Skip to content


M.P. Mishra Vs. Sangam Lal Agarwal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 414 of 1975
Judge
Reported inAIR1975All425
ActsProvincial Small Cause Courts Act, 1887 - Sections 15, 15(3) and 17; Uttar Pradesh Provincial Small Cause Courts (Amendment) Act; Bengal Agra and Assam Civil Courts Act, 1887 - Sections 25 and 25(4)
AppellantM.P. Mishra
RespondentSangam Lal Agarwal
Appellant AdvocateA.N. Bhargava and ;G.P. Bhargava, Advs.
Respondent AdvocateC.P. Srivastava, Adv.
DispositionRevision dismissed
Excerpt:
.....- small causes court -section 17 of provincial small cause courts act, 1887 - proviso to section 17 regarding setting aside of decree applies not only to money decrees but also to decrees for eviction and claim for outstanding rent. (ii) pecuniary jurisdiction -section 15 (3) and provisio to section 17 of the provincial small cause courts act, 1887 (as amended in u. p.) - the pecuniary jurisdiction applies to courts specially set up as small cause courts - not to civil courts who are given powers of small cause courts. - - in section 25(2), it is clearly stated that the district judge or the additional district judge will have the jurisdiction of a judge of a court of small causes for the trial of the aforesaid variety of suits irrespective of their value. but as it is clearly..........article 4 of the second schedule of the said act and in section 25 of the bengal, agra and assam civil courts act. section 15 before the amendment effected by the civil laws amendment act of 1968 stood as under:--'15 (1) a court of small causes shall not take cognizance of the suits specified in the second schedule as suits exceptedfrom 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.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This revision is directed against an order passed by the 4th Additional District Judge rejecting an application for setting aside the ex parte decree passed in Original Suit No. 81 of 1974. The said suit was a suit for the eviction of the tenant by the landlord after determining the former's tenancy. Arrears of rent and damages etc. were also claimed in the suit. The court below rejected the application on the ground that there was no compliance with the requirements of Section 17 of the Provincial Small Cause Courts Act and, therefore, the application under Order 9, Rule 13, C.P.C. for setting aside the ex parte decree was not maintainable. The learned counsel for the applicant has contended that in a suit for eviction Section 17 of the said Act will not get attracted. In my opinion, this contention has no force. Section 17(1) reads as follows:--

'17. (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided bythat Code or by this Act, the procedurefollowed 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.'

In my opinion, there is nothing to show that it is only the money decree which will stand covered under the said proviso. In any case, in the facts of the suit in question the decree was for arrears of rent also and that part of the decree even on the basis of the argument of the learned counsel for the applicant would be covered by the said proviso. Therefore, the contention of learned counsel that the court below was wrong in holding that Section 17 was attracted to the facts of the case is not correct.

2. The next contention is that the court below i.e., the 4th Additional District Judge had no jurisdiction to entertain the suit inasmuch as the valuation of the suit was admittedly more than Rs. 5,000. The suit was filed in the court of the District Judge, Allahabad who transferred it to the court of the 4th Additional District Judge and the 4th Additional District Judge passed the ex parte decree. Counsel has in this connection drawn attention to Section 15(3) of the Provincial Small Cause Courts Act which after its amendment at present lays down that in respect of suits between lessor and lessee in respect of building the State Government may direct that such suits up to the value of Rs. 5,000 shall be cognizable by a court of Small Causes. Section 16 of the same Act gives exclusive jurisdiction to the court of Small Causes to try the suits which are cognizable by it. Hence it is contended that the District Judge or the Additional District Judge had no jurisdiction to entertain the suit in question.

3. It is necessary to set out the changes which have been effected in Section 15 of the Provincial Small Cause Courts Act and in Article 4 of the Second Schedule of the said Act and in Section 25 of the Bengal, Agra and Assam Civil Courts Act. Section 15 before the amendment effected by the Civil Laws Amendment Act of 1968 stood as under:--

'15 (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits exceptedfrom 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.'

The said Act amended Section 15(2) by substituting Rs. 1,000 for Rs. 500 in Section 15(2). In Section 15(3) the expression 'one thousand rupees' was replaced by the expression 'two thousand rupees'. 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. Now Section 15(2) and (3) stood as follows:

'(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 one thousand 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 two thousand rupees shall be cognizable by a court of Small Causes mentioned in the order.'

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 subsection to two thousand rupees shall be construed as a reference to five thousand rupees.

