G.L. Chopra, J.
1. The only point of law involved and referred for decision of the Bench in these two petitions for revision (No. 392-D of 1954 and No. 537-D of 1958) is as follows:
"Whether in a suit, otherwise within the jurisdiction of a Court of Small Causes, the jurisdiction of such Court is ousted by the defendant raising the question of the fixation of standard rent according to the provisions of Act No. XXXVIII of 1952, because such a question cannot be decided and disposed of by a Court of Small Causes, and the course open to the Court of Small Causes is to return the plaint for presentation to a proper Court, which will of course be a Court under Act No. XXXVIII of 1952"?
(2) In C. R. No. 392-D of 1954, a suit for recovery of arrears of rent, Rs. 683/3/-, was instituted by the landlord in the Small Causes Court, Delhi, on 23rd December, 1953. One of the defence taken by the tenant was that the rent claimed was more than the standard rent and a prayer for the standard rent being fixed was made. The plea gave rise to an objection regarding jurisdiction of the Small Cause Court to hear and decide the suit. The objection found favour with Shri Nathu Ram Sharma, the Additional Judge, Small Cause Court, Delhi, and he consequently returned the plaint for being presented to a Court of competent jurisdiction. In the revision filed by the landlord, Mohar Singh J., although in an earlier case he had held the view that there was nothing in the provisions of the Delhi and Ajmer Rent Control Act (No. 38 of 1952), to oust the jurisdiction of the Court of Small Causes in such cases, considered the question to be of some general importance and referred it for decision by a larger Bench.
(3) In C. R. No. 537-D of 1958, the facts are almost identical, except that Mr. Om Parkash Saini, Additional Judge, Small Cause Court, Delhi, has, following the earlier decision of Mr. Justice Mohar Singh, rejected the tenant's objection regarding jurisdiction and passed a decree for Rs. 210/- in favour of the landlord and the petition in preferred by the tenant.
(4) According to Section 15 of the Provincial Small Cause Courts Act, (No. IX of 1887), all suits of a civil nature of which the value does not exceed five hundred rupees, or Rs. 1,000/- if so directed by the State Government, except those specified in the Second Schedule shall be cognisable by a Court of Small Causes. In Delhi the jurisdiction of the Court of Small Causes has been extend to Rs. 1,000/- by a Notification made by the State Government under sub-section (3) of Section 15.
(5) The Second Schedule contains the list of suits excepted from the cognizance of a Court of Small Causes. The only two articles relevant for out purposes in this Schedule are Articles 8 and 44. A suit for the recovery of house rent is provided as an exception to the general exemption created by Article 8 in respect of suits for the recovery of rent unless the Judge is specially authorised by the State Government. Article 44 relates to 'a suit the cognizance where of by a Court of Small Causes is barred by any enactment for the time being in forced'. Admittedly the present being suits for recovery of house rent and the amounts claimed being less than Rs. 1,000/-, they would be cognizable by the Court of Small Causes, Delhi, unless the cognizance thereof is barred by any other statute. Not only that, Section 16 further enjoins that such suits, save as expressly provided by any other enactment for the time being in force, shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suits are triable. The Section confers exclusive jurisdiction upon the Court of Small Causes to try the suits.
(6) The question then arises: Is there anything in the Delhi and Ajmer Rent Control Act, No. XXXVIII of 1952 (hereinafter to be referred to as the Act) which bars the cognizance of the suits by the Court of Small Causes. Certainly, no such bar is expressly provided under the Act. At the outset it may be observed that the Act is meant inter alia 'to provide for the control of rents and evictions'; the Act does not lay down the mode or manner in which 'the rents' are to be recovered by the landlord Suits for the recovery of rent shall have to be brought and would be cognizable by the Courts as provided by any other enactment. Section 4 of the Act exonerates the tenant from liability to pay to his landlord for the occupation of any premises, not withstanding any agreement to the contrary, any amount in excess of 'the standard rent of the premises". According to S. 5, no person is to claim or receive any rent in excess of 'the standard rent' notwithstanding any agreement to the contrary. Section 8 provides for the fixation of the standard rent by the Court 'on an application made to it for the purpose or in any suit or proceeding. Under S. 11 an application for fixation of standard rent may be presented by the landlord or tenant within six months of the commencement of the Act if the premises were let prior to such commencement, and in case of others within six months of the lease.
Section 2(i) defines 'standard rent'. The principles on which the standard rent is to be determined are set forth in the Second Schedule of the Act. According to para. 2 of the Second Schedule, the standard rent of premises let on after the 2nd day of June, 1944, so long as the standard rent is not fixed by the Rent Controller under the provisions of Act XIX of 1947 or by the Court under S. 8(1)(b) of the Act, shall be the rent at which the premises were first let.
(7) Section 33 of the Act deals with the jurisdiction of the Courts an reads:
"(1) Any Civil Court in the State of Delhi or Ajmer which has jurisdiction to hear and decide a suit for recovery of possession of any premises shall have jurisdiction to hear and decide any case under this Act relating to such premises if it has pecuniary jurisdiction and is otherwise competent to hear and decide such a case under any law for the time being in force.
(2) The value of any case under this Act, for the purposes of the pecuniary jurisdiction of the Court, shall be determined by the amount of rent which is or would be payable for a period of twelve months, calculated according to the highest amount claimed in the case:
Provided that in the case of any proceeding based on the certificate of the Controller under S. 28, such value shall be determined by the amount of rent which is or would be payable for a period of one month.
(3) If any question arises whether any suit, application or other proceeding is a case under this Act, the question shall be determined by the Court.
(4) For the purposes of this Chapter, a case under this Act, includes any suit, application or proceeding under this Act and also includes any claim or question arising out of this Act or any of its provision but does not include any proceeding which a Controller is empowered to decide under Chapter IV."
It means that all cases under the Act relating to any premises, including an application for fixation of standard rent or putting forth any claim or raising any question under any of the provisions of the Act, shall be heard and decided by a Civil Court having jurisdiction to hear and decide a suit for recovery of possession of such premises. By virtue of S. 38, the jurisdiction of all other Courts in such matters is excluded and 'the Court' for the purposes of the Act is none but the Court which can hear and decide a suit for recovery of possession.
(8) Now, let us apply the above principles deducible from the provisions of the Act to the case in hand. A suit for recovery of house rent up to Rs. 500/- or Rs. 1,000/-, as the case may be, is cognizable by a Court of Small Causes and by no other Court. If any standard rent in respect of the premises is already determined, as provided by the Act, the landlord shall not be entitled to recover and the tenant not liable to pay any amount more than that standard rent; still the suit to recover rent shall have to be heard and decided by the Court of Small Causes. Where no standard rent is so determined and no objection on that score is raised by the tenant, the suit for recovery of rent shall, of course, be cognizable by the Court of Small Causes.
Where no standard rent is so determined and the plea is raised, the Court of Small Causes in which the suit is instituted shall not be competent to go into the plea and determine the standard rent. There the provisions of the Act stop short; they go no further. The Act does nowhere lay down that the Court of Small Causes, which is not competent to try a case under the Act, shall, in such a case, be divested of the jurisdiction to proceed with the suit which as framed and instituted was within its exclusive jurisdiction. A provision in an enactment by which the jurisdiction of the ordinary Courts is taken away has to be strictly construed. The effect of S. 33 of the Act, in my view, is that the Court of Small Causes shall not be competent to hear and decide any plea raised or an application made under the Act. It does not amount to saying that the Court of Small Causes ceases to be competent to try the suit, which was within its exclusive jurisdiction, merely because of the plea raised or application made by the defendant.
