Motilal Bhalla vs 1st Addl.District judge, lucknow and others

H. N. Tilhari, J.—This is landlord''s petition. The petitioner has filed this writ petition claiming issuance of writ of certiorari for quashing the judgment and order dated 29191 passed by 1 Additional District Judge, Lucknow, contained in annexure10 as well as judgment and order dated 81185 passed by I Additional District Judge, Lucknow, dismissing the revision as well as the plaintiffpetitioner''s review application and affirming the judgment and order dated 30981 passed by Judge Small Cause Court (Civil Judge, Malihabad) Lucknow, in S. C. C. Suit No. 1807 of 76. The facts of the case in brief are that the plaintiff filed the suit for recovery of Rs. 1499.55 with costs against the defendantopposite party no. 3 with the allegations to the effect that one Smt. Kalawati Devi was the owner of House no. 465, Malviya Nagar, Allahabad. According to plaintiff''s case her husband had died in 1969 and she became the owner of that property. Accordirg to the plaintiff''s case Smt Kalawati Devi, the owner of that house used to reside at Lucknow, in mohalla New Hyderabad since after the expiry of 40 days, period from the death of her husband. According to the plaintiffpetitioner''s case, in the first week of July, 1971 an agreement of lease between the parties was entered into with respect to the portion of House no. 465, Malviya Nagar, Allahabad. According to plaintiff the defendant had come to Lucknow in the last week of July, 1971 and the agreement of lease had been entered at Lucknow, whereunder the accommodation in dispute was let out to defendants on a monthly rental of Rs. 60/. According to the plaint case the agreement was made by the plaintiff on behalf of Smt. Kalawati and under that agreement it was also agreed as a term of lease that the rent of the accommodation will be payable and be paid regularly by the defendanttenantopposite party no. 3 at the residence of Smt. Kalawati or the plaintiff. The plaintiff further alleged that Suit. Kalawati died on 20776. The plaintiff pleaded that Shri Jagdish Kishore Bhalla, husband of Smt. Kalawati had executed a will giving all his property to Smt. Kalawati Devi and after her death the property was inherited by the plaintiff and that the plaintiffpetitioner did inherit the estate of Smt. Kalawati along with her assets. According to the plaintiff''s case defendant was irregular in payment of rent and that a sum of Rs. 1417/ remained outstanding against the defendant and that was the rent for the period from 11073 to Dec. 1975. According to plaintiff''s case defendant actually vacated the house in December, 1975. The plaintiff claimed Rs. 29.55 as electricity charges. The plaintiff alleged that the cause of action for filing the suit had accrued at Lucknow on account of defendant''s failure to pay the rent as aforesaid at Lucknow and so a decree for recovery of a sum of Rs. 1499.55 was claimed. The defendantopposite party filed the written statement taking the plea that the rate of rent was Rs. 25/ per month, and, as such, the entire rent on 311275 had been paid up though the building had been vacated on 41275. The defendant had admitted that the building was vacated prior to the filing of the suit. The defendant took the plea that the courts at Allahabad had jurisdiction to entertain the suit and that the court of Judge Small Causes, Lucknow had no jurisdiction and that no part of cause of action had accrued in favour of the plaintiff against the defendant within the territorial limits of jurisdiction of Judge, Small Causes Court, Lucknow. The defendant also challenged the right of plaintiff to file the suit. The trial court i. e. Civil Judge exercising the jurisdiction of Judge, Small Causes Court dismissed the suit on the basis of findings on issue no. 1. The finding recorded by the trial court on issue no. 1 was that the courts at Lucknow had no jurisdiction as the suit related to immovable property situate at Allahabad and further it held that the agreement of lease had taken place at Allahabad and not at

