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Framroz Dosabhai Vs. Dalsukhbhai Fulchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Extrarodinary Application No. 115 of 1920
Judge
Reported inAIR1921Bom180; (1921)23BOMLR383; 61Ind.Cas.567
AppellantFramroz Dosabhai
RespondentDalsukhbhai Fulchand
Excerpt:
.....(xv of 1882), chap. vii-recovery of possession of immovable property-judgment-review of judgment-civil procedure code (act v of 1908), order xlvii, rule 1.;the presidency court of small causes has no jurisdiction to review its own decision passed in a proceeding under chapter vii of the presidency small causes court act 1882. - - however, it has not done so, and all that we can do is to give the best interpretation we can to the terms of section 48. i think that that section means that in the proceedings themselves under the chapter the provisions of the code shall apply as far as possible, that is to say, until an order is made granting or dismissing the application, and while any further proceedings which might become necessary in execution of the order are being taken. 2. we would..........for a review of his judgment on any of the grounds which appear in order xlvii, rull 1, of the civil procedure code, it has been said, and there seems to be some authority for the dictum, that every court has an inherent power to review its own decisions, but with regard to suits in the presidency small causes courts, the procedure for which is inscribed by the high court, the high court in making rules laying down what portions of the civil procedure code should apply to such suits directed that section 114 of the code which provides for review be omitted. it does not seem, however, that the high court made rules directing what portions of the civil procedure code should be applied to proceedings under chapter vii. nothing is said in rule 1 about such proceedings. that rule says.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an application by the defendants under Section 115 of the Civil Procedure Code asking the Court to exercise its discretionary powers with reference to an order made by the learned Second Judge upon an application made to him to review his decision in a proceeding under Chapter VII of the Presidency Small Causes Courts Act. It was held in Ramkriahna v. Haji Dawood : (1907)9BOMLR208 that an application under Chapter VII of the Presidency Small Causes Courts Act would not come within the operation of Section 38 of the Act, which provides in the case of suits, for applications which could be made by either party within eight days from the date of the decree or order in the suit for a new trial. It was held that a proceeding under Chapter VII was not a suit. The result is that Chapter VII stands by itself prescribing a summary method of procedure to enable owners of immoveable property to recover possession from their tenants. Section 49 prescribes that recovery of the possession of immoveable property under that Chapter should be no bar to the institution of a suit in the High Court for trying the title thereto. It was, therefore, intended to enable landlords to recover possession from their tenants by means of this procedure, and it must have been intended that orders made in proceedings under Chapter VII should be final. In any event unless the right of appeal against such order was especially given by the Act there would be no appeal from such an order. The question, however, in this application is whether, although there is no appeal against the order of the learned Second Judge, he had jurisdiction to entertain an application for a review of his judgment on any of the grounds which appear in Order XLVII, Rull 1, of the Civil Procedure Code, It has been said, and there seems to be some authority for the dictum, that every Court has an inherent power to review its own decisions, but with regard to suits in the Presidency Small Causes Courts, the procedure for which is inscribed by the High Court, the High Court in making rules laying down what portions of the Civil Procedure Code should apply to such suits directed that Section 114 of the Code which provides for review be omitted. It does not seem, however, that the High Court made rules directing what portions of the Civil Procedure Code should be applied to proceedings under Chapter VII. Nothing is said in Rule 1 about such proceedings. That rule says 'the portions of the Code of Civil Procedure, Act V of 1908, specified in the 1st column of the Schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the 2nd and 3rd columns of such Schedule extend and shall be applied to the Small Causes Court and the procedure prescribed thereby shall be the procedure followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Causes Courts Acts 1882 and 1885'. At that time the decision in Ramkrishna v. Haji Dawood : (1907)9BOMLR208 had been reported, and it seems certainly strange that the High Court should have omitted to lay down what portions of the Civil Procedure Code should apply to proceedings under Chapter VII which had been held not to be suits. One can only assume that their Lordships considered that Section 48 prescribed what procedure should be applied to proceedings under that Chapter and therefore no rule was necessary. That section says: 'In all proceedings under this Chapter, the Small Cause Court shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a Court of first instance by the Code of Civil Procedure'. The words ' as far as may be ' evidently refer to the summary nature of the proceedings which could be taken under the Chapter, while it seems that the words ' except as herein otherwise provided ' would include any rules made by the High Court under the provisions of Section 9(1), so that the High Court would have power to determine what portions of the Civil Procedure Code should apply to proceedings under Chapter VII. However, it has not done so, and all that we can do is to give the best interpretation we can to the terms of Section 48. I think that that section means that in the proceedings themselves under the Chapter the provisions of the Code shall apply as far as possible, that is to say, until an order is made granting or dismissing the application, and while any further proceedings which might become necessary in execution of the order are being taken. To go a step further, by stating that any other provisions of the code with regard to appeals or reviews apply, would not, I think, be warranted by, the words of the section. For there is no right or appeal under Chapter VII, and it would follow that any provisions in the Code which enable an aggrieved party to apply under certain conditions for review were not intended to be included in this section. I think it was intended that the decrees and orders of the Small Causes Courts should be final, except as laid down in the Act. The powers of the High Court to make rules would be subject to the provisions of the Act itself and I have no doubt that because it was laid down in Section 37 of the Act that every decree and order of the Small Causes Court in a suit shall be final and conclusive, except as provided by Chapter VI, the High Court refrained from making Section 114 of the Civil Procedure Code applicable to proceedings in suits in the Small Causes Court. I think, therefore, that the rule must be discharged with costs.