Explanation.-- For the purposes of this sub-section, the expression 'building' has the same meaning as in Article 4 inthe Second Schedule.'

4. Section 25 of the Bengal, Agra and Assam Civil Courts Act before its amendment in 1968 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, up to 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.'

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 exceeding 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, 1837, 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 references 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 subsection shall be inserted, namely,

(2) The State Government may by notification in the Official Gazette, confer upon any District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Causes 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.'

5. 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.

6. 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 theProvincial 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 exceptions specified in the Second Schedule to the first mentioned Act, and to the Provisions of any enactment for the time being in force, all suite referred to in the proviso to the said subsection 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, KanDur, Allahabad, Varanasi, Agra, Lucknow, and the Court of additional Judge, Small Causes, Lucknow.'

7. The State Government issued another notification on the same day i.e. Sep. 22, 1972 dated September 22, 1972, published in Uttar Pradesh Gazette, Part I, dated October 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.'

8. 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).'

9. 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.'

10. Lastly, it may be mentioned that Article 4 in the Second Schedule of the Provincial Small Cause Courts Act was amended by the U.P Civil Laws Amendment Act of 1972 (U.P. Act No. 37 of 1972). Originally Article 4 stood as follows :

'a suit for the possession of immovable property or for the recovery of an interest in such property.'' After its amendment the Article stands 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.'

11. The amendments which were effected by the U.P. Civil Laws Amendment Act of 1972 were motivated by a consideration that the suits for eviction filed by the lessors against the lessees of buildings took an unduly long time to be finally decided and, therefore, it was thought advisable that such suits should be tried as suits of the nature of small causes suits so that they could be disposed of expeditiously and there could be no appeal against the decision of the trial Court. This change was sought to be brought about by amending Article 4 of the Second Schedule of the Provincial Small Cause Courts Act so that 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 the buildings after such determination of lease was no longer excepted from the cognizance of the court of small causes. Such suits, therefore, became triable bythe Courts of Judge, Small Causes and by virtue of Section 16 of the Provincial Small Cause Courts Act they became exclusively triable by such courts. Of course, the limitation on account of the valuation of the suit remained, This limitation was contained in Section 15(2) and in Section 15(3). Ordinarily, the jurisdiction of the Small Causes Court stretched up to Rs. 1,000 under Section 15(2) of the Provincial Small Cause Courts Act. But under Section 15(3) the State Government was empowered to raise the pecuniary limit of such jurisdiction to Rs. 5,000 in respect of suits between the lessors and the lessees for eviction of the latter after the determination of their tenancy from buildings. This result was brought about by the addition of the proviso to Section 15(3) by the U.P. Civil Laws Amendment Act, 1972. As has been stated, the State Government issued a Notification dated Sept. 22, 1972, whereby the Court of Judge, Small Causes situated at Bareilly, Moradabad, Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad, Varanasi, Agra, Lucknow and the Court of Additional Judge, Small Causes, Lucknow were empowered to take cognizance of the suits between the lessors and the lessees for the latter's eviction from buildings whose value does not exceed Rs. 5,000. In view of the addition of Sub-section (2) to Section 25 of the Bengal, Agra and Assam Civil Courts Act it became possible to confer upon the District Judge or Additional District Judge the jurisdiction of a Judge of a Court of Small Causes for the trial of suits for eviction of lessees and for recovery of rents and damages (disregarding some minor aspects of the matter). Such a jurisdiction has been conferred upon the District Judges and the Additional District Judges by the aforesaid Notification dated 25-10-1972 issued by this Court.

