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Manzurul Haq and anr. Vs. Hakim MohsIn Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 619 of 1967 connected with Civil Revn. No. 1269 of 1967
Judge
Reported inAIR1970All604
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Provincial Small Cause Courts Act, 1887 - Sections 15, 15(2) and 16
AppellantManzurul Haq and anr.
RespondentHakim MohsIn Ali
Appellant AdvocateS.S. Bhatnagar and ;Hari Om Singh, Advs.
Respondent AdvocateK.C. Agarwal, Adv.
Excerpt:
civil - res judicata - section 11 of code of civil procedure, 1908 - decision of small cause court in a suit whether to be taken as res judicata - though same property in dispute but different issues contested in subsequent suit - held, decision will not operate as res judicata. - - 9. in the question which has been raised before us the first and second conditions are satisfied, and, therefore, the fourth, condition will not arise. the third condition, however, is not satisfied because a court of small causes is not competent to try a suit for ejectment -vide second schedule, clause (4), read with section 15 of the provincial small cause courts act. banamali sen [1953]4scr644 .11. the law is now well settled that the decision in a proceeding given by a court of exclusive jurisdiction.....s.d. khare, j.1. in this civil revision the only question that requires consideration is whether the decision given by a court of small causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the court of munsif for the recovery of arrears of rent for a different period and for ejectment.2. the court of small causes had no jurisdiction to entertain a suit for ejectment, and, therefore, the latter suit had to be filed in the court of munsif.3. the dispute between the parties in the court of small causes was about the rate of rent. the plaintiff was claiming rent at the rate of rs. 15/- per month, while the defendants' case was that the rate of rent was rs. 10/- per month only. the decision of the judge, small cause court, on merits was that the rate of.....
Judgment:

S.D. Khare, J.

1. In this civil revision the only question that requires consideration is whether the decision given by a Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the Court of Munsif for the recovery of arrears of rent for a different period and for ejectment.

2. The Court of Small Causes had no jurisdiction to entertain a suit for ejectment, and, therefore, the latter suit had to be filed in the Court of Munsif.

3. The dispute between the parties in the Court of Small Causes was about the rate of rent. The plaintiff was claiming rent at the rate of Rs. 15/- per month, while the defendants' case was that the rate of rent was Rs. 10/- per month only. The decision of the Judge, Small Cause Court, on merits was that the rate of rent was Rs. 10/-per month only. In the subsequent suit, out of which this revision application arises, the plaintiff, while praying for ejectment of the defendants, claimed rent for the period preceding the second suit at the rate of Rs. 15/- per month. It was in these circumstances that the question arose whether the decision given by the Judge, Small Cause Court, about the rate of rent will operate as res judicata in a subsequent suit filed before the Munsif for arrears of rent and ejectment.

4. The Munsif decided that issue in the negative and in favour of the plaintiff. The revision application has been filed by the defendants against that order.

5. It was listed for hearing before a learned Single Judge of this Court, who noticed that there was a conflict of opinion on this point in two cases decided by this Court, both being Single Judge decisions. He, therefore, referred this case to a larger Bench. The Division Bench, which next heard it, was of the opinion that the question was of general importance, and, therefore, it was proper that it should be considered by a Full Bench. That is how this revision, application has come before us for disposal.

6. The revision application will have to be dismissed in case we hold that the decision given by the Judge, Small Cause Court will not operate as res judicata in the subsequent suit for arrears of rent and ejectment filed in the Court of Munsif.

7. Section 11, Civil Procedure Code provides as to when a decision given in a prior suit will operate as res judicata in a subsequent suit. Section 11, Civil Procedure Code reads as follows:--

'11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially, in issue in a former suit betweenthe same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation 1. -- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II -- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. -- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. -- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V. -- Any relief claimed id the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI. -- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'

8. The requirements of Section 11, Civil Procedure Code, therefore, are--

(1) Matter directly and substantially in issue in the former suit must be directly and substantially in issue in the subsequent suit also.

(2) Both the suits should be between the same parties or between parties under whom they, or any of them, claim, litigating under the same title.

(3) The former suit should have been decided by a Court competent to try such subsequent suit.

(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

9. In the question which has been raised before us the first and second conditions are satisfied, and, therefore, the fourth, condition will not arise. The third condition, however, is not satisfied because a Court of Small Causes is not competent to try a suit for ejectment -- vide Second Schedule, Clause (4), read with Section 15 of the Provincial Small Cause Courts Act.