(9) It is now well settled that the question whether a suit is or not a suit of small cause nature is to be determined from the nature of the claim as raised, without regard to the defence set up by the defendant: Samir Khan v. Basi Ram, AIR 1925 All 821; Dhanya v. Tanya, 32 Ind Cas 998: (AIR 1915 Nag 124); Deoki Rai v. Harakh Narayan Lal, AIR 1926 All 760 and Baru v. Niadar, AIR 1942 Lah 217 (FB). What the defence of the defendant in his written statement is or what attitude the defendant assumes with reference to the plaintiff's claim is really an irrelevant consideration in the determination of the question: Samu Asari v. Anachi Ammal, AIR 1926 Mad 37, Radhakishan Bania v. Motilal Bania, AIR 1933 Nag 82. It is not in the power of the defendant to oust the Court of the jurisdiction which it otherwise has by the mere raising of a defence. Where such a defence is raised, the Court of Small Causes ahs the power to enquire into it and determine it for the purposes of the suit which it has jurisdiction to try, unless, of course, the jurisdiction is barred by any other enactment.
(10) The question then arises whether in such a case the Court of Small Causes can or should return the plaint to be presented to a Court competent to deal with a case under the Act or proceed to decide the suit without reference to the defendant's claim under the Act, which the Court of Small Causes is not competent to determine. Under S. 23 of the Provincial Small Cause Courts Act, the Court of Small Causes is given the discretion to return a plaint only in one case, that is, where the right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine. The effect of S. 23 is to give jurisdiction to ordinary Courts to try the small cause suit as an ordinary suit, notwithstanding the provisions of S. 16 of that Act.
In other words, the effect of the Section is to remove any bar which might exist by reasons of S. 16 to the trial of a small cause suit by a Court of ordinary jurisdiction. The discretion to return the plaint cannot be exercised in any other case, and if that is wrongly exercised S. 23 will not have the effect of removing the bar created by S. 16. It follows that if the plaint is returned by the Court of Small Causes on a plea under the Act having been raised by the defendant, the Court competent to deal with a case under the Act may not be competent to grant the relief claimed by the plaintiff, because of the bar laid down y S. 16 of the Provincial Small Cause Courts, Act and because of thee being no provision in that connection in the Act.
(11) This anomaly would be all the more conspicuous under the Delhi Rent Control Act, 1958, which came into force on 9-2-1959, and repealed the Act, XXXVIII of 1952. In the said Act, the authority to determine the standard rent is vested in a special Tribunal, the Controller, appointed under that Act. The Controller is not authorised to hear and decide a suit for recovery of rent or to make any order in respect thereof. To whom thanes the plain to be presented, if the same is returned by the Court of Small Causes.
On the other hand, if the Court of Small Causes proceeds with the suit ignoring the plea taken by the defendant, which it is not competent to try, and passed a decree in favour of the plaintiff and that decree happens to be in excess of the amount fixed as standard rent by the competent Court or authority, to whom the defendant may be referred to approach, the tenant may apply for refund of the excess to the Court or the Controller as provided by S. 12 of the Act or S. 13 of the Delhi Rent Control Act, 1958.
(12) On behalf of the tenants it is submitted that the above course, if adopted, will lead to deprive a tenant of his right to claim the relief under S. 8(1)(b) of the Act by way of defence to a suit for recovery of rent, to which he would be entitled even though the period of limitation for an application for fixation of standard rent, as provided by S. 11 of the Act, may have expired.
That difficulty would not doubt arise in suits for recovery of rent instituted in and cognizable by a Court of Small Causes, although in a suit instituted in and cognizable by an ordinary Court, the tenant would be entitled to take up the plea in defence and get the relief provided under the Act. But there being nothing in the Act to oust the Court of Small Causes of its exclusive jurisdiction to hear and decide a suit for the recovery of house rent, the plain terms of law must be adhered to even at the risk of possible injustice in special causes or to particular litigants. The law has to be interpreted and applied as it is and in a manner as to be the least anomalous.
(13) Reference by analogy may advantageously be made to cases decided under S. 77(3) of the Se, as it stood prior to its amendment by the Punjab Act No. III of 1912 and the addition of the proviso to the Section. Section 77(3) gives a list of suits which shall be instituted in and heard and determined by Revenue Courts and further lays down that no other Courts and further lays down that no other Courts shall take cognizance of any such dispute or matter with respect to which any suit might be instituted. The Section, prior to its amendment in 1912, did not provide for the contingency of a plea under that Act having been taken in his written statement by the defendant.
Interpreting the Section a Full Bench of the Punjab Chief Court in Asa Nand v. Kura, 11 Pun Re 1895, arrived at the conclusion that a Civil Court is debarred by S. 77 of the Punjab Tenancy Act, 1887, from taking cognizance of an objection raised by the landlord by way of defence to a suit brought by the transferee that a transfer of his occupancy rights by a tenant was voidable at the instance of such landlord under S. 60 of the Act. In view of the hardship and apparent injustice that were to ensure, Rattigan J. again referred the matter to a larger Bench in Haji Muhammad Bakhsh v. Bhagwan Das, 76 Pun Re 1909.
The Full Bench of the six eminent Judges (Robertson J. dissenting) endorsed the view taken by the Court in the earlier decisions and held that no plea raised by a defendant, in reply to a civil claim can be entertained or taken cognizance of by a Civil Court (even incidentally), if that plea relates to any matter in respect of which such defendant would be entitled to bring a suit in a Revenue Court (vide S. 77(3) of the Punjab Tenancy Act, 1887), and that such pleas must be entirely ignored by a Civil Court, even if they go to the very root of the case. I have had the occasion to express my respectful agreement with this interpretation of S. 77(3) of the Punjab Tenancy Act in Niranjan Lal v. Siria, AIR 1953 Pepsu 107. It was because of the above decisions of the Punjab Chief Court that the following proviso was added to S. 77(3) by Act III of 1912:
"(i) Where in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a Revenue Court, Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by O. VII, R. 10, Civil Procedure Code, and return the plaint for presentation to Collector;
(ii) on the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000/- or the matter involved is of the nature mentioned in S. 77(3), First Group, of the Punjab Tenancy Act, 1887, and in other cases may send the suit to an Assistant Collector of the 1st grade for decision."
(14) In the absence of any such provision in the Act, the conclusion is obvious; answer to the question referred ought to be in the negative.
(15) The learned counsel for the tenants place his reliance on Ebrahim Saleji v. Abdulla Ali Reza, AIR 1951 Bom 294, and Babulal Bhuramal v. Nandram Shivram, AIR 1958 SC 677. They are decisions under a different statute and are of no assistance for determination of the point in question. Similarly, Bhagwan Singh v. Raghnath Sahai, AIR 1949 EP 44 and 1951 PLR 326 (sic), cited by the counsel, have no bearing on the facts of this case. An identical question was, however, involved in C. R. No. 278-D of 1955, D/- 1-12-1958 (Punj), and a contrary view was taken by a learned Judge of this Court.
In that case, Mr. Justice Bishan Narain regarded the plea of the tenant in his written statement as an application for fixation of standard rent and observed that the plea amounted to a case under the Act, and, as required by S. 33, could only be tried by a Civil Court and not by a Court of Small Causes. That is no doubt the correct position. But the learned Judge did not further go into the question whether such a plea in the written statement would oust the jurisdiction of the Court of Small Causes to hear and decide a suit as made out in the plaint, which it was otherwise competent to hear and decide. With the greatest respect I cannot convince myself to agree with the conclusion arrived at by the learned Judge.
(16) For all these reasons, I would answer the question in the negative. Since no other point is involved, C. R. No. 392-D of 1954 is accepted and the case sent back to the Court of Small Causes for decision in accordance with law and C. R. No. 537-D of 1958 is dismissed. In view of the point of law involved, I would leave the parties to bear their own costs in both the cases.
(17) A.N. Grover, J.
18. Reference answered.