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The Digamber Parshwanath JaIn Mandir Vs. Valubai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1949 of 1958
Judge
Reported inAIR1961Bom221; (1961)63BOMLR58; ILR1961Bom214
ActsProvincial Small Cause Courts Act, 1887 - Sections 15, 15(2) and 16; Code of Civil Procedure (CPC), 1908 - Sections 100
AppellantThe Digamber Parshwanath JaIn Mandir
RespondentValubai
Appellant AdvocateV.B. Rege, Adv.
Respondent AdvocateS.B. Sukhtankar, Adv.
Excerpt:
provincial small cause courts act (ix of 1887), sections 15, 16 - suit filed in small causes court to recover amount not exceeding five hundred rupees -- suit registered and tried as a regular suit by consent of parties to suit -- decree passed in suit whether appealable to district court.;the plaintiff filed a suit to recover a sum of rs. 144 from the defendant in the small causes court at sholapur. later on, by a purshis signed by the pleaders of both the parties, the suit was registered and tried as a regular suit. on the question whether an appeal lay to the district court against the decree passed in the suit, it was contended that the suit was exclusively cognizable by the small causes court and that, therefore, no appeal lay under the provincial small cause courts act, 1887, from..........plaintiff and it was only on this particular clause in the compromise decree that in the present suit filed by the plaintiff reliance was placed for the purpose of seeking recovery of the amount of rs. 144/- which was alleged to have been recovered by the defendant in respect of that property. it was contended on behalf of the plaintiff that the compromise decree being only of a declaratory character was neither capable of specific performance nor capable of execution. all that the decree provided, according to the plaintiff, was that the plaintiff was entitled to recover the income from the defendant and that the defendant was entitled to recover the income from the property and hand it over to the plaintiff. the decree only recited rights and obligations of the parties in respect of.....
Judgment:

1. This is an application filed by the plaintiff against the order of the learned District Judge in an appeal filed by the defendant against the decree passed by the trial Court in favour of the plaintiff. The plaintiff who filed the suit to recover a sum of Rs. 144/- from the defendant alleged that under a compromise decree passed in a prior suit between the panics the defendant had made herself liable to pay over to the plaintiff all the income that was derived from the property in suit. The defendant, whose title to that property was declared in that compromise decree, resisted the plaintiff's suit on several grounds. The trial Court decided all the issues that were raised in the case in favour of the plaintiff and passed a decree for the amount that was claimed in the suit. It may be noted, however, that this suit was filed originally in the Small Causes Court at Sholapur, but later on by a Purshis signed by the pleaders of both the parties the suit was registered and tried as a regular suit. Against the decree passed by the trial Court an appeal was preferred by the defendant to the District Court at Sholapur. The learned Assistant Judge at Sholapur allowed the appeal and dismissed the plaintiffs suit with costs. It is against that order of the learned Assistant Judge that the present revision application has been filed by the plaintiff,

2. It was contended by Mr. Rege, the learned advocate for the plaintiff-applicant that the suit was exclusively cognizable by the Small Causes Court at Sholapur, that although by consent of parties it was registered and tried as a regular suit by the Court in exercise of its ordinary jurisdiction, the nature of the- suit remained the same, that is, the suit remained as a Small Cause suit and that no appeal lay under the provisions of the Provincial Small Cause Courts Act from a decree passed in a Small Cause suit and that, therefore, the decision of the learned Assistant Judge at Sholapur in appeal against the decision of the trial Court was illegal and void. On the other hand it was contended by the learned Advocate for the defendant, that the suit was not really one which was exclusively cognizable by the Small Causes Court in spite of the, fact that the only relief that was asked for was recovery of the sum of Rs. 144/-. but that it was a suit for specific performance of the agreement which was embodied in the compromise decree in the prior suit and that, therefore, under Clause 15 of the Second Schedule to the Provincial Small Cause Courts Act, the Small Causes Court had no jurisdiction to entertain the suit and that the suit could only be tried as a regular suit. In support of this-contention, the learned advocate for the defendant invited my attention to Section 15 of the Provincial Small Cause Courts Act which says that a Court of Small Causes shall not take cognisance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. Sub-section (2) of that section, however, provides that subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. Section 16 of that Act then provides that save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes 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 suit is triable. These two sections make it quite plain that subject to the exception specified in the Second Schedule to the Act, all suits of a civil nature of which the value docs not exceed five hundred rupees shall be cognizable by the Court of Small Causes and that such suits shall not he tried by any other Court which may have jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which those suits are triable. Clause 15 of the Second Schedule mentions a suit for specific performance or rescission of a contract as a suit which shall not be taken cognizance of by a Small Causes Court.