10. The above proposition of law' has not been disputed before us by the learned counsel for the applicants. It has, however, been contended by him that the Court of Small Causes is a Court of exclusive jurisdiction, and, therefore, the general principles of res judicata will apply. It has further been contended that when general principles of res judicata will apply, the condition that the court deciding the former proceeding must also be competent to decide the subsequent suit has to be waived. Reliance has been placed by him on the case of Raj Lakshmi Dasi v. Banamali Sen : [1953]4SCR644 .

11. The law is now well settled that the decision in a proceeding given by a Court of exclusive jurisdiction will, on general principles of res judicata, bar the decision of the same matter in a subsequent proceeding or suit. The case of : [1953]4SCR644 (supra) is a clear authority on that point. In that case it was decided during apportionment proceedings under Land Acquisition Act that the widow of (had-Ed.) a three-fourth share in the property and the other party had only one-fourth share in the property left by her husband. The same question arose for consideration in a subsequent suit filed in respect of some other property which the parties claimed to have inherited from the same person. It was held that the land acquisition Court was a Court of exclusive jurisdiction, competent to decide the matter which arose before it for consideration, and that its decision in the land acquisition proceedings regarding the extent of widow's interest in the property left by her husband will operate as res judicata in a subsequent suit filed in a regular Court between the same parties. It was also pointed out that Section 11, Civil Procedure Code has application only where the former decision was giver in a Civil Suit and the bar is pleaded in a subsequent suit, that is to say, where both the proceedings before the Court are civil suits. Since a proceeding before the Land Acquisition Officer was not a civil suit, Section 11, Civil Procedure Code could not apply, and, therefore, general principles of res judicata will apply, and for the application of general principles of res judicata it Was not at all necessary that the Court of exclusive jurisdiction deciding the matter must be competent to decide the subsequent suit also. Identity of property was also not essential, the test being identity of title under which the, parties were litigating.

12. From what has been stated above it is clear that in the case of : 1953CriLJ525 (supra) the general principles of res judicata were applied merely on the grounds that

(a) Section 11, Civil Procedure Code applies only where both the former proceeding and the subsequent proceeding are Civil Suits,

and

(b) the land acquisition Court was a Court of exclusive jurisdiction and the proceeding before it was not a Civil Suit.

13. Where both the former proceeding and the subsequent proceeding are civil suits, the bar of res judicata can be pleaded only under the provisions of Section 11, Civil Procedure Code. The general principles of res judicata will apply only where neither of the two proceedings is a civil suit or only one of them is a civil suit. This proposition of law is not disputed, and finds ample support from the decisions given in Janakirama Iyer v. P.M. Nilakanta Iyer : AIR1962SC633 and Munesh Chandra v. Beni Ram Mool Chand : AIR1967All28 .

14. The law, however, is equally well established that where neither of the two proceedings, or at least one of them, is not a civil suit, Section 11, C. P. C. will not apply and the case would be governed by general principles of res judicata -- vide : [1953]4SCR154 (supra) and Gulabchand Chhote-lal v. State of Gujarat, : [1965]2SCR547 . In the case of : [1965]2SCR547 . (supra) it was held that the decision in the earlier writ petition on merits will bar subsequent suit involving the same question on general principles of res judicata.

15. It has now to be considered whether the court of small causes is a court of exclusive jurisdiction, so that it can be said that the proceeding before the court is not a civil suit.

16. Learned counsel for the applicants contended that the court of small causes is a court of exclusive jurisdiction because of the following provisions contained in the Provincial Small Cause Courts Act:--

'15. (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits expected (excepted --Ed.) from the cognizance of a Court of Small Causes.

(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) ............

16. '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.'

17. It has been contended that the Court of Small Causes, and no other court, can take cognizance of a suit triable by a court of small causes 'in the area for which such court of small causes has been appointed.

18. In my opinion there is no force in this contention. The scheme of the Provincial Small Cause Courts Act is that out of the civil suits triable by regular courts all suits of a civil nature, not excepted from the cognizance of a court of small causes of which the value does not exceed Rs. 1000 shall be cognizable by a court of small causes, and by no other court. Where courts of small causes have not been established in any area, all civil suits for that area which could have been tried by a court of small causes will have to be tried by an ordinary court of Munsif as a regular suit. It is, therefore, obvious that the court of Munsif does not lose initial jurisdiction of suits of a civil nature of which the value does not exceed Rs. 1000/-. However, it is not allowed to exercise that jurisdiction in an area where courts of small causes have been established in all civil suits of less than Rs. 1000/- in valuation.

19. In an area where no court of Munsif has been established but a court of Civil Judge exists, all the regular civil suits will have to be instituted in the Court of Civil Judge On the other hand, if for that very area a Court, of Munsif has been established, the civil suits cognizable by the Munsif shall have to be instituted in his. Court: the Civil Judge will have no jurisdiction to entertain a suit which could have been entertained by the Munsif, because Section 15 C. P. C. provides that

'Every suit shall be instituted in theCourt of the lowest grade competent to tryit.' . .

20. By virtue of Section 15, Civil P. C.the court of Munsif is the only court in which civil suits upto a certain valuation can be filed. If the civil suits exceed that valuation, they have to be filed in the court of the Civil Judge. However, from that it cannot be inferred that the Civil Judge lacks-the initial jurisdiction to entertain cases below a certain valuation. In view of the fact that the law requires that all the suits shall be instituted in the court of the lowest grade competent to try it, a civil suit upto a certain valuation is filed in the court of the Munsif. Rut for that provision it could have been filed in the court of the Civil Judge also. Even with the provision, where the court of Munsif does not exist and a court of Civil Judge exists, all the suits whatever their valuation might be, will have to be filed in the court of the Civil Judge. In such circumstances it cannot be said that the court of the Munsif has exclusive jurisdiction to try civil suits upto a certain valuation.

21. Similar is the effect of Section 18 of the Provincial Small Cause Courts Act.' If a small cause court has not been established for any particular area, all the civil suits, whether or not they might be cognizable by a court of small causes, shall have to be instituted in the court of the Munsil exercising jurisdiction in that area. It is only after a small cause court has been established for that area that all suits cognizable by a court of small causes are to be instituted before the court of small causes and not before the court of the Munsif. The Court of small causes thus becomes a court of 'preferential jurisdiction', and not of 'exclusive jurisdiction'.

22. The marginal heading of Section 10 of the Provincial Small Cause Courts Act shows that the court of small causes exercises exclusive jurisdiction. The meaning of the word 'exclusive' in that heading is ambiguous. From a reading of Section 16 of the said Act it is clear, that the court of small causes is merely a court of preferential and not of exclusive jurisdiction.

23. In this connection the relevant provisions of Sections 3, 5(2), 6 and 9, Civil P. a might be examined.

24. Section 3 provides that-

'For the purposes of this Code, the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and- every Court of Small Causes is subordinate to the High Court and District Court.'

25. Sections 5 and 6 read as follows:--

'5. (1) Where any revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent the State Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.

(2) 'Revenue Court' in Sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.'

26. Section 9 lays down-

'The Courts shall (subject to the provisions herein contained) have jurisdiction to by all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation:-- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.'

27. The initial Jurisdiction to try all suits of a civil nature vests in the civil court. However, that right can be restricted in two ways-- one, by excepting suits of which their cognizance is either expressly or impliedly barred, and, second, as between the civil, courts of different grades by providing the pecuniary jurisdiction of the civil court of the lowest grade.

28. A suit for the recovery of the rent being a suit of a civil nature can be filed in a civil court where there is no court of small causes. However, in an area where a court of small causes exercises jurisdiction, the suit for arrears of rent upto the valuation cognizable by the court of small causes shall have to be filed in the court of small causes and not in the court of the Munsif, which might be the ordinary court to try such suits. In the absence of a court of small causes the court of Munsif has the jurisdiction to entertain and decide such suit. Therefore, it cannot be said that it lacks inherent jurisdiction to try such suits. It only loses jurisdiction when a court of preferential jurisdiction (to wit, a court of small causes) exists.

29. The Court of the Munsif and also the court of small causes are subordinate to the District Court. Under Section 24, Civil P. C. the District Court has got the power to transfer, the case from the court of small causes to the court of the Munsif. It was held in the case of Dulare Lal v. Hazari Lal, AIR 1914 All 229 that where a small cause court suit is transferred from the court of small causes to the court of the Munsif, the decision given by the Munsif will not be appealable but it will not be res-judicata in subsequent suits not cognizable by court of small causes. Again it was held in the case of Shakira Bibi v. Nandan Rai, AIR 1922 All 241 by a single Judge of this Court that the decision given by a Judge, Small Cause Court, will not operate as res judicata in a subsequent suit if the small cause court was riot competent to try the later suit. The same view was taken in the case of Ram Kishun v. Murlidhar Sharma : AIR1960Pat484 by a learned single Judge. It was held in the case of Pateshwari Parshad V. A. S. Gilani that a small cause court is not a court of exclusive jurisdiction, that it is a court of preferential jurisdiction only and that its decision will not bar any subsequent suit which the court of small causes was not competent to try.

