.5.2006 passed by the Judge Small Cause Court, in a suit for recovery of Rs.1,311/- filed by the petitioners (plaintiffs in the court below) claiming arrears of rent, with pendent lite and future interest @ 12% per annum, till realization and costs. By the impugned order, the aforesaid suit was dismissed as not maintainable by holding that there was no relationship of landlord and tenant between the parties and consequently, there was no question of any rent being payable by CRP No.250-54/2006 Page 2 of 5 the respondent (defendant in the court below). 2. The main ground urged by the counsel for the petitioners to assail the impugned order is that while passing the order, the court below went beyond the scope of the relief sought by the petitioners in the plaint, which was confined to the claim of payment of arrears of rent by the respondent. He submits that in his reply to the legal notice dated 28.2.2004, addressed by the petitioners, the respondent had stated that a sum of Rs.1,212/- had been sent towards the alleged arrears of rent and hence there was no dispute with regard to the payment, or the relationship of landlord and tenant between the parties. He submits that in these circumstances, the court ought not to have returned any contrary findings on the said issue as the said stand taken by the respondent/defendant was not in consonance with his reply to the legal notice. It is also stated that the issue of ownership of the subject premises was also not in controversy before the court below. 3. A perusal of the impugned order shows that the respondent/defendant did not dispute the receipt of notice issued by the petitioners/plaintiffs or the reply given thereto by him. The respondent/defendant also admitted that an amount of Rs.1,212/- was forwarded to the petitioners/plaintiffs by money order without prejudice to his rights, but the said money order was returned with a CRP No.250-54/2006 Page 3 of 5 report that nobody by the name of the petitioner No.1 was available in the premises. However, the respondent/defendant disputed the ownership of the petitioners/plaintiffs, in respect of the suit premises and claimed that he had become the owner thereof by adverse possession. 4. Section 15 of the Provincial Small Cause Courts Act, 1887 prohibits the Court of Small Causes to take cognizance of the suits specified in the Second Schedule, which includes a suit for determination or enforcement of any other right to or interest in an immovable property. Hence, the plea of adverse possession, though raised by the respondent/defendant, could not have been gone into by the court below. Further, Section 23 of the Act vests a discretion in the Court of Small Causes to return the plaint in appropriate cases where intricate questions of title might have to be decided, for being presented to a Court having jurisdiction to determine the title. 5. A perusal of the impugned order shows that no issues were framed before the matter was taken to trial. Counsels for the parties also confirm the said position. The entire object of framing of issues under Order XIV Rule 1 of CPC is to ascertain the material propositions of fact or of law on which the parties are at variance so as to determine the scope of trial, narrow down the area of conflict and confine the evidence to the matters in controversy between the CRP No.250-54/2006 Page 4 of 5 parties. [Refer: Makhan Lal Bangal vs. Manas Bhunia reported as (2001) 2 SCC 652]. Section 17 of the Act makes the procedure prescribed in the Code of Civil Procedure, applicable to proceedings filed in the Court of Small Causes. Therefore, nothing prohibits the said court from framing issues on contentious issues.(Refer: Central India Motors, Bhopal vs. G.P. Shrivastava & Anr. reported as AIR 1956 Bhopal 9). In fact, framing of issues narrows down the points in dispute to be determined in the suit. 6. Counsel for the petitioners states that due to bonafide inadvertence, on their part, the petitioners filed a wrong rent deed before the court below, which pertained to three rooms in the subject premises let out to a third party, and as a result of which, the impugned order came to be passed. He requests that the matter be remanded back to the trial court with permission to the petitioners to place on the record the correct rent deed, carbon duplicate copy of which has now been enclosed with CM No.11744/2006. 7. In view of the fact that the aforesaid document is essential for the court below to determine the point in controversy in the suit and considering the submission of the counsel for the petitioners that on account of bonafide error on their part, the said document was not filed and instead, a wrong rent deed, which did not pertain to the subject premises, came to be filed, the present revision petition is CRP No.250-54/2006 Page 5 of 5 disposed of by setting aside the impugned judgment and remanding the matter back to the concerned court. The petitioners are permitted to place on record the rent deed dated 8.6.1990. Admission/denial of the said document shall be undertaken and thereafter, if considered necessary, the court shall frame relevant issues for determination of the suit. 8. Considering the fact that the impugned judgment came to be passed on account of an error on the part of the petitioners, they shall pay litigation costs of Rs.10,000/- to the respondent within two weeks and in any case on or before the next date of hearing fixed before the Judge Small Cause Court . The present petition is disposed of. 9. The parties shall appear before the concerned Court on 5th April, 2010 for further proceedings. Trial court record be released by the Registry. 10. A copy of this order be forwarded forthwith to the concerned court for perusal and compliance. (HIMA KOHLI) JUDGE MARCH 03, 2010 sk