3. The question, therefore, in this case is as to whether the suit that was filed by the plaintiff is one for specific performance of any agreement or a suit the value of the subject-matter whereof docs not exceed Rs. 500/-. Now, apparently, the only relief that is claimed in the suit is recovery of Rs. 144/- being the amount of the income of the property to which the title of the defendant was declared in the compromise decree in the earlier suit alleged to have been recovered by the defendant during a certain period. It was alleged in the plaint that by the compromise decree that was passed in the earlier suit rights to the property and its income were declared. In other words, it was declared by the compromise decree that the defendant was entitled to recover the income or even sell the property if she so liked. On the other hand, it was declared by the same decree that the plaintiff was-entitled to the income of that property and, in the event of the property being sold by the defendant, the plaintiff was to be entitled to recover the entire sate proceeds, but the defendant at the same time had the option under that decree to hand over thesale proceeds to any charity. As a matter of clarification it was further stated in the decree that the defendant who was entitled to recover the income of the property should hand over that income to the plaintiff and it was only on this particular clause in the compromise decree that in the present suit filed by the plaintiff reliance was placed for the purpose of seeking recovery of the amount of Rs. 144/- which was alleged to have been recovered by the defendant in respect of that property. It was contended on behalf of the plaintiff that the compromise decree being only of a declaratory character was neither capable of specific performance nor capable of execution. All that the decree provided, according to the plaintiff, was that the plaintiff was entitled to recover the income from the defendant and that the defendant was entitled to recover the income from the property and hand it over to the plaintiff. The decree only recited rights and obligations of the parties in respect of the income of the property and that, therefore, such a declaratory decree was not capable of execution, nor could a suit for specific performance be filed for enforcing it. There is considerable force in this argument advanced by Mr. Rege, the learned Advocate for the plaintiff. The compromise decree, in my opinion, is only a declaratory decree declaring the rights of the parties not only to the property, but also to the income thereof, If, in accordance with the rights specified in that decree, any income was received by the defendant from the property and the plaintiff became entitled to recover it from the defendant, then the plaintiff, in my opinion, could not seek to recover that amount by executing the decree, but must necessarily file a suit for the purpose of recovering that amount and such a suit cannot be called a suit for specific performance of any agreement. The plaintiff has accordingly filed this suit for the recovery of this sum of Rs. 144/- being the income alleged to have been received by the defendant from the property in question and, in my opinion, the action of the plain-tiff in-filing this suit is perfectly legal and justified in law. The claim in suit, therefore, being less than Rs. 500/- in value, the suit, to my mind, was exclusively triable by the Court of Small Causes.

4. It was, however, contended on behalf of the defendant that by the Purshis submitted by both the parties the suit was registered and tried as a regular suit in exercise of the ordinary jurisdiction of the Court and that, therefore, the appeal against the decree passed in that suit to the District Court was perfectly competent. Mr. Rege, the learned advocate for the plaintiff, on the other hand, contended that a Small Cause suit which was essentially a Small Cause suit in its nature could not be treated as a regular suit in spite of the fact that it was registered as a regular suit and tried as such by a Court in exercise of its ordinary jurisdiction. He submitted that in spite of the fact that the present suit was registered by consent of parties as a regular suit and tried as such by the trial Court in exercise of its ordinary jurisdiction, the decree that was passed therein was one passed in a Small Cause suit and that, therefore, no appeal Jay to the District Court against that decree. In support of this contention Mr. Rege relied upon Narayan Raoji Banado v. Gangaram Ratanchand, 11 Bom LR 817. In that case a small canes suit was filed in theCourt of a Subordinate Judge who had Small Cause-Court powers. At the date when the suit was instituted the permanent incumbent of the office being on privilege leave, and the joint Subordinate Judge having no small cause powers, the suit was-registered as a regular suit, and on his return from leave, the Judge also tried it as a regular suit. It was contended that the suit notwithstanding its-mode of trial retained the character of small cause. It was held that the Subordinate Judge continued to be a judge with Small Cause Court powers during his absence on leave, and that the entering of the suit in the file of regular suits could not take it away from the category of small causes, nor could the fact that subsequently the Subordinate Judge tried the suit under his ordinary jurisdiction deprive it of its character as a small cause. In my opinion, the ratio of this case aptly applies to the facts of the present case, the only difference being that in the present case it was the consent of the parties to the suit that had led to the suit being registered and tried as a regular suit. The suit having been instituted as a small Cause suit and being exclusively cognizable by the Small Causes Court could not be regarded in the circumstances of the case as having changed its nature by reason of its having been registered and tried as a regular suit. It is admitted that no provision for an appeal against a decree passed in a small cause suit is made in the Provincial Small Cause Courts Act and that, therefore, if the decree in the present suit is regarded as a decree passed in a Small Cause Suit, the appeal against that decree which was filed in the District Court was entirely incompetent.

5. It was then contended on behalf of the defendant that the point was not taken before the District Court itself and it was too late in the day to raise that contention before this Court. As against this it was submitted by Mr. Rege, the learned advocate for the plaintiff, relying upon Certain authorities to which I will presently refer, that the question being one going to the root of the matter it could also be raised in this Court. In support of this submission, Mr, Rege relied upon 11 Bom LR 87 (Supra) and Abdur Rehman Pathan v. Bharma Budhya Pati 29 Bom LR 273 : AIR. 1927 Bom 663. These two cases, in my opinion, fully support the submission made by Mr. Rege. Even on general principles, the point as to jurisdiction which goes to the root of the matter can well be taken even in the highest Court of the land, because it is the duty of the higher Courts to see that none of the subordinate Courts exercises jurisdiction which the Legislature has not though fit to confer upon it. Accordingly, it seems to me that in this Case the suit that was filed by the plaintiff was cognizable only by the Court of Small Causes and, in the absence of any provision for an appeal against the decree passed in that suit by the Court, no appeal was competent to the District Court and, therefore the order passed by the learned District Judge in appeal must be set aside. In the result, the application succeeds and the Rule is made absolute.

6. As regards costs, however, it appears to me that in the peculiar Circumstances of this case the-fairest order that should be made is that each party should bear its own costs throughout. The orderof the trial Court shall be modified to the extent of costs.

7. Revision allowed.


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