Article 227 Petition Maintainable Against Small Causes Court's Refusal To Stay Suit Under Section 10 CPC: Allahabad High Court

The Allahabad High Court has held that an order rejecting an application under Section 10 read with Section 151 CPC, seeking stay of a suit pending before a Court of Small Causes, does not constitute a “case decided” within the meaning of Section 25 of the Provincial Small Cause Courts Act, 1887.

It held that since the revisional remedy under Section 25 was therefore not available, a petition under Article 227 of the Constitution against such an order was maintainable.

Section 25 of the Provincial Small Cause Courts Act, 1887 allows the High Court to revise a decree or order made in any case by a Court of Small Causes which has exercised a jurisdiction not vested in it, failed to exercise a jurisdiction so vested, or acted illegally or with material irregularity in exercise of its jurisdiction.

Section 10 CPC contains the rule of res sub judice, under which a later suit is to be stayed where the matter directly and substantially in issue in it is also directly and substantially in issue in an earlier proceeding.

Justice Dr. Yogendra Kumar Srivastava held,

“The rejection of the application under Section 10 read with Section 151 CPC, in the circumstances of the present case, merely permits the Small Cause Court proceedings to continue and does not constitute a determination of the substantive rights or liabilities of the parties. Such an order, therefore, cannot, merely because it has been passed upon a separately numbered interlocutory application, be treated as a “case decided” within the meaning of Section 25 of the Provincial Small Cause Courts Act.”

It held,

“The test cannot be whether the Court has passed an order upon an application; the relevant inquiry is whether the order amounts to a decision of the case, or of a matter having such adjudicatory character and consequence as to fall within the expression as used in Section 25.”

Respondent-plaintiffs instituted J.S.C.C. Suit No. 25 of 2016 before the Additional District and Sessions Judge, Court No. 2, Moradabad, seeking eviction of the petitioners and arrears of rent. They claimed ownership and landlordship on the strength of sale deeds dated 03.01.1992 and 07.01.1992, stated to have been executed by the then Mutawalli, Shamshul Hasan.

It was pleaded that the petitioners were inducted as tenants, defaulted in paying rent of Rs. 2,000/- per month from April 2007, and the tenancy was terminated by notice dated 25.07.2016 under Section 106 of the Transfer of Property Act.

In their written statement, the petitioners denied any relationship of landlord and tenant with the respondents. They pleaded that the property is Wakf property, they are tenants under the Wakf and its Managing Committee. It was submitted that the sale deeds are void, and that jurisdiction lies with the Wakf Tribunal under Sections 83 and 85 of the Wakf Act, 1995.

Seven issues were framed by the trial court on 21.05.2019. The petitioners thereafter sought sixteen additional issues, which were refused by order dated 09.10.2025. Their application under Section 10 read with Section 151 CPC, seeking stay during the pendency of Second Appeal No. 306 of 2018 in which the validity of the two sale deeds is involved, was rejected by order dated 07.03.2026. Both orders were challenged under Article 227.

The Court observed that a Full Bench in Ramrichpal Singh v. Dayanand Sarup had held that an order on an application under Section 10 CPC could constitute a “case decided”, but was examining the expression as it occurs in Section 115 CPC and not the special scheme applicable to Courts of Small Causes. It referred to Ramesh Chandra Sahu v. Subhash Chandra and Prakash Chandra v. Y.C.P. John, where orders on interrogatories and on reception of a document in evidence were each held not to be a “case decided”.

Refusing the stay, it held, merely permitted the suit to continue and concluded no question of title, Wakf character, landlordship, tenancy, default or eviction.

“If every determination made on an interlocutory application were to be regarded as a “case decided” merely because the Court has separately considered and disposed of the application, the special and expeditious character of Small Cause Court proceedings would be substantially diluted. The Court would be exposed to revisional challenges at successive stages of the proceeding, even though the determination in question may merely regulate the manner or sequence in which the suit is to proceed and may not finally determine any of the material controversies between the parties.”

The Court clarified that it was not deciding whether an order allowing an application under Section 10 CPC would fall within the expression.

On the refusal to frame additional issues, the Court held that Section 17 of the Provincial Small Cause Courts Act read with Order L Rule 1 CPC excludes the settlement of issues under Order XIV CPC, so a party cannot insist on every question in its pleadings being framed as a separate issue. Order XX Rule 4(1) CPC nevertheless requires the judgment to contain the points for determination and the decision on them.

“The statutory scheme consequently draws a clear distinction between dispensing with the formal mechanism of framing issues and dispensing with the adjudicatory obligation itself. The former is excluded; the latter is not.”

Relying on Raju Kashyap and 2 others v. Smt. Archana Jain and the Supreme Court's decision in Rameshwar Dayal v. Banda (Dead) through LRs, the Court held that the points for determination under Order XX Rule 4(1) are in substance the matters which would otherwise arise as issues under Order XIV. It held that sufficiency of the existing issues is to be assessed not by counting them but by whether they enable the Court to adjudicate the real controversy.

The trial court had therefore committed no jurisdictional error in declining to frame the sixteen issues, held the Court. But the rejection, the Court clarified, cannot be read as excluding the petitioners' pleas on the Wakf character of the property, the asserted tenancy under the Wakf, the landlord-tenant relationship and the jurisdiction of the Court of Small Causes, which must be decided at the stage of final adjudication if found material, whether or not separately numbered as issues.

On the stay, the Court held that the connection between the two proceedings could not be equated with identity of the matter directly and substantially in issue. The suit is for eviction and arrears of rent, while the litigation culminating in the second appeal concerns the validity and cancellation of the sale deeds. The second appeal had not been admitted and no interim order had been passed in it.

“The distinction between a matter which is directly and substantially in issue and a matter which may arise incidentally or collaterally has to be maintained. If the latter were sufficient to attract Section 10, the pendency of any proceeding concerning an antecedent transaction or document having some bearing upon the rights asserted in a subsequent suit could indefinitely arrest the subsequent proceedings.”

It held that Section 151 CPC could not be used to circumvent the requirements of Section 10, and that the petitioners' apprehension of an inconsistent finding could not substitute the statutory test.

Accordingly, the petition was dismissed. The Court directed the trial court to conclude the suit expeditiously, noting that it has remained pending since 2016, and clarified that the dismissal would not prejudice the rights or contentions of either party in the suit.