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Madan Lal Vs. Ram Swarup and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 167 of 1977
Judge
Reported inAIR1978All542
ActsUttar Pradesh Civil Law Amendment Act, 1972 - Sections 9; ;Provincial Small Cause Courts Act, 1887 - Sections 32; Constitution of India - Article 254(2)
AppellantMadan Lal
RespondentRam Swarup and anr.
DispositionAppeal allowed
Excerpt:
..... suit instituted before amending act came into force - recording of evidence had not started - jurisdiction of small cause court conferred on him - thereafter munsif had jurisdiction to try suit. - - 1. this appeal on behalf of the defendant, unlike other commonplace appeals of a set pattern, arising out of an order refusing to set aside an ex parte, decree assumes importance on account of an interesting question of law raised by the counsel for the appellant. his contention appears to be well-founded. it is also not disputed that the recording of oral evidence for any party had not commenced or concluded before 20-9-1972. there is also no controversy that the munsif in whose court the suit was instituted did not enjoy the powers of small causes court prior to 25-10-1972 which is..........no. 526 dated 25-10-1972, the powers of small cause court were conferred on munsifs and civil judges, the notification reads thus :'in exercise of the powers conferred by sub-section (1) of section 25 of the bengal, agra and assam civil courts act, 1887 (act, xii of 1887) as amended by the u. p. civil laws amendment act, 1972 (u. p. act no. 37 of 1972), delegated by the state government under sub-section (3) of the said section 25 to the high court, and in supersession of all earlier notifications issued in this behalf, 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.....
Judgment:

M.N. Shukla, J.

1. This appeal on behalf of the defendant, unlike other commonplace appeals of a set pattern, arising out of an order refusing to set aside an ex parte, decree assumes importance on account of an interesting question of law raised by the counsel for the appellant.

2. The short facts of the case are that the respondent filed a suit for ejectment and recovery of Rs. 823.33 p. as arrears of rent against the appellant on 18-12-1970 in the court of Musif Lansdowne. By virtue of a notification, No. 526 dated 25-10-1972, the powers of Small Cause Court were conferred on Munsifs and Civil Judges, The notification reads thus :

'In exercise of the powers conferred by Sub-section (1) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act, XII of 1887) as amended by the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972), delegated by the State Government under Sub-section (3) of the said Section 25 to the High Court, and in supersession of all earlier notifications issued in this behalf, 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 up to 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, XII of 1887, cognizable by a Court of Small Causes--

(a) Civil Judges.... Of any value not exceeding fivethousand rupees:

(b) Munsifs.... Of any value not exceedingrupees one thousand:

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

(a) Civil Judges.... Of any value not exceeding onethousand rupees:

(b) Munsifs.... Of any value not exceeding fivehundred rupees:

......

By order ofthe Court

B. C. Jauhari

Registrar.'

On 5-2-1973 the above suit was transferred to the court of the Civil Judge of Tehri Garhwal which is a separate district. It will be pertinent to note that Lansdowne where the suit had been instituted is situate in the district of Pauri Garhwal. On 31-3-1976, the suit was transferred to the court of the District Judge, Pauri Garhwal. The suit was fixed for final hearing on 14-8-1976 before the District Judge, Pauri Garhwal. The defendant was contesting the suit and had filed a written statement. It is alleged that his counsel could not reach the court on the date fixed owing to breach in the road leading to the court and that he came to know of the ex parte decree some days afterwards. An application for setting aside the ex parte decree was moved on 27-9-1976 which was dismissed by the learned Judge. Aggrieved by that order the defendant has come up in appeal to this Court.

3. The contention on behalf of the appellant is that sufficient explanation had been offered on behalf of the appellant for the absence of his counsel on the date of hearing and the learned Judge acted arbitrarily in rejecting the application for setting aside the ex parte decree. It is, however, not necessary to express any opinion on the merits of this application inasmuch as Sri Rishi Ram appearing on behalf of the appellant has raised a more formidable objection which if accepted, goes to the root of the matter. His contention is that the suit could not have been transferred to the District Judge Pauri Garhwal and the Munsif Lansdowne in whose court it was instituted and where it was originally pending had exclusive jurisdiction to try the same. For this reason, according to his submission, the impugned order was apparently void, illegal and without jurisdiction. His contention appears to be well-founded.

4. The U. P. Civil Laws Amendment Act (Act 37 of 1972) came into force on 20-9-1972. Section 9 of this Act runs as follows:

'Transitory provision ............ Any suit of the nature referred to in the proviso to Sub-section (1) and Sub-section (2) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887 (whether its value exceeds two thousand rupees, or as the case may be one thousand rupees or not) or the proviso to Sub-section (3) of Section 15 of the Provincial Small Cause Courts Act, 1887, instituted before the date of commencement of this Act in any court other than a Court of Small Causes or a Court of Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes and pending in that court immediately before the said date, not being a suit in which the recording of oral evidence for any party has commenced or concluded before the said date, shall, upon the conferment of jurisdiction or enhanced pecuniary jurisdiction on a Civil Judge, Munsif, District Judge, or Additional District Judge or on a Court of Small Causes under the said provisions, stand transferred to such Court and shall be decided by that Court.'

In the case of 'Kailash Chand v. Lalta Prasad' (1975 All WC 653) : (AIR 1976 All 232) G.C. Mathur, J. succinctly laid down the five essential conditions on the fulfilment of which Section 9 would be attracted (at p. 235 of AIR) :--

'1. It was a suit by a 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 :

2. The suit was instituted before 20-9-1972, the date of commencement of Act, 37 of 1972.

3. It was instituted in a Court other than a Court of Small Causes or a Court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes.;

4. It was pending in that Court immediately before 20-9-1972; and

5. The recording of oral evidence for any party had not commenced or concluded before 20-9-1972.'

Applying the above test to the facts of the present case, it is manifest that the provisions of Section 9 were fully attracted. It was a suit by a lessor for the eviction of the lessee from a shop after the determination of the lease and for the recovery of rent. It had been instituted before 20th September, 1972 and was pending in the Court immediately before that date. It is also not disputed that the recording of oral evidence for any party had not commenced or concluded before 20-9-1972. There is also no controversy that the Munsif in whose court the suit was instituted did not enjoy the powers of Small Causes Court prior to 25-10-1972 which is the date of the notification by which these powers were conferred. The inevitable effect of Section 9, would be that a suit for ejectment and arrears of rent etc. instituted in the Munsif's court on the original side who was not invested with the jurisdiction of Small Cause Court shall, upon the conferment of that jurisdiction on him, stand transferred to his own court. Naturally the Munsif will have jurisdiction to try the suit because the other requirements of Section 9, are satisfied. It follows that the suit could not have been transferred to the court of the District Judge who eventually disposed of the same by passing an ex parte decree.

5. The same conclusion is reinforced by a consideration of the relevant contents of notification No. 526 dated 25-10-1972. In the scheme of this notification District Judge finds no place, and the intention seems to be that where there is a Civil Judge enjoying the powers of Small Cause Court he alone would try such suits, but if there is no Civil Judge, then of course, the District Judge would have the jurisdiction to try such suits. This will be borne out by another notification, No. 525, of the same date. By this notification jurisdiction of a Judge of a Court of Small Causes for the trial of all suits irrespective of their value, which were for eviction from a building or for recovery of rent or for compensation for use and occupation, was conferred upon all District Judges and Additional District Judges. As I have already pointed out, the second notification, No. 526, was also issued on the same date and its contents have been set out in the earlier part of this judgment. These two notifications have to be read together and reconciled. Notification No. 526 is in supersession of the earlier notification only in the sense that where Civil Judges are available in the District concerned, then the suits of a value not exceeding Rs. 5000 shall be tried by them alone and the District Judge cannot arrogate to himself the jurisdiction to try the same. That these two notifications must be read as supplementing each other and should be harmoniously interpreted is clear also from the observation made by G.C. Mathur, J. in the case of Kailash Chand (AIR 1976 All 232) (supra) to the effect (at p. 236 of AIR) :--

'It appears that at Fatehpur there is no court of Civil Judge,. Therefore, the suit would be cognizable by the District Judge or by an Additional District Judge. The District Judge, Fatehpur, was not right in returning the suit to the Munsif for trial.'

Learned counsel for the respondent placed reliance on Section 32 of the Provincial Small Cause Courts Act (Act IX of 1887), which reads as follows:

'1. So much of the Chapters III and IV as relate 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 order 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 commenced in those courts before the date on which they were invested with that jurisdiction.'

The contention of the learned counsel for the respondents is that since in the instant case the plaintiff's suit was instituted on 18-12-1970 and the notification No. 526 was issued on 25-10-1972, therefore by virtue of Sub-section (2) of Section 32 of the Provincial Small Cause Courts Act (the court) was bound to try the suit on the original side and not as a Small Cause Court suit. According to him there was a conflict between the provisions of Section 9 of the U. P. Civil Laws Amendment Act, and Section 32(2) of the Provincial Small Cause Courts, Act. I am unable to accede to this contention and I think that this conflict can satisfactorily be resolved by a recourse to Clause (2) of Article 254 of the Constitution which reads :

'(2) Where a law made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provisions repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending varying or replealing the law so made by the Legislature of the State.'

My attention was drawn to entry No. 46 of List III of the Seventh Schedule of the Constitution which mentions 'Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.' Whereas the Provincial Small Cause Courts Act is a Central Act, the U. P. Civil Laws Amendment Act is a local Act and both of them impinge on a subject which is included in the Concurrent List. The U. P. Civil Laws Amendment Act was reserved for the consideration of the President and received his assent on September, 12, 1972. Therefore, in case of any repugnancy, this Act must prevail over any Central Act in the State of U. P In that view of the matter, Section 32(2) of the Provincial Small Cause Courts Act is excluded and could not be attracted to the facts of the present case.

6. For these reasons I hold that the orders dated 14-8-1976 and 2-4-1977 passed by the District Judge, Pauri Garhwal, were nullities. They are, therefore set aside, and this appeal is allowed, and the Munsif, Lansdowne is ordered to restore the suit to its original number and proceed to try the same as a Small Cause Court Suit. In the circumstances of the case, no order is made as to costs.


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