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Civil Petition for Special Leave to Appeal No. 50‑D of 1970, decided on 12th June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 12th February 1970, in Civil Revision Case No. 834 of 1969).

-----S. 15, Second Sched., Arts. 4 & 11‑Jurisdiction‑Ejectment‑Small Cause' Court granting decree directing tenant to quit suit premises Subsequent observation of Court that if tenant did not vacate, land lord would be entitled to evict him and recover khas possession Would not make decree one for possession‑Such observation merely indicated what would happen in event of not obeying decree‑Matter really pertained to executing Court and not to Small Cause Court and order to vacate premises was alone sufficient‑Decree was, nonetheless, one for ejectment and within competence of Small Cause Court.

------S. 23 Plaint, return of‑Plaint involving question of title to immovable property‑Small Cause Court has discretion either to return or retain such plaint.

Ahmad Shah Khan v. Abul Barkat P L D 1960 Dacca 107 ref.

‑Practice and procedure‑Issue neither raised in trial Court nor in High Court‑Cannot be allowed to ha raised in Supreme Court.

M. Golam Hafiz, Senior Advocate Supreme Court instructed by S. S. Hoda, Advocate‑ on‑Record Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing : 12th June 1970.

‑This is a petition for special leave to appeal from a judgment of a learned Single Judge of the High Court of East Pakistan in a revision petition under section 25 of the Provincial Small Cause Courts Act, 1887.

The respondent herein claiming to have acquired the ownership of the property in dispute under a registered deed of lease (Exh. 4) executed in his favour, by the Shebait of a Debuttor Estate, sought to evict the petitioner there from, upon the allegation that he was a monthly tenant under the plaintiff who had defaulted in paying rents for a long time and had sub‑let a part of the premises without any permission of the plaintiff. A notice under section 106 of the Transfer Property Act had also been duly served upon him on the 11th of March 1967, to quit and vacate the premises by the end of the month of March 1967 but the defendant was not doing so.

The petitioner contested the suit and alleged that no relationship of landlord and tenant existed between him and the respondent. The suit premises, it was said, originally belonged to a Hindu Deity and the defendant had been possessing the same as a lessee under the Shebait of the Deity since 1951 on payment of rent, both to the Shebait as well as the Evacuee Property Management Committee in which the property sub sequently vested on the migration of the Shebait. The trial Court found that since the property in dispute had been made over to the respondent by a resolution of the Evacuee Property Management Committee, dated the 9th May 1962, the respondent had acquired title to the suit lands and was entitled to maintain the suit for ejectment of the petitioner. A decree for ejectment was accordingly passed.

It is from this decree that the petitioner came up in revision to the High Court where it was strenuously contended on his behalf that the Court of Small Causes could not try a suit for possession of immovable property or a question of title relating to immovable property. The High Court, after considering a number of decisions and the provisions of section 15 and Articles 4 and 11 of the Second Schedule to the Provincial Small Cause Courts Act, 1887, as amended by Ordinance No. LI of 1962, came to the conclusion that since the suit was a suit for the ejectment of a tenant, which no other Court or officer had exclusive jurisdiction to try, it was triable by a Court of Small Causes.

It also came to the conclusion that the Court of Small Causes had a discretion in the matter of adjudicating upon and deciding questions of title to immovable property under sub section (1) of section 23 of the Provincial Small Cause Courts Act, particularly, where the question was not of a complicated nature. In coming to this conclusion the learned Judge disagreed with the observations of another learned Single Judge of the High Court of East Pakistan in the case of Ahmad Shah Khan v. Abul Barkat (P L D 1960 Dacca 107) to the effect that a Small Causes Court "had got no business to go into the question of title except incidentally for the purposes of deciding the question raised in the suit which is absolutely necessary for the decision of the case." The appli cation was, accordingly, dismissed.

The petitioner now seeks special leave to appeal and he has urged the same points before us, and has strenuously Contended that possession of the premises could not have been ordered by the Court of Small Causes. On a reference to the order of the Court of Small Causes we find that it only granted a decree against the petitioner directing him to quit the suit premises within one month from date. The decree was, therefore, a decree for ejectment and not for possession. The subsequence observation to the effect that if the petitioner did not vacate the plaintiff in the suit, namely, the respondent, would he entitled, to evict him in accordance with law and recover khas session was merely an indication of what was to happen in t ire event of the defendant in the suit not obeying the decree This was a matter really for the executing Court and not for the Court of, Small Causes. It would have been sufficient for it to order the defendant to quit and vacate the premises.

As for his contention that the suit was not maintainable in the Court of Small Causes, we find no substance. We are in agreement with the High Court that the suit was maintainable. We are also in agreement with the High Court that under section 23 of the Small Cause Courts Act there is a discretion a in the Court of Small Causes to return or not to return a plaint where a question of title to immovable property is raised.

Learned counsel appearing for the petitioner then sought to contend that the High Court had admitted additional evidence, namely an annexure to a supplementary affidavit-in-opposition field in the High Court, but on a perusal of the judgment of the High Court we are not in a position to agree that the High Court had admitted any additional evidence. It looked up this annexure as a fact which further confirmed the finding of tire Court of Small Causes with regard to the title of the respondent.

The learned counsel lastly urged that the Courts below had not decided whether the relationship of landlord and tenant existed between the respondent but since no such issue was raised in the trial Court nor was the question raised in they High Court it cannot be allowed to be raised for the first time this Court.

No substantial question of law arises in this petition. This petition is, accordingly, dismissed.

Petition dismissed.

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