Lucknow. The court below took the view that immovable property was situated at Allahabad and as the defendant does not reside within the jurisdiction of Lucknow courts so courts at Lucknow had got no jurisdiction to entertain the suit. As regards the dispute regarding rate of rent the trial court recorded the finding against the plaintiff. The trial court held that the house was let out at a monthly rental of Rs. 25/ and not at the rate of Rs. 60/ per month. It also held that the plaintiff did not obtain the letter of administration or probate from competent court on the basis of the will executed by Jagdish Kishore Bhalla, the plaintiff had no right to file the suit. With these findings the trial court dismissed the plaintiff''s suit. Feeling aggrieved from the judgment and decree of the trial court the plaintiff filed revision under section 25 of the Provincial Small Cause Courts Act. The learned Additional District Judge agreed and affirmed the findings of the trial court on the question of jurisdiction that the defendant had taken house from Smt. Kalawati Devi on rent at Allahabad and had not come to Lucknow for making agreement with Smt. Kalawati Devi and that the property in suit is also situate at Allahabad so the Civil Judge at Lucknow had no jurisdiction. It has further held that as the defendants also do not reside at Lucknow so the Lucknow courts had no jurisdiction. The learned Additional District Judge also took the view that there was no illegality in the finding of the court below when it opined that without obtaining Probate or Letter of Administration on the basis of the will the suit could not be filed. As regards other findings about the rate of rent the revisional court took the view that those were findings of fact and the revisional court had no jurisdiction to interfere with those findings.

The plaintiff petitioner filed an application for review under Order 47 Rule 1 of the Code of Civil Procedure. The learned Additional District Judge rejected the review application filed by the plaintiffpetitioner and had taken the view that the conclusions arrived at by the court below as well as by it about the jurisdiction of the trial court to entertain the suit have been quite correct and they did not call for any review. Having felt aggrieved from the judgment and orders passed by oppositeparties 1 and 2 i. e. Judge, Small Causes Court (Civil Judge, Malihabad) Lucknow and that of I Additional District Judge, Lucknow, annexures5, 6 and 10, the plaintiff has come up before this Court under Article 226 of the Constitution of India, for the grant of writ of certiorari quashing the orders contained in annexures5, 6 and 10.