In the case of Lala Jageshwar Prasad v. Shyam Behari Lal : AIR1967All125 a learned Judge of this Court, relying oil the case of : [1953]4SCR154 (supra) has held that the court of small causes is a court, of exclusive jurisdiction and therefore, the decision given by the small cause court will operate as res judicata in a subsequent suit as general principles of res judicata could be applied. We have not been able to find in the case of Raj Lakshmi Dasi, : [1953]4SCR154 (supra) any observation which might go to support the proposition that a court of small causes will also be a court of exclusive jurisdiction. The Supreme Court was only pleased to observe that the revenue court and the administrative courts like land acquisition courts will also be courts of exclusive jurisdiction. However, it has nowhere observed in that decision that a small cause court will also be a court of exclusive jurisdiction. In my opinion, and for the reasons given above, a court of small causes is not a court of exclusive jurisdiction but only a court of preferential jurisdiction. With great respect, I do not find it possible to agree with the observation made in : AIR1967All125 (supra) that the court of small causes is a court of exclusive jurisdiction.

30. It was held in the case of Mt. Ladli Begum v. Sunder Lal : AIR1959All764 by a Division Bench of this Court that a court exercising its jurisdiction under Section 33 of the U. P. Agriculturists' Relief Act is a court of exclusive jurisdiction, and, therefore, its decision will operate as res judicata in a subsequent suit. It is not at all necessary for us to decide whether or not the decision in that case was correct, for the simple reason that the facts of that case will hardly apply to the facts of the present case.

31. It was held in the case of Jagannath Bheraji v. Harisingh Kishanji : AIR1969MP56 that where a small cause court exists for any particular area, a decision given in any suit triable by such small cause court Will be a nullity on the ground that the civil court lacked the initial jurisdiction. In my opinion, this does not, if I may say so with, great respect, lay down the correct law.

32. It was held in the case of Newton Hickie v. Official Trustee of East Bengal : AIR1954Cal506 that the decision given by a court of small 'causes in a matter over which it had jurisdiction will bar a subsequent suit relating to the same subject-matter. The reason given was that unless that was done no finality would be attached to a matter decided by a court of small, causes which, in respect of the former proceedings, was a court of competent jurisdiction. With great respect I, am unable to, agree with the principle decided in Newton Hickie's case : AIR1954Cal506 (supra). I have already given my reasons why a court: of small causes is not a court of exclusive jurisdiction but is merely a court of preferential jurisdiction.

33. In my opinion there is no force in Civil Revision No. 619 of 1967, and it must be dismissed.

Connected Civil Revision No. 1269 of 1967.

34. In this connected revision also the same point arises for consideration. The plaintiff had filed a suit for the recovery of Rs. 324 as arrears of rent of a shop for the period 1st October, 1961 to 31st October, 1962, at the rate of Rs. 27 per month. The defendant had contested the suit on the allegation that the rate of rent was Rs. 16 per month. The Judge, Small Cause Court, accepted the plaintiffs contention and decreed the suit at Rs. 27 per month. The revision applications moved before the District Judge and also before the High Court were dismissed. Suit No. 144 of 1965, out of which this revision application arises, was instituted in the year 1965 for the recovery of Rs. 972 as the rent of that very shop at the rate of Rs. 27 per month from 1st December, 1960, to 30th November, 1963. Again the defendant contested the suit on the ground that the rate of rent was Rs. 16 per month only. But his defence was held to be barred by res judicata and the plaintiffs claim was decreed. The first appeal filed against the decision of the Munsif was dismissed. The revision application is directed against the order of the appellate court.

35. I have held in the connected revision No. 619 of 1967 that the court of small causes is not a court of exclusive jurisdiction and that it is a court of preferential jurisdiction only and that its decision will not bar reagitating the same question in any subsequent suit which the court of small causes was not competent to try. The fact that the revision application filed in the High Court against the judgment of the Small Cause Court was dismissed by the High Court will not make any difference. The matter can be reagitated in the civil court and could not be disposed of merely on the ground that the rate of rent had already been decided by the court of small causes.