12. In view of the aforesaid amendments, in the district of Allahabad (from where this revision has arisen) the Court of Judge of Small Causes had a jurisdiction to take cognizance of the suits between the lessors and the lessees in respect of the latter's eviction from buildings provided the valuation of such suits does not exceed Rs. 5,000. If the valuation exceeds Rs. 5,000 then the court of the District Judge and the Additional District Judge who have been empowered to take cognizance of such suits can try the same in the manner in which suits of the Small Cause Court nature are tried. In Section 25(2), it is clearly stated that the District Judge or the Additional District Judge will have the jurisdiction of a Judge of a Court of Small Causes for the trial of the aforesaid variety of suits irrespective of their value. In my view, if the contention on behalf of the applicant were to be accepted then it will be doing violence to the said expression. Any interpretation which seeks to put a limitation on the valuation of the Suits cognizable by the District Judge or the Additional District Judge will be contrary to the clear expression used in Sub-section (2) of Section 25 'irrespective of their value'. Learned counsel for the applicant placed reliance on the pronouncement of the Supreme Court reported in Raja Soap Factory v. S. P. Shantharaj : [1965]2SCR800 . In my view, the said pronouncement does not support the contention on behalf of the applicant. Counsel also sought to support his contention by inviting my attention to Sub-section (4) added to Section 25 by the U.P. Civil Laws Amendment Act of 1973. The said Sub-section (4) has been reproduced above and in the concluding portion thereof the words used are '......... all suits referredto in Sub-section (2) shall be cognizable by court of Small Causes'. It is urged that if the legislative intention were that the District Judge or the Additional District Judge on whom the powers of a Judge of a Court of Small Causes have been conferred should take cognizance of the aforesaid variety of suits between the lessor and the lessee then in the concluding portion of Sub-section (4) the legislature would not have used the words 'Court of Small Causes' but would have used the expression 'District Judge or Additional District Judge,' counsel contended that there is a distinction between a Court of Small Causes established under the Provincial Small Causes Court and officers who are invested with the powers of a Judge of Court of Small Causes. In my opinion this contention is not valid. In Mt. Sukha v. Raghunath (AIR 1917 All 62); D. D. Vidyarthi v. Ram Pearey Lal : AIR1935All690 ; Badal Chandra v. Srikrishna Dey : AIR1929Cal354 ; Bhagwan Das v. Keshwar Lal (AIR 1923 Pat 49) and Narayan Sitaram v. Bhagu, ((1907) ILR 31 Bom 314) it has been laid down that the Courts on which Small Cause Court's powers are conferred shall also be deemed to be Courts of Small Causes. Section 4 of the Provincial Small Cause Courts Act lays down as under:--

'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.'

It is clear that the expression 'Court of Small Causes' has to be interpreted in the context in which the said expression is used. In my view, the expression 'Courtof Small Causes' used at the end of subsection (4) of Section 25 really means and refers to a District Judge or Additional District Judge on whom the jurisdiction of a Judge of Small Causes has been conferred.

13. It was next contended that without an amendment of Section 15 of the Provincial Small Cause Courts Act a mere amendment of Section 25 of the Bengal, Agra and Assam Civil Courts Act could not serve the legislative intention Again, I do not see any force in this contention. The purpose of Section 15(3) of the Provincial Small Cause Courts Act is different from the purpose underlying Section 25 of the Bengal, Agra and Assam Civil Courts Act. Section 15(3) enables the State Government to raise the pecuniary jurisdiction of a Court of Small Causes. Normally the State Government can raise such limit to try suits whose value does not exceed Rs. 2,000 but in the case of suits between the lessor and the lessee of the aforesaid variety such enhancement can be up to the limit of Rs. 5,000. It should be clear that Section 15(3) has a reference to the regular Court pf Small Causes established in a District. Section 25 of the Bengal, Agra and Assam Civil Courts Act enables the State Government (and after delegation the High Court) to confer upon any Civil Judge or Munsif or upon a District Judge or Additional District Judge the jurisdiction of a Judge of Small Causes. Whereas in Section 25(1) there are pecuniary limits in the case of Civil Judges and Munsifs, in Section 15(2) there are no such pecuniary limits in respect of the District Judge or the Additional District Judge. If under Section 25 the State Government or the High Court is empowered to confer on special officers the jurisdiction of a Judge of Court of Small Causes there is no reason to hold that such conferment must be restricted to the pecuniary jurisdiction of a Court of Small Causes. Admittedly, in Section 25 itself there is no such restriction about the pecuniary jurisdiction. Section 15(2) of the Provincial Small Cause Courts Act has been made in explicit terms 'subject to the provisions of any enactment for the time being in force'. It is this subsection which puts a limit on the pecuniary jurisdiction of the Courts of Small Causes. But as it is clearly stated that the provision is subject to the provisions of any other enactment, therefore, it is possible for the State Government acting under the provisions of Section 25 of the Bengal, Agra, and Assam Civil Courts Act, 1887, to confer a higher pecuniary jurisdiction on the District Judge and the Additional District Judge.

14. In my view, therefore, the contentions raised on behalf of the applicant have no force and the same stand rejected.

15. In the end learned counsel made a prayer that in view of the importance of the controversy involved in the revision the matter should be referred to a Division Bench. As I do not entertain any doubt about the interpretation to be placed on the relevant provisions, I have not found it necessary to accede to the said prayer of the learned counsel for the applicant.

16. The revision is accordingly dismissed, but in the facts of the case I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //