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Bisheshwar Prasad Gautam Vs. Dr. R.K. Agarwal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2028 of 1973
Judge
Reported inAIR1977All103
ActsCode of Civil Procedure (CPC) , 1908 - Sections 102 and 115; Uttar Pradesh Civil Laws (Amendment) Act, 1972
AppellantBisheshwar Prasad Gautam
RespondentDr. R.K. Agarwal
Appellant AdvocateT.N. Govil, Adv.
Respondent AdvocateR.N. Bhalla and ;A.N. Verma, Advs.
DispositionAppeal dismissed
Excerpt:
civil - nature of cases - section 102 of code of civil procedure, 1908 - cases of nature of small causes being heard in regular course - transferable to small cause court - even if not transferred nature of case retained - no second appeal allowed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under..........be transferred and heard by the court of small causes was in facttaken during the trial of the suit the trial proceeded in the court of munsif and ultimately the suit was decreed. aggrieved, the defendant went up in appeal. the learned district judge repelled the various submissions raised in support of it and dismissed it. the defendant then filed a second appeal in this court.2. at the hearing of the second appeal a preliminary objection was taken on behalf of the respondent that no second appeal lay in view of section 102 of the code of civil procedure. the learned single judge, however, heard the appeal on the question that the decree passed by the trial court was without jurisdiction and a nullity. he found that conflicting inferences could be drawn from different full bench.....
Judgment:

Satish Chandra, J.

1. This is a defendants' appeal. It arises out of a suit for ejectment and arrears of repairs and damages, instituted in the court of Munsif, Allahabad. The suit was valued at less than Rs. 2,000/-. Before evidence in the suit could begin the U. P. Civil Laws Amendment Act, 1972 came into force. Under it suits for ejectment and recovery of arrears of rent and damages became small causes in nature. Section 9 of the Act provided for the transfer of such suits pending in regular courts to the court of small causes provided the recording of evidence had not begun. In the present case the recording of evidence commenced after the coming into force of the Amending Act No objection that the suit should be transferred and heard by the court of small causes was in facttaken during the trial of the suit The trial proceeded in the court of Munsif and ultimately the suit was decreed. Aggrieved, the defendant went up in appeal. The learned District Judge repelled the various submissions raised in support of it and dismissed it. The defendant then filed a second appeal in this Court.

2. At the hearing of the second appeal a preliminary objection was taken on behalf of the respondent that no second appeal lay in view of Section 102 of the Code of Civil Procedure. The learned Single Judge, however, heard the appeal on the question that the decree passed by the trial Court was without jurisdiction and a nullity. He found that conflicting inferences could be drawn from different Full Bench decisions of this Court, and in view of the importance of the question involved in the context of the new Civil Laws Amendment Act, 1972, it was a fit case in which the appeal should be heard by a larger Full Bench, the learned Judge referred the appeal itself to a larger Bench. That is how the appeal has come up before this Full Bench.

3. At the commencement of the hearing we asked learned counsel for the appellant to satisfy us whether the second appeal was competent.

4. Section 102 of the Code of Civil Procedure provides--

'No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, 'when the amount or value of the subject-matter of the original suit does not exceed one thousand rupees.'

5. It cannot be gainsaid that thepresent suit became small causes in natureafter the coming into force of the CivilLaws Amendment Act, 1972, It is truethat under Section 9 of the AmendingAct such suit was, triable by the SmallCause Court and was liable to be transferred to it from the regular side, butnonetheless, it continued to retain itsnature, namely, small causes. In thatevent Section 102 which applies to suitsof the nature of small causes but whichare tried on the regular side, is fully applicable. Under it no second appeal lies.The present second appeal is clearly incompetent.

6. At this stage learned counsel for the appellant prayed that the memorandum of appeal be permitted to be converted into a civil revision. This is a discretionary matter. We find that the defendant appellant did not inform thetrial court that it has lost jurisdiction to continue to try the suit because of the coming into force of Section 9 of the Civil Laws Amendment Act, 1972, otherwise the trial Court would have immediately transferred the case to the relevant Small Cause Court. There is no evidence to show that the defendant was not aware of the coming into force of the Amending Act. Under the circumstances the position is that the defendant voluntarily had a trial on the merits before a, regular court. The procedure before a regular court is more detailed. Further, the defendant has had another innings on the merits before the lower appellate court. Under the circumstances we do not think that this is a fit case where the prayer for conversion of the appeal into a revision should be sustained. We, therefore, decline to convert the appeal into a revision.

7. After the hearing was over, learned counsel for the appellant submitted a note containing references of four authorities. Having perused them we find that they are not relevant or material on the question of the maintainability of the appeal.

8. The appeal is accordingly dismissed as incompetent. The parties will bear their own costs.


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