I have heard Shri S, K. Mehrotra assisted by Shri I. D. Shukla, Advocate for the petitioner at length. I have also heard Shri A. P. Singh Gaur, for the oppositeparties. Shri S. K. Mehrotra has urged before me that the finding of the court below, that it had no jurisdiction to entertain the suit which had been recorded by the trial court, has been vitiated by error of law. The plaintiff''s case has been that the agreement of lease had taken place between Smt. Kalawati acting through the plaintiffpetitioner and the tenantopposite party at Lucknow and thereunder it was one of the terms agreed upon that the rent would be payable and be paid at Lucknow regularly and as the rent was not paid the cause of action had accrued at Lucknow irrespective of the fact that the property leased out was situate at Allahabad. Shri Mehrolra submitted that no doubt the court below had recorded the finding on one aspect of the matter against the petitioner that the agreement of lease had been entered into not at Lucknow but at Allahabad i. e. in other words the court has recorded the finding to the effect that immovable property or the property leased did situate at Allahabad, no defendant has been residing at Lucknow, instead the defendant has been residing at Allahabad and thereafter at Mirzapur and that the agreement of lease was entered into at Allahabad, but the question of jurisdiction could not be decided on that basis simpliciter. There has been one more material question to be decided whether it was an agreed term of lease that the rent would be payable and be paid by the defendant to the landlord or to plaintiffpetitioner on her behalf at Lucknow or any where else, particularly, in view of the pleadings of the parties specially of the defendant in paragraph 7 of the written statement, according to which the defendant''s case as stated in the written statement has been that the arrangement for payment of rent with her was that she would be paid in cash if present at Allahabad otherwise rent would be deposited in the savings bank account of the plaintiff in the City Office of the Allahabad Bank at Allahabad and that if specifically requested, rent would be sent by moneyorder. Shri Mehrotra submitted that this question had to te decided first, provided the defendant had pressed his pleadings. Shri Mehrotra submitted that no issue was pressed nor did the defendant press for any issue challenging the plaint case. He submitted that there is no discussion about the defence plea of jurisdiction as regards this aspect of the matter. He submitted that this plea should be deemed to have been waived and if the defendant had waived this plea the plaintiff''s case to the effect that the rent would be payable and be paid at Lucknow stood admitted and if not admitted a finding ought to have been recorded before dismissing the suit or deciding the issue one way or the ether. Shri Mehrotra submitted that this was a glaring error of law which per se indicated that the decision of the trial court has not been in accordance with law and, therefore, there was a case for the Additional District Judge to have interfered with the order of the trial court in exercise of jurisdiction under section 25 of the Provincial Small Cause Courts Act which it did fail or illegally refused to exercise the same. Shri Mehrotra further submitted that the finding regarding agreement having taken place at Allahabad and not at Lucknow and that the said finding is also vitiated by error of law which resulted in the decision being ore which had been arrived at not in accordance with law and that the error, Shri Mehrotra submitted, has been to the effect that the learned trial court raised an adverse inference, expressed or impliedly from the nonproduction of Smt. kalawati Devi, aunt of the plaintiffpetitioner in the witness box who could not be produced. Shri Mehrotra submitted that in the plaint itself it had been averred that Smt. Kalawati Devi had died on 21776 and the suit had been filed on 261076. He further pointed out towards paragraph 4 of the written statement wherein it has been stated that the contents of paragraph 4 of the plaint had not been denied. In paragraph 4 of the plaint it has been stated that Smt. Kalawati Devi had died on 20776 and so Shri Mehrotra submitted that this is admitted fact. Shii Mehrotra submitted that the learned court below ignored this admitted pleading of the parties and while recording the finding had taken an adverse view against the plaintiff on wrong assumption that Smt. Kalawati Devi was alive and was not produced and if she would have been produced it might have gone against the plaintiff and this circumstance coupled with other circumstances in evidence and held that the agreement had not taken place at Lucknow but at Allahabad, and, as such, in recording the finding on the basis of an adverse presumption against the plaintiff under section 114 of the Evidence Act when it could not be raised in view of the fact that Smt. Kalawati Devi had already died, the trial court committed error of law and jurisdiction in raising the presumption against the plaintiff on the question as to the place of agreement and deciding this issue against the plaintiffpetitioner, thus he submitted that the finding on question of jurisdiction recorded by the court below is bad in law and when the finding on issue of jurisdiction was not in accordance with law the decision of both the courts below in entirety cannot be said to be in accordance with law. These are the only contentions that have been raised by the petitioner''s counsel and no other contention. 44 On behalf of oppositeparty no 3, Shri A. P. Singh Gaur submitted that the courts below had correctly held the suit to be not maintainable in the courts at Lucknow as neither any of the defendant did reside at Lucknow nor the immovable property or the house is situate at Lucknow as required by section 16 of the Code of Civil Procedure. Shri Gaur Contended that the suit was not cognizable by the courts at Lucknow and in any case it was not entertainable and cognizable by the courts at Lucknow. Shri Gaur further submitted that there is no doubt that the court had made an observation to the effect that Smt. Kalawati Devi had not been produced though she was alive in 1976 and if she would have been produced she could have thrown light on the matter and thereafter the plaintiff could have examined her along with witnesses, in such circumstances adverse presumption is being drawn, that there was no illegality in the finding that the agreement had been entered into at Allahabad as same has been arrived at after having considered the evidence and the material circumstances. It might be that alongwith other circumstances this circumstance might have also affected the mind of the court but that does not vitiate the finding on question of jurisdiction so he submitted that this is not a fit case for interference under Article 226 of the Constitution of India. One more contention has been raised by Shri Mehrotra that when the court had first found that it had got no jurisdiction to entertain the suit it could not and should not have proceeded to decide the suit on merits. As regards this last contention Shri A. P. Singh Gaur, counsel for the oppositeparty has very fairly submitted that what should have been done is that the court after having recorded the finding that the court had no jurisdiction instead of going into the merits of the case it ought to have ordered for the return of the plaint. Shri Gaur dealing with the last submission of Sri Mehrotra submitted that the trial court has recorded finding on issue no. 2 on merits against the plaintiffpetitioner and the learned counsel for the petitioner has not made any submission challenging the same. In this view of the matter, the interest of jpstice requires that the writ petition be dismissed.

I have given my due consideration to the contentions of the learned counsels for the parties. As regards the question of jurisdiction the trial court had framed issue no. 1 which reads as under :

"1. Whether the court had territorial jurisdiction to try the suit ?"

Learned counsel for the parties invited my attention to sections 16 and 20 of the Code. Section 16 of the Code reads as under:

Suits to be instituted where subject matter situate.Subject to the pecuniary or other limitations prescribed by any law, suits:

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation : In this section "property'' in (India)." means property situate

A. perusal of section 16 of the Cods per se shows that suits referred to in clause (a) to (f) of section 16 of the Code have got to be instituted in the Courts within the local limits of whose jurisdiction the property is situate. Suit for recovery of arrears of rent simpliciter specially does not appear to be mentioned in or covered by any of the clauses mentioned in section 16 of the Code i. e. clauses (a) to (f). Learned counsel for oppositeparty no. 3 earlier tried to invite my attention to clause (e) in order te contend that the courts at Lucknow had no jurisdiction but the courts at Allahabad had jurisdiction and that the trial court rightly held that the courts at Lucknow had no jurisdiction because the immovable property i e. house leased is situate at Allahabad. He submitted that clause (e) of section 16 of the Code may cover the present case. There is a difference between rent or arrears of rent and compensation for wrong to immovable property. The expression compensation is not synonymous with rent. The compensation as used in section 16 (e) of the Code relates to something or some act i. e. wrong or injury to immovable property caused by some illegal act of the defendant, so suit for compensation for wrong done to immovable property will not cover a suit for recovery of arrears of rent. Section 105 of the Transfer of Property Act defines lease, lessee, lessor and the expression "rent" and in accordance with that definition the rent is the premium agreed between lessor and the lessee payable by lessee to the lessor for the enjoyment or user of the property under a contract of lease and, therefore, the user under the lease cannot be said to be a wrong done to the immovable property, so a suit for recovery of arrears of rent cannot be termed as a suit for compensation for wrong and it will not be covered by section 16 (a) of the Code nor it can be said to be a suit covered by section 16 (f) of the Code or by expression for determination of any other right or interest to or in immovable property, as has been held by this Court in the case of Har Dayal Singh v. Ram Ujagar reported in (AIR 1955 All 416). The learned counsel for the oppositeparty referred to proviso to section 16 of the Code. A reading of the proviso will again indicate that suit for compensation for wrong to immovable property or a suit to obtain relief in respect of immovable property held by or on behalf of the defendant can be instituted in either of the courts where either the property is situate or the defendant actually and voluntarily resides, or carries on business or personally works for gain so proviso gives some relief to the plaintiff that he may file suit at two places instead of being required to file the suit at the place where the property is situate provided the conditions specified in the proviso are satisfied. Thus proviso to section 16(1) provides an exception enacting clause in section 16(1) of the Code itself and relaxed the rigor of the main enacting clause in respect of suits specified in proviso if other conditions mentioned therein do exist. It is well settled principle of law of interpretation that a proviso attached to section is of necessity limited in its operation to ambit of the section which it qualifies and so far as that section itself is concerned the proviso again receives restricted construction (Maxwell, Interpretation of Statute 12th Edn. P. 189).

The function of proviso is to except or deal with a case which would otherwise fall within general language of the main enactment and its effect is confined to that case. Crawford in ''Interpretation of Laws/Construction of Statutes dealing with function of proviso states :

"Some cases apparently ascribe three functions of a proviso :

(a) to exempt something from enacting clause ;

(b) to qualify or restrain its generality ; and

(c) to exclude some possible misinterpretation of it as extending to cases not intended by legislature. But the first function would be that of exception".

In respect of the matters ordinarily covered by the main section (see CrawfordConstruction of Statute S. 91).

Here when it is mentioned suits to obtain relief respecting immovable property the expression reference to the reliefs of the nature which are covered ordinarily by the main section. It has to be interpreted keeping in view the principle enshrined in and laid down in the main section by the legislature. So here the expression a suit to obtain relief respecting immovable property is to be taken to refer to a suit of the nature covered by either of the clauses (a) to (e) and the exception is being made that in case it fulfills other requisite conditions of the proviso a suit apart from being filed within whose territorial jurisdiction the property in dispute is situate, the plaintiff can file the suit instead of that place, in the court other than the court within the territorial jurisdiction of which the defendant or either of the defendant resides. In my opinion, section 16 of the Code by itself does net appear to cover the pure and simple suit for recovery of arrears of rent. Section 20 of the Code deals with other suit than these covered by sec. 16 or 17 of the Code. Section 20 of the Code reads as under :

"20. Other suits to be instituted where defendants reside or cause of action arises.Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain ; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such caseeither the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution ; or

(c) the cause of action, wholly or in part, arises.