36. The revision application must, therefore, be allowed, the decree of the trial court as well as of the appellate court must be set aside, and the case should be sent back to the court of the Munsif for disposal in accordance with law in the light of the observations made above.

Sinha, J.

37. I have the advantage of having read the judgments proposed by my learned brothers Khare and Tripathi, JJ. I find myself in agreement with the conclusions arrived at by my brother Khare J. 1 briefly give my reasons for the same.

38. Two points are involved for consideration in this case:

(1) Whether the Courts of Small causes created under the Provincial Small Cause Courts Act are courts of exclusive jurisdiction or they are courts of preferential jurisdiction?

(2) Whether a decision given by 8 Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit later filed in the court of Munsif for the recovery of arrears of rent for a different period and for ejectment. Point No. 1

39. My brother Khare, J. in his proposed judgment has already made a reference to the different provisions contained in the Provincial Small Cause Courts Act and to the relevant decisions to make out that a court of Small Causes is not a court of exclusive jurisdiction, but that it is only a court of preferential jurisdiction. Brother Tripathi, J. has, however, arrived at a contrary conclusion and reliance for that purpose has been placed by him particularly on Sections 15 and 16 of the Provincial Small Cause Courts Act. Section 15 reads thus:

'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.

(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.'

40. A perusal of the section, as reproduced above, would show that it is only an enabling provision and not a disabling provision. In other words, it only says that a Court of Small Causes shall have the jurisdiction to take cognizance of all suits of the nature specified in Sub-clause (2) thereof. It does not say that no other court shall have jurisdiction to take cognizance of such suits. Therefore, so far as Section 15 is concerned, in my view, it cannot form the basis of an argument that a Court of Small Causes is a court of exclusive jurisdiction.

41. Section 16 of the Provincial Small Cause Courts Act reads thus:

'16. 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.'

42. Now, a perusal of Section 16 of the Provincial Small Cause Courts Act, as reproduced above, would show that it starts with the words 'Save as expressly provided by this Act or by any other enactment for the time being in force'. The effect of the above words occurring in Section 16 is that a court other than a Court of Small Causes can also take cognizance of a suit cognizable by a Court of Small Causes if any provision contained in the Provincial Small Cause Courts Act or in any other enactment for the time being in force permits it. Further, as has been pointed out by my brother Khare, J., in places where no Courts of Small Causes exist, the ordinary civil courts shall have the jurisdiction to take cognizance of the suits specified in Section 15(2) of the Act.

43. Aid was sought to be taken before us from the marginal note of Section 16 for the contention that the Courts of Small Causes ;are courts of exclusive jurisdiction. Now, it is a well entrenched principle of interpretation of Statutes that when the language of a section is plain and unambiguous and leads to a certain conclusion, it is not permissible to take the aid of the marginal notes of the section to draw a different conclusion. (See Legislation and Interpretation by Jagdish Swarup, I Edition, Pages 161-164, and Maxwell on Interpretation of Statutes, XII Edition, page 9).

44. Coming t6 the case law on the subject, I need not refer again to those Single Judge decisions which nave already been noticed by my brothers Khare and Tripathi, JJ., in the judgments prepared by them. 1 would, however, add to that list the case of Smt. Anantamoni Dasi v. Bhola Nath : AIR1941Cal104 . In this case, a suit for rent had first been filed in the court of Small Causes. One of the contentions raised in that suit was whether the tenancy was governed by the Bengal Tenancy Act or by the Transfer of Property Act and the Court of Small Causes decided that it was governed by the Transfer of Property Act. In the subsequent suit, it was urged that the decision of the Court of Small Causes on that point operated (sic) (as a bar?-Ed.) on the general principles of res judicata. Aid was sought to be taken for the contention from a Privy Council case. The contention was negatived with the following observation:--

'But, obviously, those decisions cannot be interpreted to mean that the provisions of Section 11 may be flouted or overridden or that the prohibitions or reservations express or implied in that section may be ignored. To adopt such an interpretation would lead to the impossible position where one would have to hold that the provisions of the Code have been abrogated by judicial decision.'

Further on, it was said:

'None of the decisions referred to by the learned advocate for the appellant has laid down that the rule of res judicata could be invoked in a case when the Court which tried the first suit had not the jurisdiction to try the second suit.'

45. For his conclusions, the learned Single Judge placed reliance on two decisions of the Privy Council in Gokul Mandar v. Pudmanund Singh, (1902) 29 Ind App 196 (PC) and Eajah Run Bahadur Singh v. Mt. Lachoo Koer, (1884) 12 Ind App 23 (PC).

46. It would thus appear that so far as Single Judge decisions are concerned, the consensus is in favour of the view that the Court of Small Causes is not a Court of exclusive jurisdiction and that the decision of that Court will not act as res judicata in a subsequent suit not cognizable by it.

47. As for the Bench decisions on this subject, it has been explicitly held in the case that a Court of Small Causes is not a Court of exclusive jurisdiction, but that it is a Court of preferential jurisdiction.

48. Reference was, however, made before us to the Bench decision in case : AIR1954Cal506 in support of the contention that the decisions of a Court of Small Causes also act as res judicata. I have carefully gone through this case and I find that it is clearly distinguishable. In that case, the Court of Small Causes while giving its decision exercised a special jurisdiction under Section 16 of West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which read as follows:--

'Notwithstanding anything contained in any other law, a suit by a landlord against a tenant in which recovery of possession of any premises to which this Act applies claimed, shall lie to the Courts, as set out in Schedule B, and no other Court shall be competent to entertain or try such suit''. (The underlining is by me)

49. The underlined portion in Section 16, as reproduced above, would show that it imposed a blanket ban on the jurisdiction of every other court to take cognizance of suits specified therein. Section 16 of the Provincial Small Cause Courts Act is, however, differently worded. It starts with the words 'Save as expressly provided by this Act or by any other enactment for the time being in force.'

50. Because of the above words, occurring in Section 16 of the Provincial Small Cause Courts Act, the ban imposed by it on taking cognizance of the suits cognizable by the Courts other than Court of Small Causes is not as complete as that imposed by Section 16 of West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The observations made in the case of : AIR1954Cal506 (supra) cannot, therefore, be applicable to the case before us.

51. The only, other Bench decision to which reference had been made before 18 in support of the contention that the Court of Small Causes is a court of exclusive jurisdiction is the case : AIR1969MP56 . A perusal thereof reveals that for the conclusion that the Court of Small Causes it a Court of exclusive jurisdiction, the Hon'ble Judges deciding the case relied on two earlier decisions of their own High Court. No reference has been made to any of other decisions. With respect I confess my inability to agree with the view expressed by the Madhya Pradesh High Court in the said case.

52. Therefore, having given my careful thought to the relevant provisions of law and to the cases cited at the bar, I feel inclined to take the view that the Court of Small Causes is not a Court of exclusive jurisdiction. I am thus in total agreement With my brother Khare, J. on point No. 1. Point No. 2

53. The principle that when both the cases are suits, general principles of res judicata cannot be made applicable to the previous decision finds support, in the first instance, from the case : [1953]4SCR154 . After taking into account various decisions on the Subject it was observed:--

'A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc.'

54. At an early stage, while commenting upon the view taken by the High Court, it was observed by the Supreme Court:

'The learned Judges posed certain questions and then attempted to answer them in view of the limited provisions of Section 11,Civil P. C.. which in terms apply only to suits, forgetting for the moment, if we may say so with respect, that the doctrine of res judicata is based on general principles of jurisprudence,' (The underlining is by me).

55. From the two observations of the Supreme Court reproduced above, a conclusion can be culled to the effect that in the view of the Supreme Court when both the proceedings are suits, it is only Section 11, Civil P. C. which can be made use of and that a plea of res judicata on general principles cannot be invoked in that situation, but, if one of the two proceedings is not a suit or if both the proceedings are not suits then a plea of res judicata can be successfully taken in respect of courts of exclusive or competent jurisdiction.

56. This view further finds support from the case : AIR1962SC633 . Both the cases were suits. The Supreme Court observed:

'Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata.'

57. Another case relevant on the subject is : [1965]2SCR547 .. Reliance was placed on this case for the contention that the principles of res judicata will be applicable in that situation also where both the cases are suits. I have carefully gone through the report of this case and I confess my inability to find anything therein lending support to such a contention. On the contrary, there are certain observations in that report of the case which clearly point to the conclusion that in the opinion of the Supreme Court, principles of res judicata cannot be invoked when both the proceedings are suits. In the case before the Supreme Court, the previous decision was given in writ proceedings and the subsequent proceedings were proceedings in suit. The main point for consideration before the Supreme Court was whether the decision given in writ proceedings could operate as res judicata in the subsequent proceedings in suit. The various observations contained in the judgment should be appreciated in this background.

58. The Supreme Court in this case mainly confined itself to a consideration of the point whether Section 11, Civil P. C. is exhaustive and whether in a subsequent suit, general principles of res judicata can bar the consideration of matters decided in a previous proceeding other than suits. This would be borne out from the following observations (at page 1161):--

'We would limit the consideration of the contentions raised before us to two main points, whether Section 11, Civil P. C. is exhaustive with respect to the application of the principles of res judicata in a suit and whether in a subsequent suit general principles of res judicata can bar the consideration of matters directly in issue and identical with those which had been earlier and after full contest, decided on merits by a competent Court in any other proceeding including proceedings on a writ petition' (The underlining is by me).

Further on, while considering the above point in the context of the arguments raised, the Supreme Court said:

'It appears to us that the reason for the specific provisions of Section 11 is not that the Legislature intended to bar the application of the general principles of res judicata to suits when the previous decision is arrived at in proceedings other than suits. The legislature was providing in the Code of Civil Procedure for the trial of suits over which the Civil Court was given jurisdiction under the provisions of the Code' (The under-lining is by me).

Then, after making a reference to a Privy Council case, the Supreme Court said:

'Whatever the reason may be, the provisions of Section 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principle as of res judicata in such particular circumstances will neither be available to bar a subsequent suit nor will be needed.' (The underlining is by me).

59. In the above observation, the Supreme Court appears to have explicitly said that when both the proceedings are suits, it is only Section 11 which can be made use of and that general principles of res judicata cannot be made use of.

60. I am, therefore, of the view that the observations contained in the case : [1965]2SCR547 . (supra) also lend support to the view that when both the proceedings are suits, the decision in the previous suit cannot operate as res judicata in a subsequent suit on general principles of res judicata,

61. Thus, on the second point also, my conclusion is the same as that of my learned brother Khare, J.

62. In the result, I am of the view that Civil Revision No. 619 of 1967 should fail and Civil Revision No. 1269 of 1967 should succeed.

Tripathi, J.

63. I have read the order proposed by my learned brother Khare, J. I regret my inability to agree.

64. The facts of the case are detailed in the judgment of my learned brother and I do not propose, to recount them.

65. In these revisions, the following questions fall for consideration :--

(1) What is the nature of the jurisdiction exercised by a court of Small Causes. Is it exclusive, or preferential?

(2) Whether the general principles of res judicata can be invoked in the context of a subsequent suit when the conditions requisite for the applicability of Section 11 of the Code of Civil Procedure were not satisfied?

66. There is a divergence of judicial opinion on the first question. In a series of single Judge decisions observations have been made which indicate that a court of small causes cannot be regarded to be such a court as has exclusive jurisdiction to decide a particular matter, and therefore, its decision cannot operate as res judicata for the purposes of other suits not cognizable by it: AIR 1914 All 229, AIR 1922 All 241, AIR 1939 Nag 130 , : AIR1960Pat484 .

67. There is another line of cases in which a contrary view has been expressed. In AIR 1937 Lah 346, AIR 1938 Lah 811 and : AIR1967All125 , which are all single Judge decisions and in : AIR1954Cal506 and : AIR1969MP56 which are Division Bench cases, it has been held that a Court of Small Causes exercises exclusive jurisdiction.

68. I find myself in respectful agreement with the view propounded in the second category of cases for the reasons detailed below:

69. Courts of Small Causes are constituted in accordance with Section 5 of the Provincial Small Cause Courts Act of 1887. Section 15 of the Act provides that,

'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.

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 a particular amount shall be cognizable by a Court of Small Causes.'

Section 16 reads:

'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.'

The marginal note of this section reads:

'Exclusive jurisdiction of Courts of Small Causes.

The provisions of Section 16 are imperative in terms and exclude the jurisdiction of other Courts from the suits cognizable by a Court of Small Causes. In other words, as is evident from the marginal note to this section, the jurisdiction exercised by the Courts of Small Causes is exclusive in nature and there is no apparent reason why it should be held otherwise when the legislature has termed it as exclusive jurisdiction in unequivocal terms.

70. Section 17 of the Act provides a special procedure for such a Court and the provisions of the Code of Civil Procedure have been made applicable only in an amended form as indicated in the aforesaid section. It is true that under Section 28 of the Act, the Court of Small Causes shall be subject to the administrative control of the District Court and to the superintendence of the High Court but that does not derogate from the fact that it is not a link in the regular hierarchy of the Civil Courts as is evident from Section 33 of the Act which provides that:

'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.'

71. It is true that Section 35 of the Act provides for the continuance of proceedings of abolished Courts but that is not in derogation of the special nature of the jurisdiction exercised by the Small Cause Courts. I am, therefore, of opinion that the jurisdiction exercised by the Small Cause Courts is not only preferential but exclusive in nature.

72. On the second question posed above, also, there is a conflict of judicial opinion but in view of the latest decision of the Supreme Court it is not necessary to notice each case on the point.

73. In : AIR1967All28 and in : AIR1967All442 , two Division Benches of this Court have successively held that, where both the proceedings are civil suits, the general principles of res judicata have no application and the case must be confined to the fourcorners of Section 11 of the Code of Civil Procedure.

74. In the case of : [1953]4SCR154 it was, inter alia, observed:

'The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute.'

This case was relied upon by a learned single Judge of this Court in : AIR1967All125 for holding that a decision by the Court of Small Causes will operate as res jiidicata by the application of the general doctrine governing the principles of res judicata.

75. In the case of Ramchandra Rao v. Ramachandra Rao, AIR 1922 PC 80 it was inter alia observed that,

'the importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute. The principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of the Code in this respect.'

76. In Janakirama lyer's case : AIR1962SC633 it was observed that:

'It has been fairly conceded that in terms Section 11 of the Code caunot apply because the present suit is filed by the creditors of the defendants 1 to 6 in their representative character and is conducted as a representative suit, under Order 1, Rule 8, and it cannot be said that defendants 1 to 6, who were plaintiffs in the earlier suit and the creditors who have brought the present suit, are the same parties or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata.'

77. In : [1965]2SCR547 . the decision in Janakirama lyer's case : AIR1962SC633 (supra) was noticed and explained by Hon'ble Raghubar Dayal, J., who was delivering the majority judgment, and it was, inter alia, held that:

'The judgment of a Court of exclusive jurisdiction is to be treated as res judicata upon the same matter in another Court which will not be a Court having jurisdiction over that matter. .....'

and further that,

'the provisions of Section 11, Civil P. C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.'

78. In this case the minority opinion was expressed by Hon'ble Mr. Justice Subba Rao who held that the observations in Janakirama lyer's case : AIR1962SC633 that.

'where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provision of Section 11 and no other',

correctly represented the law on the subject. In view of the majority decision in the aforesaid case it is obvious that on the general principles of res judicata a previous decision on a matter in controversy, decided after full contest, will operate as res Judicata in a subsequent regular suit irrespective of the fact whether the Court deciding the matter formerly had or had not been competent to decide the subsequent suit.

79. The dispute between the parties in the Court of Small Causes was about the rate of rent. That dispute had been determined by that Court in a fair manner. In the subsequent suit out of which the revision applications arise, the plaintiffs, while praying for ejectment of the defendants, claimed rent for the period preceding the second suit on a different rate. In these circumstances the question arose whether the decision given by the Judge Small Cause Court about the rate of the rent will operate as res judicata in the subsequent suit filed before the Munsif for arrears of rent and ejectment. In the light of the principle laid down by the Supreme Court in the case of Gulabchand Chhotalal, : [1965]2SCR547 . (Supra), I am of opinion that the decision of the Judge Small Cause Court shall operate as res judicata on the question of the rate of rent both because it is a Court of exclusive jurisdiction and also on the basis of the general principles of res judicata.

80. I would, therefore, allow Civil Revision No. 619 of 1967, set aside the impugned order of the Munsif, but I will dismiss the connected Civil Revision No. 1269 of 1967.

BY THE COURT (in accordance with the Opinion of the majority):

81. Civil Revision No. 619 of 1967 is dismissed.

82. Civil Revision No. 1269 of 1967 is allowed and it is directed that the case be sent back to the court of learned Munsif for decision in accordance with law in the light of the observations made by this Court.

83. We make no order as to costs in any of these revisions.


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