2. We would like, however, to draw the attention of the authorities to the inconsistent provisions of the Presidency Small Causes Courts Act in this respect. Under Section 14 'the Local Government may invest the Registrar with the powers of a Judge under this Act for the trial of suits in which the amount or value of the subject matter does not exceed Rs. 20'. The Explanation says : ' For the purposes of this section an application for possession under Section 41 (that is under Chapter VII), shall be deemed to be a suit.' Therefore the Registrar has power to make, if invested with the powers of a Judge, an order in a proceeding under Chapter VII, and under Section 36 'an order made by the Registrar in a proceeding is subject to the same provisions in regard to new trials as if made by a Judge of the Court'. That would appear to contemplate that an order made by a Judge under Chapter VII was subject to the provisions for new trials. It is absurd that a proceeding under Chapter VII if held before the Registrar should be deemed to be a suit but if held before a Judge should not be a suit. But in Ramkrishna v. Haji Dawood : (1907)9BOMLR208 it was held that in spite of the wording of Section 36 an order in such a proceeding made by a Judge cannot form the subject-matter of an application for a new trial. It is certainly desirable that this inconsistency should be remedied by legislation, and that it might be made clear whether or not it was intended by the Legislature that orders of the Presidency Small Causes Court in proceedings under Chapter VII should come within the provisions with regard to new trials and appeals in Chapter VI.

Fawcett, J.

3. I agree. We start first with the fact that under Section 8 of the Civil Procedure Code, Section 114, which deals with the power of review, is not extended to the Presidency Small Causes Court. Similarly, under Order LI, Order XLVII which deals with this power of review is not extended. In this respect the case differs from a Provincial Small Cause Court to which, under Section 7 of the Code and Order L, Section 114 and Order XLVII extend. Then I think an indication that this power of review is not deemed to be covered by the provisions of Section 48 is supplied by Section 69 of 1820 the Presidency Small Causes Courts Act. That section applies not only to suits but any proceeding under Chapter VII of the Act, and it provides that the Court in any proceeding, in which the or value of the subject matter exceeds Rs. 500, where any question arises upon which the Court entertains reasonable doubt, and either party so requires, then the Court can make a reference to the High Court. It would be quite unnecessary to confer that power, if Section 48 was intended to cover the powers of reference and review contained in Part VIII of the Civil Procedure Code, for, on the reasoning of the appellant's counsel, the power of reference contained in Section 113 and Order XLVI of the Code is conferred as part of the procedure prescribed for a Court of first instance by the Code of Civil Procedure under Section 48. A further consideration is that, although Section 37 does not in terms apply to an order under Section 43, because that is an order not in a suit but in a proceeding, yet the whole tenor of the Act is in favour of finality, and the Court should, therefore, be slow to hold that Section 48 was intended by the Legislature to contravene that principle, unless its plain wording shows that such a construction should be put upon its provisions. I think there is no such necessity in this case, and that the expression 'proceedings' under this Chapter should be construed as referring simply to the proceedings for the actual hearing of the case on its merits which are terminated by an order either refusing the application or granting possession. It is a further stage, and in reality a separate proceeding, when the Court after passing such an order is asked to review that order. I think, therefore, that the rule should be discharged with costs.


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