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Trilok Singh Vs. Smt. Jamuna Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 331 of 1974
Judge
Reported inAIR1978All129
ActsProvincial Small Cause Courts Act, 1887 - Sections 15(3), 17 and 17(1) - Schedule - Article 4; Bengal Agra and Assam Civil Courts Act, 1887 - Sections 25(2); Code of Civil Procedure (CPC) , 1908 - Order 5, Rule 5 - Order 43 - Order 50, Rule 1
AppellantTrilok Singh
RespondentSmt. Jamuna Devi and anr.
Appellant AdvocateSri Siddheshwari Prasad, Adv.
Respondent AdvocateLaxmi Behari, Adv.
DispositionAppeal dismissed
Excerpt:
civil - jurisdiction - sections 15 (3) along with proviso, 17 (1), 32 and schedule 2 article 4 of provincial small cause courts act, 1887 (as amended in state of u.p.), section 25 (2) of bengal, agra and assam civil courts act, 1887 and section 104 and order 50 of code of civil procedure, 1908 - pecuniary limit of rs. 5000/- laid down by section 15 (3) of small cause courts act does not apply to special jurisdiction conferred under section 25 (2) of civil courts act upon district judges and additional district judges to try all suits filed by lessor - distinction to be made between court of small causes constituted under provincial small cause courts act and courts of presiding officers conferred with special jurisdiction under section 25 (2) of civil courts act to try suits in the nature.....m.p. mehrotra, j.1. this first appeal from order is directed against an order passed by the 1st additional district judge, varanasi dismissing an application under order ix rule 13 c. p. c.2. the brief facts are these. a suit was filed by the plaintiff for the eviction of the defendant on the allegation that the letter's tenancy -had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. arrears of rent and damages for illegal use and occupation were also claimed. the suit was decreed ex parte. the defendant moved an application under order ix rule 13, c. p. c. for setting aside the ex parte decree. a preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of.....
Judgment:

M.P. Mehrotra, J.

1. This First Appeal From Order is directed against an order passed by the 1st Additional District Judge, Varanasi dismissing an application under Order IX Rule 13 C. P. C.

2. The brief facts are these. A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the letter's tenancy -had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. The suit was decreed ex parte. The defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore. Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance of the decree or compliance with the judgment as the court might, on a previous application made by him in this behalf would have directed. Since admittedly this was not done, therefore, the application under Order IX, Rule 13, C. P. C. was not maintainable the court below viz. the Addl. Dist. Judge, Varanasi upheld the said objection and rejected the application. Hence, the defendant has now come up in the instant appeal and in support and opposition thereof I have heard the learned counsel for the parties.

3. Sri Siddheshwari Prasad, learned counsel for the defendant-appellant raised the following contententions:

(i) In view of the valuation of the suit amounting to Rs. 8995/- the suit could not be tried as a suit of the nature of Small Causes and it could be tried only as a regular suit and, on that basis, the provisions of the Provincial Small Cause Courts Act would not be applicable to the decree which was passed by the court below,

(ii) Even if the suit were held to be triable as a suit of the nature of Small Causes, still on a true interpretation of the relevant provisions of the Provincial Small Cause Courts Act, the proviso to Section 17 would not be attracted, inasmuch as, Section 17 and its proviso should be interpreted to be applicable only to regular courts of Small Causes and not to Courts which have been invested with the jurisdiction to try suits of the nature of Small Causes.

(iii) In the facts of the instant case, the appellant should not be made to suffer on account of the mistake which was committed by the trial court.

4. On the other hand, Sri Laxmi Behari, learned counsel for the plaintiffs-respondents, has supported the order under appeal and has questioned the maintainability of the appeal itself on the ground that as the order in question was passed in a suit which was bound to be treated as a suit of the nature of Small Causes, therefore, no appeal would lie and, if at all, only a revision could lie under Section 25 of the Provincial Small Cause Courts Act. He has also contended that it will make no difference even if the contention of Sri Sidheshwari Prasad were to be accepted that the suit was really tried by the court below on its regular side and not as a suit of the nature of Small Causes.

5. Before dealing with the rival contentions raised at the Bar. I think, I should draw attention to the relevant statutory provisions. First, I shall notice the provisions of the Provincial Small Cause Courts Act. Section 4 defines Court of Small Causes in the following words:

'4. Definition. -- In this Act, unless there is something repugnant in the subject or context 'Court of Small Causes' means a Court of Small Causes constituted under this Act, and includes any person exercising jurisdiction under this Act in any such court.'

Section 5 provides for the establishment of Courts of Small Causes. Section 6 provides for the appointment of a Judge of such a Court of Small Causes. Section 15 occurring in Chapter III laid down as follows till it was amended by the U. P. Civil Laws Amendment Act 1968:

'15 (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable.

(2) 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.

(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.'

6. By the aforementioned amending Act, in Sub-section (2) of Section 15 the sum of Rs. 1,000/- was substituted for the sum of Rs. 500/-and in Sub-section (3), the figure of Rs. 2000/- was substituted for the figure of Rs. 1000/-. It may be stated here that the Uttar Pradesh Civil Laws Amendment Act. 1968 was the President's Act No, 35 of 1968 and it was repealed by the U. P. Civil Laws Amendment Act of 1970. While repealing the said President's Act, the old Sub-sections (2) and (3) of Section 15 were re-enacted with the result that basically the position remained as it was brought about by the amending Act of 1968.

7. By the Civil Laws Amendment Act of 1972 (U. P. Act No. 37 of 1972), a proviso was added to Section 15 (3). The proviso reads as under:

'Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof after such determination of lease, the reference in this sub-section to two thousand rupees shall be construed as a reference to five thousand rupees.

Explanation.-- For the purpose of this sub-section, the expression 'building' has the same meaning as in Article 4 in the Second Schedule.' Section 16 lays down as under:

'16. Exclusive jurisdiction of Courts of Small Causes.-- Save as expressly provided by this Act or by any other enactment for the time being in force, 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.' Section 17 is as follows:

'17. Application of the Code of Civil Procedure--

(1) The procedure prescribed in the Code of Civil Procedure 1908, shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it, and in all proceedings arising out of such suits:

Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application either deposit in the Court the amount due from him under the decree or in pursuance of judgment, or give such security for the performance, of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.

(2) Where a person has become liable as surety under the proviso to Sub-section (1) the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908.

Under Section 25 a revision lies to the Court of the District Judge against a decree or order made in any case decided by a Court of Small Causes. Sections 32 and 33 lay down as under:

'32. Application of Act to Courts invested with jurisdiction of Court of Small Causes.-- (1) So much of Chapters III and IV as relates to (a) the nature of the suits cognizable by courts of Small Causes,

(b) the exclusion of the jurisdiction of other Courts in those suits,

(c) the practice and procedure of Courts of Small Causes,

(d) appeal from certain orders of those Courts and revision of cases decided by them, and

(e) the finality of their decrees and orders subject to such appeal and revision as are provided by this Act, applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts.

(2) Nothing in Sub-section (1) with respect to Courts invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceedings in those Courts before the date on which they were invested with that jurisdiction.

33. Application of Act and Code to Court so invested as to two Courts.-- A Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall for the purposes of this Act and the Code of Civil Procedure, be deemed to be different courts.'

Article 4 in Schedule II before its amendment by the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972) was as follows:

'a suit for the possession of immovable property or for the recovery of an interest in such property.'

After its amendment by the aforesaid amending Act of 1972, Article 4 stood as under:

'(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation.-- For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure and includes any land (including any garden), garages and outhouses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.'

8. Now certain provisions of the Bengal, Agra and Assam Civil Courts Act may be noticed. Before its amendment, in 1968, Section 25 stood as follows:

'25. Power to invest civil Judges and Munsifs with Small Cause Court jurisdiction.-- The State Government may, by notification in the official Gazette, confer within such local limits as it thinks fit, upon any Civil Judge or Munsif the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of suits cognizable by such courts, upto such value not exceeding five hundred rupees in the case of a Civil Judge or two hundred and fifty rupees in the case of a Munsif as it thinks fit, and may withdraw any jurisdiction so conferred:

Provided that the State Government may, by notification in the Official Gazette, delegate to the High Court its powers under this section.'

9. By the aforesaid Civil Laws Amendment Act 1968, for the words 'five hundred rupees' and 'two hundred and fifty rupees' the words 'one thousand rupees' and 'five hundred rupees' were respectively substituted. As stated above, the said Act of 1968 (which was the President's Act) was repealed by the U. P. Civil Laws Amendment Act of 1970 and Section 25 was re-enacted in the same shape in which it stood in consequence of the amendment made by the Act of 1968. Thus the section after the enactment of the Act of 1970 stood as follows:

'25. The State Government may, by notification in the Gazette, confer, within such local limits as it thinks fit, upon any Civil Judge or Munsif the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (Act IX of 1887) for the trial of suits cognizable by such Courts, upto such value not exeeding one thousand rupees in the case of a Civil Judge or five hundred rupees in the case of a Munsif as it thinks fit, and may withdraw any jurisdiction so conferred:

Provided that the State Government may by notification in the Gazette, delegate to the High Court its power under this section.' By the aforementioned U. P. Civil Laws Amendment Act of 1972 (U. P. Act No. 37 of 1972) Section 25 was extensively amended. Section 5 of the said Amending Act is reproduced below:

'5. Amendment of Section 25 of Act XII of 1887.-- Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, as amended in its application to Uttar Pradesh shall be renumbered as Sub-section (1) thereof, and--

(i) in Sub-section (1) as so renumbered, for the existing proviso, the following proviso shall be substituted, namely:--

'Provided that in relation to suits of the nature referred to in the proviso to Sub-section (3) of Section 15 of the said Act the reference in this Sub-section to one thousand rupees and five hundred rupees shall be construed respectively as references to five thousand rupees and one thousand rupees:

(ii) after Sub-section (1) as so renumbered the following sub-section shall be inserted, namely,

(2) The State Government may, by notification in the Official Gazette, confer upon any District Judge or any Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value) by the lessor for the eviction of a lessee from a building after the determination of his lease or for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease or of compensation for the use and occupation thereof after such determination of lease, and may withdraw any jurisdiction so conferred.

Explanation-- For the purposes of this Sub-section, the expression 'building' has the same meaning as in Article 4 in the Second Schedule to the said Act'

(3) The State Government may by notification in the Official Gazette delegate to the High Court its powers under this section.'

10. By the U. P. Civil Laws Amendment Act of 1973 (President's Act No. 19 of 1973) another Sub-section, namely, Sub-section (4) was added to Section 25, the said Sub-section (4) reads as follows:

'Where the jurisdiction of a Judge of a Court of Small Causes is conferred upon any District Judge or Additional District Judge by notification under this section, then, notwithstanding anything contained in Section 15 of the Provincial Small Cause Courts Act, 1887 all suits referred to in Sub-section (2) shall be cognizable by Court of Small Causes.'

By virtue of Section 1 (3) of the said Act of 1973 it shall be deemed that the said Sub-section (4) came into force on the 20th September, 1972, i. e. the date on which the U. P. Civil Laws Amendment Act of 1972 came into force.

11. Certain notifications which have been issued may also be noticed here. Notification No. 4111 (8) VII-A-580/72. dated September 22, 1972, published in Uttar Pradesh Gazette, dated 30-9-72, Part I (page 5252) issued by the State Government lays down as under:

'In exercise of the powers conferred by Sub-section (3) of Section 15 of the Provincial Small Cause Courts Act, 1887 (Act IX of 1887) as amended by the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972) and in continuation of Government Notification No. 1 (8) 69-Nyaya (Ka-II), dated September 23, 1969, the Governor is pleased to direct, that subject to the exception specified in the second schedule of the first mentioned Act, and to the provisions of any enactment for the time being in force, all suits referred to in the proviso to the said Sub-section of which the value does not exceed five thousand rupees, shall, with effect from the date of publication of this notification, be cognizable by the Courts of Judge, Small Causes, Bareilly, Moradabad, Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad, Varanasi, Agra, Lucknow and the Court of Additional Judge, Small Causes, Lucknow.'

12. The State Government issued another notification on the same day i.e. dated Sept. 22, 1972, published in Uttar Pradesh Gazette, Part I, dated Oct. 7. 1972 (page No. 5973), which lays down as under:

'In exercise of the powers under Sub-section (3) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) as amended by the Uttar Pradesh Civil Laws (Amendment) Act, 1972, (U. P. Act No. 37 of 1972) and in supersession of all earlier notifications issued in this behalf, the Governor is pleased to delegate to the High Court of Judicature at Allahabad the powers of the State Government under the said Section.'

13. By notification No. 525 dated 25-10-1972 the High Court conferred

'upon all the District Judges and Additional District Judges, the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (Act IX of 1887), for the trial of all suits (irrespective of their value) of the nature referred to in the said Sub-section (2).'

14. By notification No. 526 dated 25-10-1972, the High Court directed as under:

'......the High Court is pleased to confer with immediate effect, upon all the civil Judges and Munsifs, while posted in a district where there is no Court of Small Causes, the jurisdiction of a Judge of a Court of Small Causes, under the Provincial Small Cause Courts Act, 1887 (Act IX of 1887), for the trial of suits upto the value specified below:--

(i) all suits of the nature referred to in the proviso to Sub-section (3) of Section 15 of the said Act IX of 1887, cognizable by a Court of Small Causes.--

(a) Civil Judges--of any value not exceeding five thousand rupees;

(b) Munsifs--of any value not exceeding one thousand rupees;

(ii) all other suits cognizable by a Court of Small Causes--

(a) Civil Judges--of any value not exceeding one thousand rupees.

(b) Munsifs--of any value not exceeding five hundred rupees.'

15. On a consideration of the aforesaid provisions of the Provincial Small Cause Courts Act and of the Bengal, Agra and Assam Civil Courts Act, in : AIR1975All425 (M. P. Misra v. Sangam Lal Agrawal), I laid down that the pecuniary limit of Rs. 5000/- laid down by the proviso added to Section 15(3) of the Provincial Small Cause Courts Act by the Civil Laws Amendment Act, 1972 (U. P. Act No. XXXVII of 1972), does not apply to the jurisdiction of the District Judges and the Additional District Judges to try suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for the recovery from him of rent etc. where they have been conferred such jurisdiction in terms of Section 25(2) of the Bengal, Agra and Assam Civil Courts Act after its amendment by the U. P. Civil Laws Amendment Act of 1972. The said view of mine has been followed by a learned single Judge of this court while deciding Civil Revision No. 1432 of 1974 on 21-11-1975 (All). In (1977) 3 All LR 381 Hon'ble Chandra Shekhar J. (as his Lordship then was) independently reached the same conclusion without referring to my aforesaid re ported judgment. Nothing has been submitted from the bar which would induce me to revise my opinion and in this view of the matter, I overrule the first contention of Sri Sidhewshwari Prasad and hold that despite the valuation of the suit in question exceeding Rs. 5,000/- it was triable by the Additional District Judge as a suit of the Small Cause nature in view of the conferment of jurisdiction on him to do so in terms of Section 25(2) of the Bengal, Agra and Assam Civil Courts Act.

16. I now go on to deal with the second contention of Sri Sidheshwari Prasad. Learned counsel's contention is based on the use of the expression 'Court of Small Causes' in Section 17(1) of the Provincial Small Cause Courts Act. He has contended that looking to the provisions of Sections 4, 5 and 6 of the said Act, it has to be held that a distinction should be drawn between the Court of Small Causes constituted under the Provincial Small Cause Courts Act and certain presiding officers being invested with the jurisdiction to try suits in the nature of Small Causes under the provisions of the Bengal Agra and Assam Civil Courts Act. The distinction undoubtedly is real and I have myself held accordingly in reference to Section 15 of the Provincial Small Cause Courts Act in my aforesaid iudgment. However, the further contention of the learned counsel that Section 17(1) including its proviso will not be applicable to the trial of the suits in the Court of Officers who have been conferred such special jurisdiction under Section 25 of the Bengal, Agra and Assam Civil Courts Act is not tenable. In this connection a reference may be made to Section 32 of the Provincial Small Cause Courts Act. The same has been reproduced above and it seems to me that looking to the various provisions of Sub-section (1) of the said section, it is not possible to argue that the procedure laid down in Chapters III and IV of the Provincial Small Cause Courts Act (Section 17 occurs in Chapter IV) will not be applicable to the trial and disposal of suits by such Courts which have been specially conferred the jurisdiction. Clause (c) refers to the practice and procedure of Courts of Small Causes and, in my opinion. Section 17(1) including its proviso lays down the procedure. Section 24(4) C. P. C. has been referred to but, in my opinion, the same is not attracted to the facts of the instant case, we are not dealing with a situation where a suit might have been transferred or withdrawn from a Court of Small Causes. It is not disputed that the instant suit was never instituted in the regular Court of Small Causes at Varanasi. It was, on the other hand, instituted in the Court of the District Judge, Varanasi. So we can ignore Section 24(4), C. P. C. Learned counsel's contention that Section 32 is merely regulatory and will not affect the substantive law contained in Section 17 is again difficult to be accepted. It will be seen that Chap. III is headed as 'Jurisdiction of Courts of Small Causes'. Chapter IV is headed as 'Practice and Procedure', and, as I stated above, Section 17 occurs in this Chapter. It, therefore, obviously refers to the practice and procedure which has to be followed in a regular court of Small Causes. It is not possible to contend that the main part of Subsection (1) of Section 17 stands out apart from its proviso. In other Words, it is not possible to contend that whereas the main part of subsection (1) is referable to the practice and procedure, the proviso is not referable to such practice and procedure. The entire Sub-section, including the proviso, is a part of the procedure to be followed in the Courts of Small. Causes. By virtue of Section 32(1) Clause (c), the practice and procedure of the Courts of Small Causes applies to the Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts. In this view of the matter, the application under Order IX Rule 13, C. P. C. in the instant case had to be considered with reference to Section 17(1) and the proviso, as I stated above, is an intesral part of the said Sub-section. I have, therefore, no doubt that the proviso will apply to an application under Order IX, Rule 13, C. P. C. moved in a suit of the nature of Small Causes which is pending in a Court which has been invested with the jurisdiction to try the same under the provisions of Section 25 of the Bengal, Agra and Assam Civil Courts Act. Learned counsel for both the parties are agreed that there is no direct case which might have considered the point which has been raised at the bar. However, I may refer to my own aforesaid judgment reported in : AIR1975All425 . In the said case also, an identical situation had arisen and an ex parte decree had been passed in a suit which had been filed by the lessor for the eviction of the tenant after determining the latter's tenancy. Arrears of rent and damages etc. were also claimed in the suit and an application had been made under Order IX Rule 13 C. P. C. for setting aside the ex parte decree. The trial court held that the said application was not maintainable in view of the failure of the applicant to comply with the proviso to Section 17 of the Provincial Small Cause Courts Act. A revision was filed against the said order of the IVth Additional District Judge by whom the suit had been decreed ex parte and who had rejected the application under Order IX Rule 13 C. P. C. It will be seen that in the said case also the suit was not pending before a regular Court of Small Causes but was being tried by an Additional District Judge by virtue of the conferment of power on him to do so under Section 25(2) of the Bengal, Agra and Assam Civil Courts Act. I dismissed the revision and upheld the order of the trial court and I observed,

'therefore, the contention of the learned counsel that the court below was wrong in holding that Section 17 was attracted to the facts of the case is not correct.'

Certain cases were referred to by the learned counsel but I am not making any reference to them because it was not disputed that the said cases were not with reference to Section 32 but related to certain other sections such as Section 35 etc. and in my view, the said cases do not touch the controversy at hand even on the sidelines. I am, therefore, ignoring them.

17. Lastly, I shall take up the third contention raised by the learned counsel. Sri Sidheshwari Prasad drew my attention to the plaint and, in particular, to paragraph 14 thereto. He emphasised that, at the top of the plaint, while describing the Court, no precaution was taken to state that the suit was being instituted in the Court of the District Judge as being specially conferred the jurisdiction to try the suit as a suit of the nature of Small Causes under the provisions of Section 25(2) of the Bengal, Agra and Assam Civil Courts Act. In the body of the plaint also no such reference was made. The counsel contended that looking to the definition of District as contained in Section 2(4) C. P. C., it has to be held that the District Judge's Court, as the Principal Civil Court of original jurisdiction in the District was competent to entertain the suit on its regular side and, therefore, it should be deemed that the suit was instituted in the Principal Court of original civil jurisdiction in the District. Further, he has drawn attention to the process which was issued in the instant case. The summonses were issued fixing date for the filing of the written statement and for the settlement of issues and they did not intimate that the date was for the final hearing.

In this connection, attention was also invited to Order V Rule 5 C. P. C. where the proviso clearly lays down that in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. He has further drawn attention to the office report dated 2nd August, 1974 where the application under Order IX Rule 13 C P. C. was reported to be in order. The court also in its order did not refer to any infirmity in the application on the ground of non-compliance with the proviso to Section 17 of the Provincial Small Cause Courts Act. Counsel has further drawn attention to the fact that for the first time in the written objection which was filed by the plaintiff on 14th September, 1974, an objection was raised that the application under Order 9 Rule 13 C. P. C. was not maintainable for non-compliance with the aforesaid proviso to Section 17. By that time, the period of limitation for complying with the proviso to Section 17 was over and, in the circumstances, even if it be held that the suit was not tried on the regular side by the Additional District Judge, there is sufficient material on record to show that the mistake which was committed by the defendant-appellant was caused due to the mistake on the part of the court itself. In such a situation, a litigant should not be allowed to suffer. I have considered this aspect of the matter. I have also considered the contention raised by Sri Laxmi Bihari, on behalf of the plaintiff-respondent, that irrespective of whether the suit has been wrongly tried on the regular side by a Court of Small Causes or by a court specially invested with such jurisdiction, the nature of the suit remains the same, namely, as a suit of Small Causes and, therefore, the legal incidents which follow due to such nature of the suit not undergoing any change, remain intact both in respect of the non-appealabiiity of the decree which is passed or in respect of an application to set aside the ex parte decree. He has cited certain cases before me and, if necessary, I would have noticed them but I must confess that there is a lot of difference of judicial opinion on the said question. For example, the question whether a first appeal will lie against a decree which is passed on the regular side by such Courts or whether the decree shall still remain a decree in a suit of Small Cause capable of being revised only under Section 25 and not capable of being appealed from as a regular decree, has given rise to conflicting Full Bench decisions of different Courts. In : AIR1970MP237 , a Full Bench of the said Court differed from a Full Bench decision of the Madras High Court reported in AIR 1933 Mad 322. I am not examining this controversy in detail because, in my view, the point raised by the learned counsel can be disposed of on another short ground. I do not think that it is obligatory when a suit of the nature of Small Causes is filed in a court specially invested with jurisdiction to try such suit, to state the said fact in the cause title of the plaint. There is no such requirement in the Statute and I do not think that it is necessary. Similarly, in my view it is not necessary that in the body of the plaint there should be such a recital. However, it may be conducive to do so and, I think, if it is so stated in the cause title, many difficulties which subsequently arise in the trial of the suit may be avoided. However, desirability is not to be equated with the requirement of law. It is true that the court, in the instant case, did commit an irregularity in failing to observe the provisions of Order V Rule 5 C. P. C. According to the terms of the proviso to Order V Rule 5 C. P.C., the summons in the instant case should have been for the final disposal of the suit and not for the settlement of issues but this, in my view, was a mere irregularity and cannot be said to have affected the jurisdiction of the court in any manner whatsoever. Such an irregularity was capable of being cured and in the facts of the instant case, the most vital thing is that the suit was admittedly tried as a suit of the nature of Small Causes. The memorandum of evidence was recorded as required in such suits and it is also not disputed that the decree was also drawn as required in the case of such suits. In this view of the matter, whatever might have been the justification, if any, for the earlier misconception, at the material date, there was no justification for any misconception for, I again emphasise, the trial itself took place as in a suit of the nature of Small Causes and the decree was drawn accordingly. I, therefore, do not find any merit in the submission that the appellant was misled on account of the alleged mistakes dommitted by the Court or its office.

18. Lastly, I feel that this appeal itself is to be held to be not maintainable. Section 7 of the Code of Civil Procedure lays down that certain provisions in the body of the Code shall not be applicable to Courts constituted under the Provincial Small Cause Courts Act or to courts exercising the jurisdiction of a court of Small Causes under the said Act or law. Sections 96 to 112 and 115 C. P. C. are mentioned as some of the Sections of the Code which will not apply to such Courts. It is, therefore, clear that Section 104 C. P. C. also will not be applicable and an appeal under the said section read with Order 43, Rule 1 (W) C. P. C. will not be maintainable. In this connection, Order 50 C. P. C. has also to be referred to, which refers to those parts of the 1st schedule to the Civil Procedure Code which have been excepted from application to Courts of Small Causes or to Courts exercising special iuris-diction to try suits in the nature of Small Causes. It will be seen that Order 43 is one of such excepted orders. Therefore, this appeal has to be held to be not maintainable. A question whether it would become appealable by virtue of the trial of the suit, on the regular side, does not arise in the instant case because, as I have already emphasised, the trial in the instant case was not on the regular side but as in the suit of the nature of Small Causes and the decree was also drawn accordingly. The appeal is, therefore, to be held to be not maintainable but apart from this aspect of the matter, I have considered the appeal on its merit also.

19. The appeal accordingly fails but in the circumstances, there will be no order as to costs. A prayer has been made that some time may be granted to the appellant to vacate the accommodation. A period of three months is granted for the said purpose and the ex parte decree shall not be executable for a period of three months from the date of this order.


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