Skip to content


Ramkrishna Sitaram Vs. Haji Dawood Ismail - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 316 of 1906
Judge
Reported in(1907)9BOMLR208
AppellantRamkrishna Sitaram
RespondentHaji Dawood Ismail
Excerpt:
presidency small cause courts act (xv of 1882), section 38, ch. vii-suit-proceeding- power of the small cause court in the presidency town to order new trial.; the presidency small cause court cannot take action under section 38 of the presidency small couse courts act 1882 in reference to an order passed in a proceeding under chapter vii of the act. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated..........that court for the last two or three years.3. throughout the act a distinction is drawn between a suit and a proceeding (see e. g. sections 14, 69, 71, 72, 73, 74 and 76) and the language of the explanation to section 14, added by act 1 of 1895, section 6, assumes that a proceeding under chapter vii is not a suit, except so far as thereby expressly provided.4. in our opinion therefore a proceeding under chapter vii is not a suit within section 38. nor does the matter rest there: a proceeding under chapter vii results, not in a decree, but in an order, whereas under the explanation a suit shall be deemed to be contested in which the decree is made otherwise than by consent of, or in default of appearance by, the defendant.5. the condition therefore on which the small cause court can.....
Judgment:

Lawrence Jenkins, C.J.

1. The question arising on this rule is whether the Small Cause Court can take action under Section 38 of the Presidency Small Cause Act, 1882, in reference to an order passed in a proceeding under Chapter VII of that Act. Section 38 defines the condition on which the Small Cause Court has jurisdiction: it is 'where a suit has been contested, ' and according to the explanation to the section ' every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.'

2. In this ease the Full Court has held that the condition has not been satisfied and this is in accordance with the view that has prevailed in that Court for the last two or three years.

3. Throughout the Act a distinction is drawn between a suit and a proceeding (see e. g. Sections 14, 69, 71, 72, 73, 74 and 76) and the language of the explanation to Section 14, added by Act 1 of 1895, Section 6, assumes that a proceeding under Chapter VII is not a suit, except so far as thereby expressly provided.

4. In our opinion therefore a proceeding under Chapter VII is not a suit within Section 38. Nor does the matter rest there: a proceeding under Chapter VII results, not in a decree, but in an order, whereas under the explanation a suit shall be deemed to be contested in which the decree is made otherwise than by consent of, or in default of appearance by, the defendant.

5. The condition therefore on which the Small Cause Court can interfere under Section 38 docs not arise on a proceeding under Chapter VII. It may be that this leads to inconvenience and the language of Section 36 suggests that this consequence was not contemplated, that however does not justify a departure from the plain words of the Act. If the defect calls for a remedy, it must be otherwise than by a decision by the Court. For these reasons we hold that the Full Court rightly decided it had no jurisdiction and the rule must be, therefore, discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //