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R.S. Mahmood Vs. Syed Ahmed - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1538 of 1959
Judge
Reported inAIR1963AP65
ActsCode of Civil Procedure (CPC) , 1908 - Sections 213 to 221 - Order 18, Rules 5 and 10 to 18 - Order 50; Small Cause Courts Act - Sections 21; Hyderabad Small Cause Courts Act; Hyderabad Code of Civil Procedure (CPC) - Sections 218; Code of Civil Procedure (CPC) (Amendment) Act, 1951; State Re-organization Act, 1956 - Sections 120 and 127
AppellantR.S. Mahmood
RespondentSyed Ahmed
Appellant AdvocateK.V. Sarma, Adv.
Respondent AdvocateC. Narasimhacharya, Adv.
DispositionRevision Petition allowed
Excerpt:
civil - evidential value - order 18 rule 15 and order 50 of code of civil procedure, 1908 - recovery suit filed by respondent in court of small causes - chief judge hearing suit died - his successor starts trial - defendant requested case should be heard de novo - request refused - revision before high court under section 12 - whether it is competent for successor to act on notes of evidence recorded by predecessor - no provision which clothes small cause court judge with power to act on memorandum of evidence recorded by his predecessor - succeeding judge cannot start trial from stage at which it was left by his predecessor - held, trial to be started afresh. - .....1330 fasli). the schedule to that act inter alia recites:'the provisions of the hyderabad code of civil procedure no. iii of 1323f, as specified below shall not apply to courts of small causes and to the courts invested with the jurisdiction of a court of small causes. xxxxx 6. chapter xix, examination of witnesses, sections 213 to 221.' 4. we are told that sections 213 to 221 correspond to order 18, rules 5 and 10 to 18 c.p.c. 1908 enacted by the central legislature. the rule that is relevant for the present purpose is section 213 (order 18 rule 15 c.p.c., 1908). order 18, rule 15 c.p.c. reads:--'(1) where a judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the.....
Judgment:
ORDER

Chandra Reddi, C.J.

1. This revision petition is referred to a Bench by the late Ramachandra Rao J., as he felt that an authoritative ruling of a Division Bench was needed on the question whether notes of evidence recorded by ore Judge could be acted upon by his successor in office.

2. The facts leading up to the reference are in a short compass. The respondent laid an action in the Court of Small Causes, Hyderabad for recovery of a sum of Rs. 1,200/-. After the plaintiff adduced his evidence, the Chief Judge of the Court of Small Causes who was trying that cause, died. When his successor took up the trial of the case, the defendant put in a petition requesting that the case should be heard de novo. This request was refused and the trial Judge wanted to proceed with the trial of the suit from the stage at which it was left by his predecessor. Thereupon, the defendant filed the present revision under Section 12 of the Hyderabad Small Causes Courts Act.

3. The question raised by this petition is whether it is competent for the successor to act on the notes of evidence on the record although it was not recorded by him. The point under examination has to be determined with reference to the relevant provisions of the Hyderabad Small Cause Courts Act (VI of 1330 Fasli). The schedule to that Act inter alia recites:

'The provisions of the Hyderabad Code of Civil Procedure No. III of 1323F, as specified below shall not apply to Courts of Small Causes and to the Courts invested with the jurisdiction of a Court of Small Causes.

xxxxx

6. Chapter XIX, examination of witnesses, Sections 213 to 221.'

4. We are told that Sections 213 to 221 correspond to Order 18, rules 5 and 10 to 18 C.P.C. 1908 enacted by the Central Legislature. The rule that is relevant for the present purpose is section 213 (Order 18 Rule 15 C.P.C., 1908). Order 18, Rule 15 C.P.C. reads:--

'(1) Where a judge Is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his directions under the said rules and may proceed with the suit from the stage at which his predecessor left it.'

XX XX XX XX Xx

5. It is this rule that empowers the succeeding officer to make use of the evidence or memorandum taken down by his predecessor. Order 50 C.P.C. excludes the applicability of certain provisions of the Civil Procedure Code to Courts constituted under the Provincial Small Cause Courts Act, 1887 or to courts exercising jurisdiction of a Court or Small Causes under the said Act or to Courts In Part B States exercising the corresponding jurisdiction. This order specifies among oilier things that 0. 18, Rules 5 to 12 (evidence) do not extend to Courts exercising Small Cause jurisdiction. But Order 18, Rule 15 C.P.C. is not one of the rules that fell within the ambit of Order 50. Excluding the provisions that are set out in Order 50 C.P.C., the rest of the Code would govern the procedure to be adopted by the Courts of Small Causes. Consequently, Order 13, rule 15 C.P.C. which is not within the ambit of Order 50, would apply to Small cause Courts. As already remarked, Sections 213 to 221 of the Hyderabad Code of Civil Procedure No. Ill of 1323F. were not made applicable to Courts of small causes by reason of schedule to the Hyderabad Small Cause Courts Act (VI of 3330 Fasli).

6. It has to be mentioned here that there was no provision in the Hyderabad Civil Procedure Code similar to Order 50 C.P.C. of 1908. Therefore, there was no repugnancy between Section 21 of the Hyderabad Small Cause Courts Act (VI of 1330 Fasli) and the provisions of the Hyderabad Civil Procedure Code.

The situation was altered by extending the provisions of the Civil Procedure Code, 1908 to Part B States by the Code of Civil Procedure (Amendment) Act II of 1951 with effect from 1-4-1951, as a consequence of which. Order 50 C.P.C. of 1908 became applicable to the Courts in the Hyderabad State. After that date, the position was this. While all the provisions of the Civil Procedure Code including Order 18, R. 15 barring those listed in 0. 50 C.P.C. are attracted to the trial of causes in the Courts of Small Causes in the Telangana area, the schedule to the Hyderabad Small Cause Courts Act, which excluded the applicability of some of the sections including that rule, remained intact, with the result that there was repugnancy between the provisions of the Hyderabad Small Cause Court Act and the provisions of the Civil Procedure Code which existed side by side. This state of things continued till Andhra Pradesh in which was merged that part of the erstwhile Hyderabad State known as Telangana came to be inaugurated on 1-11-1956.

7. After the formation of the Andhra Pradesh, the Government in exercise of the powers conferred on them under Section 120 of the States Re-organization Act, 1956, amended the relevant provisions of the schedule by way of adaptation by substituting Order 18, Rule 5 and Rules 10 to 18 for Sections 213 to 221. Section 120 of the States Re-organisation Act, 1956 runs as follows:--

'For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day by order make such adaptations and modifications of the law, whether by way of repeal, or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.'

XXXXX

The position after the adaptation was that while Order is, Rule 15 C.P.C. applied even to trials in Small Cause Courts, the schedule to the Hyderabad Small Causes Courts Act excluded it from the purview of such trials. So, there was repugnancy between the two provisions.

8. The point, therefore, is which provision should prevail in the matter of trial of causes in the Small Cause Courts? We think that the rovisions of the Hyderabad Small Cause Courts Act would override those of the Civil Procedure, which are inconsistent with the former, because of Section 127 of the States Re-organisation Act. That section reads:--

'The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.'

As the amendment was effected by the State Legislature by way of adaptation pursuant to the power derived by section 120, the relevant clause must be deemed to have been made under the provisions of the States Re-organisation Act. If that were the real legal position, that must take precedence over the provisions of the Civil Procedure Code.

9. If Order 18, R. 15 C. P. C. is not attracted to trials in Small Cause Courts in the city, there is no other provision which clothes the Small Cause Court Judge with power to act on the memorandum of evidence recorded by his predecessor. In the absence of such provision, it is not competent to a court to act on such evidence which means that there should be a de novo trial i.e., the trial should begin afresh. A de novo trial having become necessary under these circumstances, it is not open to the succeeding Judge to continue the trial from the stage at which it was left by his predecessor. In the circumstances, the petitioner is entitled to request the Court to begin the trial anew.

10. In the result, the Civil Revision Petition Is allowed. There will be no order as to costs.


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