NIRMJAL JEET SINGH HOONversusIRTIZA HUSSAIN AND ORS.

               (2010] 14 (ADDL.) S.C.R. 109


               NIRMJAL JEET SINGH HOON                           A
                              v.
                IRTIZA HUSSAIN AND ORS.
    (Special Leave Petition (Civil) No.30648-51 of 2010)
                    OCTOBER 26, 2010
                                                                 8
    (P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

       Rent Control - UP. Urban Buildings (Regulation of
 Letting, Rent and Eviction) Act, 1972 - s. 21 (1 )(a) -
 Respondents- plaintiffs filed suit for ejectment and arrears of C
 rent on ground that the defendants had illegally sub-let the
 suit property to the petitioner; and had also refused to pay the
 amount due as rent - Trial court decreed the suit - High Court
 upheld the decree - Before Supreme Court, Petitioner-in-
 person kept his case limited to the issue of the transfer of the D
 suit property prior to the institution of the suit and contended
 that a thorough investigation was required against the Judge
 who decided the case - On appeal, held: One fails to
 understand how the petitioner could challenge the transfer, if
 he has no title in the suit property - The Small Cause Court E
 cannot adjudicate upon the issue of title and, therefore, the
 trial court has rightly refused to go into that issue - More so,
 as admittedly defendant Nos. 1 and 2 were the tenants, the
question of title could not be adjudicated at the behest of the
petitioner undet any circumstance - Procedure adopted in trial F
 of the case before the Small Cause Court is summary in
 nature - The Small Cause Court does not possess exclusive
jurisdiction as its jurisdiction is merely preferential - Findings
on the issue of title recorded by the Small Cause Court do
not operate as res judicata and ultimately the issue of title has G
to be adjudicated upon by the competent civil court-, The
original defendant No. 1, who had entered into the contract of
tenancy had died ~nd his legal heirs, if any, had not been
impleaded as parties in this petition - Thus, it raises a doubt
                             109                                 H
    110    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A regarding the maintainability of the petition itself - None of
   the persons against whom unsubstantiated, uncalled for and
   unwarranted a/legations have been made h·as been
  impleaded - Thus, such a/legations cannot be entertained -
   More so, this Court has already dealt with the impugned
B judgment while deciding a SLP 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 said earlier order - The law does not permit two
   contradictory and inconsistent orders in the same case in
c respect of the same subject matter - The petitions lack merit
   and are, accordingly, dismissed -Provincial Small Cause
   Courts Act, 1887- s.23 and Schedule II, Clause 35- Transfer
  of Property Act, 1882 -s. 106.

          Practice and Procedure:
D
        Multiple proceedings - After dismissal of SLP against
  same order and involving same subject matter, another SLP
  filed by a person who was a party in the earlier petition - Held:
  Entertaining the instant petition would amount to review of the
E earlier order - The law does not permit two contradictory and
  inconsistent orders in the same case in respect of the same
  subject matter.

      Budhu Mal v. Mahabir Prasad & Ors. AIR 1998 SC 1772
  ; Ram Chandra Pandey v. Maheshwari Singh & Ors. AIR
F 1962 All 480; Manzurul Haq & Anr. v. Hakim Mohsin Ali AIR
  1970 All 604 (F.B.); Dhulabai etc. v. State of MP. 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; State of Rajasthan v.
G Harphool Singh (dead) thr. His Lrs. (2000) 5 SCC 652;
  Maharashtra v. Ramdas Shrinivas Nayak & Anr. AIR 1982
  SC 1249; Abdul Aziz v. State of WB. & Anr. (1995) 6 SCC
  45; Transmission Corporation of A.P. Ltd. & Ors. v. P. Surya
  Bhagavan AIR 2003 SC 2182; Mohd. Akram Ansari v. Chief
H
  NIRMJAL JEET SINGH HOON v. IRTIZA HUSSAIN              111
                  AND ORS.
Election Officer & Ors. (2008) 2 SCC 95; Dr. J.N. Banavalikar   A
v. Municipal Corporation of Delhi & Anr. AIR 1996 SC 326;
State of Bihar & Anr. v. P.P. Sharma, l.A.S. & Anr. AIR 1991
SC 1260; l.K.· Mishra v. Union of India & Ors. (1997) 6 SCC
228 and All India State Bank Officers' Federation & Ors. v.
Union of India & Ors. (1997) 9 SCC 151 - relied on.             B
                    Case Law Reference:
    AIR 1998 SC 1772         relied on             Para 7
    AIR 1962 All 480         relied on             Para 8
                                                                c
    AIR 1970 All 604 (F.B) relied on               Para 8
    AIR 1969 SC 78           relied on             Para 9
    AIR 1982 SC 1081         relied on             Para 9
                                                                D
    AIR 1986 SC 794          relied on             Para 9
    (2000) 5 sec 652         relied on             Para 9
    AIR 1982 SC 1249         relied on             Para 11
    (1995) 6 sec 45          relied on             Para 11      E
    AIR 2003 SC 2182         relied on             Para 11
    (2008) 2 sec 95          relied on             Para 11
    AIR 1996 SC 326          relied on             Para 12      F
    AIR 1991 SC 1260         relied on             Para 12
    (1997) 6 sec 228         relied on             Para 12
    (1997) 9 sec 151         relied on             Para 12
                                                                G
    CIVIL APPELLATE JURISDICTION : SLP (Civil) Nos.
30648-30651 of 2010.

    From the Judgment & Order dated 23~7.2009 of the High
Court of Uttarakhand at Nainital in Civil Revision No. 48 of
                                                                H
    112    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   2008, order dated 02.09.2009 in Review Application No. 633
    of 2009, order dated 18.3.2010 in Recalling Application No.
    MCC No. 711 of 2009 and order dated 23.4.2010 in
    Reconsideration Application No. 262 of 2010.

B         Nimal Jeet Singh Hoon, Petitioner-In-Person.

          The Order of the Court was delivered by

                                ORDER

C         DR. S.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
D   as follows:

          (A) lrtiza 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
E
          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
          above-mentioned case which was Suit for ejectment and
          arrears of rent filed by the respondents/plaintiffs. The case
F         of the plaintiffs/respondents was that defendant no. 1,
          namely, Shri Ram Prasad (dead-nothing on record to
          show as tb whether his legal heirs had been substituted)
          and defendant no. 2, namely, Mis United Hotels Pvt. Ltd.,
          had illegally sub-let the suit property to the petitioner; and
G         defendants had also refused to pay the amount due as rent
          and they should, therefore, be evicted from the suit
          property.

          (8) Smt. Sarvari Khatoon, Plaintiff no. 4 in Small Cause
H
NIRMJAL JEET SINGH HOON v. IRTIZA HUSSAIN                  113
     AND ORS. [DR. B.S. CHAUHAN, J.]

 Case No. 41 of 1974 died during the pendency of the Suit         A
 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      8
 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      C
 statement, he submitted that no proper notice under
 Section 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   D
 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            E
 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       F
 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                 G
 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 Court confined         H
    114     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         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
B         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
c         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
D       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
E       of the High Court. The issues were dealt with by the High
      · Court and it observed 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.
F         (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.
G
          (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
H
    NIRMJAL JEET SINGH HOON v. IRTIZA HUSSAIN                     115
         AND ORS. [DR. B.S. CHAUHAN, J.]
  unsubstantiated allegations against the Hon'ble Chief Justice          A
  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   B
  Suit and his only submission is that such 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,           c
  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
                                                                         0
  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      E
    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       F
•·· 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 :

            "Herein the present case since the relationship of           G
      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
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    116    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         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
B         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
c         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
D
          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."

E       · 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.
F
        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
G         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
H         to a Court having jurisdiction to determine the title.
  NIRMJAL JEET SINGH HOON v. IRTIZA HUSSAIN                     117
       AND ORS. [DR. B.S. CHAUHAN, J.]
     ~)DDDDd                                                           A
      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       B
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         C
Act, 1887, this Court in Budhu Mal v. Mahabir Prasad & Ors.,
AIR 1998 SC 1772, held as under:

     "It is also true that in a suit instituted by the landlord against
     his tenant on the basis of contract of tenancy, a question D
     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
                                                                        E
     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        F
 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         G
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      H
    118   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A  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 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.
B 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 sec 652.

C      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
D 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
E 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 TP Act was
  challenged and the District Judge, Dehradun, the Small Cause
F 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
G 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 WB.
  & Anr., (1995) 6 SCC 45; Transmission Corporation of A.P.
  Ltd. & Ors. v. P. Surya Bhagavan, AIR 2003 SC 2182; and
H Mohd. Akram Ansari v. Chief Election Officer & Ors., (2008)
  NIRMJAL JEET SINGH HOON v. IRTIZA HUSSAIN                119
       AND ORS. [DR. 8.S. CHAUHAN, J.]
2 sec 95).                                                        A

     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     8
& Anr., AIR 1996 SC 326; State of Bihar & Anr. v. P.P.
Sharma, I.AS. &Anr., AIR 1991SC1260; l.K. Mishra v. Union
of India & Ors., (1997) 6 SCC 228; and All India State Bank
Officers' Federation & Ors. v. Union of India & Ors., (1997) 9
sec 151).                                                         c
     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   D
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,
                                                                  E
dismissed.

8.8.8.                                        SLP dismissed.