ExplanationA corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

In accordance with section 20 of the Code a suit can be instituted in a court within the local limits of whose jurisdiction defendant or where there are more than one defendant each of the defendants at the time of the institution of the suit actually resides or any of the defendants in case the case is covered by clause (b) at the time of commencement of the suit actually and voluntarily resides or carries on business, or personally works for gain but with the leave of the court. Clause (c) provides that such suits can be filed even at a place where the cause of action for filing the suit has wholly or partly arisen. The present case is covered by section 20 (c) of the Code. The court had to consider whether the cause of action had either wholly or partly accrued to the plaintiff within its territorial jurisdiction or not in the light of the pleadings of the parties. When I so opine that if in a case for recovery of arrears of rent a cause of action is shown to have accrued at a place either wholly or partly within the local limits of the jurisdiction of a court where the defendants had been residing for the time being or not or the property is or is not situate, suit can be filed under section 20 (c) of the Code, I find support from the Division Bench decision of this Court reported in Har Dayal Singh & another v. Ram Ujagar (AIR 1955 Allahabad 416). In that case the Division Bench of this Court had taken the view that on account of lesseedefendant having agreed to pay the rent at the place where the plaintiff happened to be posted at any particular time the suit shall be instituted and be cognizable by the courts at Saharanpur i.e. the place of posting of the plaintiff and defendant having failed to pay the rent there. Keeping this principle in view I find that the trial court while deciding the question of jurisdiction had not applied its mind to the pleadings of the parties particularly the pleadings of the plaintiff contained in paragraph 3 of the plaint as well as para 7 of W. S. which read as under :

"3. That the agreement was made with the plaintiff on behalf of his aunt Srimati Kalavati Devi at'' Shanti Kuti'' 113, New Hyderabad, Lucknow7, and it was further agreed that the defendant will pay the rent regularly at the residence of Shrimati Kalvati Devi at Lucknow to the Plaintiff or to Shrimati Kalavati Devi.

The defendant denied the allegations of paragraph 3 of the plaint and he further pleaded in paragraph 7 of the written statement as under :

"7. That the contents of para 7 of the plaint are denied. The arrangement for payment of rent with her was that she would be paid in cash if present at Allahabad otherwise the rent would be deposited in the Savings Bank a/c of the plaintiff in the City Office of the Allahabad Bank at Allahabad and that if specially requested rent would be sent to the plaintiff by money order."

The pleadings of the parties indicate that there was a disputed question of fact to be determined before the question of jurisdiction could be decided and that was a necessary question to be decided whether the agreement about payment of rent at Lucknow i.e. that the payment of rent shall be made at Lucknow by the tenant had been entered into between plaintiff or Smt. Kalawati Devi on one side and the defendant on the other side or that the term of agreement regarding payment of rent was as had been pleaded by the defendant. The other issue that has arisen from the pleadings of defendant himself was whether did the plaintiff at any time make request that rent should be sent to plaintiff by money order, if defendant''s pleadings contained in paragraph 7 of the written statement was correct which was contained in earlier part of paragraph 7. A perusal of the judgment of the trial court per se indicates that the trial court had not applied its mind to this question and a decision on this question was necessary one way or the other as if the agreement pleaded by the plaintiff is correct and rent had to be paid at Lucknow by the defendant and the tenant did not pay then cause of action could be said to have arisen, might be in part and in that case the suit could be said to have been entertainable by the courts at Lucknow but if the defendant''s plea as contained in paragraph 7 of the written statement in totality is correct then no doubt in those circumstances read along with other findings of the court it could be said that no part of cause of action did arise at Lucknow cor did jurisdiction accrue to the court at Lucknow as the immovable property was situate at Allahabad and defendants were not residing at Lucknow and so the court at Lucknow has no jurisdiction. These were the material questions to be decided by the trial court before the trial court could record a finding on question of jurisdiction, so finding on question of jurisdiction, appears not to have been arrived at and one not having been recorded in accordance with law instead it has been arrived after ignoring the pleadings. Apart from that if the trial court had really found after considering this aspect of the matter that the trial court had no jurisdiction to entertain the suit for the reasons recorded by it the other question arises whether once is has come to the conclusion that it has no jurisdiction to entertain the suit and to proceed with the suit did it act according to law in proceeding to decide the suit on merits. Learned counsel for the defendant as mentioned earlier very fairly submitted that the proper course would have been for the trial court to have ordered for the return of the plaint instead of deciding on merits but his submission was that the defendant has not suffered any injury and his case has been decided on merits so there is no need to interfere. I am unable to accept the latter part this contention of the learned counsel for the oppositeparty. It is trite principle of law that a suit can only be tried by a court which had got jurisdiction to try but if the court finds that it has no jurisdiction to try and if it proceeds to record findings on other issues on merits the findings on those issues are illegal and without jurisdiction and the said findings can also be said to be vitiated by error of law or of jurisdiction of the court itself. The decision being not in accordance with law, as I have mentioned above, a case had made out by the petitioner under section 25 of the Provincial Small Cause Courts Act before the revisional court. The jurisdiction of the District Judge under section 25 of the Provincial Small Cause Courts Act is to see whether decision of the case has been arrived at by the trial court in accordance with law and if it has not been arrived at in accordance with law it is the bounden duty of the revisonal court to set aside that order. The concept of "according to law" has been explained as error of law touching the jurisdiction or error of substantial nature as a result of which the party against whom the decision has been given is going to suffer substantial loss. When a court of law takes the view that it has no jurisdiction or when a court of law takes a decision on a question after having ignored certain material be it material of pleading or evidence and if erroneously records findings and even gives decision against a party the party is bound to suffer when his claim is rejected illegally and unlawfully and, as such, the revisional court under section 25 of the Provincial Small Cause Courts is to set aside the decision of the trial court which is not in accordance with law. If the revisional court takes erroneous view as to the question whether the decision of the trial court has been in accordance with law or not one way or the other and then illegally either refuses to exercise the jurisdiction vested or illegally usurps the jurisdiction set vested, a case of jurisdictional error does arise with reference to the exercise of power or nonexercise of power by the revisional court or authority and when there is palpably a case of jurisdictional error and particularly when a court after recording its finding that it has no jurisdiction even then records a finding against one or the other party then the said findings substantially and materially effects the party and substantial injury is thereby caused or is likely to be caused thereby to them. In such circumstances the interest of justice and fairplay requires this court to exercise its jurisdiction under Article 226 of the Constitution of India. In the present case the order of learned I Additional District Judge suffers from jurisdictional error while refusing to exercise of jurisdiction vested in it under section 25 of the Provincial Small Cause Courts Act to interfere with the order of the trial court particularly when the judgment and order of the trial court also did suffer from jurisdictional error and error of law of substantial nature having got the tendency of causing injury and manifest error in the decision of the case. As such, it is a fit case, in my opinion, in which this court should exercise its jurisdiction under Article 226 of the Constitution of India.

Thus having considered, in my opinion, it is a fit case to grant the reliefs prayed for as the impugned order dated 30991 passed by oppositeparty no. 2, Judge Small Causes Court (Civil Judge Malihabad) Lucknow, in SCC Suit No. 18 7 of 76, order dated 81185 as well as order dated 29191 passed by I Additional District Judge, Lucknow require to be quashed. Therefore, I do hereby allow the writ petition, issue a writ of certiorari quashing the above mentioned judgment and orders passed by oppositeparties 1 and 2 i. e. annexure5, 6 and 10 to the writ petition. A further direction is issued to oppositeparty no. 2 i.e. Judge, Small Causes Court (Civil Judge Malihabad) to restore SCC Suit No. 1807 of 76 to its original number and to decide the same in accordance with law keeping in view the observations made by me in the earlier part of this judgment. Parties are to bear their own costs.