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Jagannath Bheraji Vs. Harisingh Kishanji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 462 of 1967
Judge
Reported inAIR1969MP56
ActsProvincial Small Cause Courts Act, 1887 - Sections 15, 16 and 23; Code of Civil Procedure (CPC) , 1908 - Sections 23(1), 24(4), 107 and 115 - Order 7, Rule 10; Code of Civil Procedure (CPC) , 1882 - Sections 57 and 57(2)
AppellantJagannath Bheraji
RespondentHarisingh Kishanji and ors.
Appellant AdvocateY.I. Mehta, Adv.
Respondent AdvocateR.G. Waghmare, Adv.
Cases ReferredJodha v. Maganlal
Excerpt:
.....the plaint, that court shall be deemed to have been unable to entertain the suit by reason of a cause of nature like to that of defect of jurisdiction. as has been pointed out earlier, if a regular court has no jurisdiction to try a small cause suit in the circumstances mentioned in section 16 then its decision is clearly a nullity and objection as to the jurisdiction of the court can be raised any time......is-'where a civil judge second class having only limited power to try small cause suits tries a suit of small cause nature on the regular side without objection as to his jurisdiction by the defendant, is the decision a nullity when the suit could have been tried as a small cause suit by another court namely the court of additional district judge?'the learned single judge thought it necessary to make this reference because of a conflict in the decisions of this court in mukund v. firm kashilal, cr no. 178 of 1965 d/- 29-9-1965 (mp) and manakchand v. rajmal, cr no. 377 of 1966 d/- 29-3-1967 (mp). in mukund's case, cr no. 178 of 1965 d/- 29-9-1965 (mp) (supra) one of us (sen j.) expressed the view that 'if there exists a court who has power to hear the suit under small cause courts act.....
Judgment:

P.V. Dixit, C.J.

1. This revision petition has come up before us on a reference made by Newaskar J., before whom it first came up for hearing. The question, which has been referred to us for decision, is-

'Where a Civil Judge Second Class having only limited power to try Small Cause suits tries a suit of Small Cause nature on the regular side without objection as to his jurisdiction by the defendant, is the decision a nullity when the suit could have been tried as a Small Cause suit by another Court namely the Court of Additional District Judge?'

The learned Single Judge thought it necessary to make this reference because of a conflict in the decisions of this Court in Mukund v. Firm Kashilal, CR No. 178 of 1965 D/- 29-9-1965 (MP) and Manakchand v. Rajmal, CR No. 377 of 1966 D/- 29-3-1967 (MP). In Mukund's case, CR No. 178 of 1965 D/- 29-9-1965 (MP) (Supra) one of us (Sen J.) expressed the view that

'if there exists a Court who has power to hear the suit under Small Cause Courts Act and if the suit is instituted in a Civil Court that Court will have no jurisdiction to hear the suit of a small cause nature'.

In the case of Manakchand, CR No. 377 of 1966 D/- 29-3-1967 (MP) (Supra) Krishnan J. has held that there is no inherent lack of jurisdiction if a court, which is otherwise competent, tries a suit in breach of Section 16 of the Provincial Small Cause Courts Act, 1887; and that if the point of jurisdiction is not raised by the defendant in the court below, he cannot be permitted to raise the objection for the first time in revision.

2. The material facts are that the non-applicants filed a suit in the Court of the Civil Judge, Second Class. Hatod, for recovery of Rs. 764.80 from the petitioner. The value of the suit exceeded the pecuniary limit of suits which were cognizable by the Civil Judge as Court of Small Causes. The learned Civil Judge tried the suit as an ordinary suit in his ordinary jurisdiction and gave to the plaintiffs a decree for Rs. 697.80 besides costs. The defendant-applicant then filed an appeal in the Court of the Additional District Judge, Indore, contending that the Civil Judge, Second Class, had no jurisdiction to try the suit as an ordinary suit as the suit was cognizable by a court of Small Causes and when it was filed there already existed a Court of Small Causes having jurisdiction to try the suit as a small cause suit, namely, the Court of the Additional District Judge, Indore, empowered under Section 9 of the M. P. Civil Courts Act, 1958. The learned appellate Judge dismissed the appeal relying on the decision of this Court in CR No. 377 of 1966 D/- 29-3-1967 (MP) (supra). He also reached the conclusion that the decision of the Civil Judge, Second Class, Hatod, was right on merits. The defendant appellant then filed this revision petition.

3. The answer to the question placed before us for decision turns solely on the construction of Section 16 of the Provincial Small Cause Courts Act. That provision lays down that-

'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 betried by any other court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.'

Section 16 is imperative in its terms. Its language is plain enough. That provision means that if a suit is cognizable ay a Court of Small Causes, and if at the tune of the institution of the suit there is a Small Cause Court having jurisdiction to try it, then the suit shall not be tried by any other court having jurisdiction within the local limits of the jurisdiction of the Small Cause Court It is only when there is at the time of the institution of the suit no Court of Small' Causes having jurisdiction to try the suit that a suit can be tried by any other court having jurisdiction as an ordinary suit. Thus Section 16 takes away jurisdiction of the regular court to try a suit of small cause nature as an ordinary suit if there is at the time of the institution a Court of Small Causes having jurisdiction to try the suit as a small cause suit. The words 'shall not be tried by any other court having jurisdiction within the local limits. ..' mean that a regular court is incompetent to try a suit cognizable by a Court of Small Causes if at the time of the institution of the suit there is a Court of Small Causes having jurisdiction to try it. This is the view, which has been taken by both of us in two cases, namely, by Sen J. in CR No. 178 of 1965 D/- 29-9-1965 (MP) (Supra) and by the Chief Justice in State v. Saudansingh, MCC No. 27 of 1967 D/-1-9-1967 (MP). This view is also supported by the decision of the Andhra Pradesh High Court in Venkata Subbaramiah v. K. Hari Rao, AIR 1957 Andh Pra 133 and by other cases to which a reference will be made presently.

4. Now, it is elementary that, if a court has no authority to decide a matter, then its decision thereon is a nullity. Further, it is now firmly settled by numerous authorities that an objection as to the court's jurisdiction or authority to try a suit can be raised at any time if the defect of jurisdiction is admitted or proved or manifest. Where a court has no jurisdiction to try a suit of a particular nature, neither the consent of the parties nor their failure to raise objection as to jurisdiction can give jurisdiction to that Court. In this connection, it would be sufficient to refer to Abdur Rahman v. Bharma Budhya, AIR 1927 Bom 663 (2); Municipal, Board Benares v. Shambhu Nath, AIR 1928 All 38; Ramasamy Chittiar v. R. G. Orr. (1902) ILR 26 Mad 176; Nandlal v. Narayan, AIR 1920 Nag 39; Chockiah Thevar v. Shanmugasundaram, AIR 1956 Mad 610 at p. 612. If, therefore, a suit is tried by a regular court in contravention of Section 16 of the Act, then even if no objection to the jurisdiction of the court is taken during the trial that objection can be raised in an appeal from the final decision of the regular court as also in a revision petition to this Court against the decision of the appellate Court.

5. Shri Waghmare, learned counsel appearing for the plaintiff-opponents, however, urged that Section 16 did not deprive the regular courts altogether of jurisdiction in a suit cognizable by a Court of Small Causes; and that if there was a Court of Small Causes having jurisdiction to try the suit, then Section 16 merely prevented the regular Court from trying the suit as a small cause suit but did not prohibit the trial of the suit as an ordinary suit by the regular court. It was said that if a suit cognizable by a Court of Small Causes was tried by a regular court as an ordinary suit then the decision of the regular court was not a nullity. This construction of Section 16 cannot be accepted. The argument put forward by the learned counsel involves reading into Section 16 words and expression which are not to be found therein. There is no justification whatsoever for reading the words 'shall not be tried by any other court having jurisdiction' as meaning 'shall not be tried by any other court having jurisdiction as a small cause suit but can be tried by any other court having jurisdiction as an ordinary, suit'. No doubt, Section 16 has not the effect of making suits cognizable by a Court of Small Causes triable only by a Court of Small Causes and no other courts so that if there is no Court or Small Causes having jurisdiction, then the suit cannot be tried at all. It does not deprive the regular courts altogether of jurisdiction in all circumstances in suits cognizable by a Court of Small Causes, The deprivation of jurisdiction of the regular Court is only when at the time of the institution of a suit of small cause nature there is a Court of Small Causes having jurisdiction to try it. But from the mere fact that a regular court is not altogether deprived of jurisdiction by Section 16, it does not at all follow that even if it is deprived of jurisdiction in the circumstances mentioned in Section 16 its decision in a suit, which it was incompetent to try, is not a nullity.

6. Learned counsel for the opponents referred us to a decision of the Bombay High Court in Jodha v. Maganlal, AIR 1930 Bom 80, where it has been held that failure to comply with Section 16 is merely a defect in procedure in proceeding in a court other that the Small Cause Court having jurisdiction to try the suit; but this does not mean that the Court has no jurisdiction to try the suit. That was a case in which a suitfor recovery of rent was filed in the court of Subordinate Judge who was invested with Small Cause Court's powers. He heard the suit as an ordinary suit and transferred it to the Joint Subordinate Judge who had no small cause powers. The learned Judge passed a decree in the tenant's favour. In revision, the Bombay High Court held that the suit should be retried in a proper court as the trial of the suit as an ordinary suit had prejudiced the parties. It was after having reached the conclusion that the suit should be retried by a Small Cause Court having jurisdiction that the learned Judges of the Bombay High Court made the observation that failure to comply with Section 16 was merely a defect in procedure. It is thus plain that what has been said in the Bombay decision with regard to Section 16 is obiter.

7. The expression 'Save as expressly provided by this Act or by any other enactment for the time being in force', with which Section 16 of the Provincial Small Cause Courts Act begins, only emphasizes the fact that if a regular court by error tries a suit which is of small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits, then the proceedings of such court are without jurisdiction and a nullity. That expression means that in the absence of an express provision in the Provincial Small Cause Courts Act or any other enactment for the time being in force, a regular court has no jurisdiction to try a small cause suit, whether as an ordinary suit or as a small cause suit. Such an express provision is to be found in Section 23 of the Provincial Small Cause Courts Act which gives jurisdiction to ordinary courts to try a small cause suit as an ordinary suit removing the bar contained in Section 16 for the trial of a small cause suit by a court of ordinary jurisdiction. It is noteworthy that when a small Cause Court returns a plaint under Sub-section (1) of Section 23 it has to comply with the provisions of Order 7 Rule 10 C. P. C. (corresponding to section 57 of the Civil Procedure Code, 1882). Subsection (2) also says that when the Small Cause Court returns the plaint, that Court shall be deemed to have been unable to entertain the suit by reason of a cause of nature like to that of defect of jurisdiction. If Section 16 had the effect of making an ordinary court competent to try a suit of a small cause nature as an ordinary suit, then it would not have been necessary to incorporate Section 23 in the Provincial Small Cause Courts Act. Again, Section 24(4) C. P. C. is also a provision contemplated by the expression 'Save as expressly provided by . . . any other enactment for the time being in force' occurring in Section 16 of the Act. Under that provision, a suit can be transferred from a Court of Small Causes to a regular Court. But then, as provided by Section 24(4), the court to which the suit is transferred is deemed to be a court of small causes for purposes of the suit transferred. Section 24(4) thus removes the bar imposed by Section 16 of the Provincial Small Cause Courts Act against the trial of a suit of Small Cause nature by an ordinary court when there is a Small Cause Court exercising jurisdiction within the same local limits and the suit is cognizable by that court, and at the same time gives jurisdiction to the ordinary court to which the suit is transferred to try the suit as a small cause suit. If Section 16 had the effect as contended for by the learned counsel for the opponents, then Section 24(4) C. P. C. need not have been enacted at all. Thus both Section 23 of the Provincial Small Cause Courts Act and Section 24(4) C. P. C. only reinforce the conclusion that in the absence of an express statutory provision a regular court has no jurisdiction to try, whether as an ordinary suit or as a small cause suit, a suit which is of small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits.

8. The aforesaid discussion is sufficient to show that the view taken by Krishnan J. in CR No. 377 of 1966 D/-29-3-1967 (MP) (Supra) as also in CR No. 208 of 1966 D/- 10-4-1967 (MP), that the trial of a suit of small cause nature by a regular court as an ordinary court in contravention of Section 16 is merely an error of procedure and, therefore, the decision of a regular court in such a suit is not a nullity, is not correct. The learned Single Judge has also observed in those cases that in the trial of such a suit by an ordinary court the defendant gets an elaborate hearing and does not suffer any prejudice and cannot be allowed to raise any objection as to jurisdiction for the first time in his appeal before the appellate court or in revision before the High Court. With all respect to the learned Judge, the question of jurisdiction of court is not one which can be determined with reference to the form or manner of hearing or prejudice to the parties. As has been pointed out earlier, if a regular court has no jurisdiction to try a small cause suit in the circumstances mentioned in Section 16 then its decision is clearly a nullity and objection as to the jurisdiction of the court can be raised any time. In the cases decided by Krishnan J. there is also a reference to Section 21 C. P. C. and Section 15 of the Provincial Small Cause Courts Act, Section 21 C. P. C. has no applicability whatsoever. Anobjection that on account of existence of a Small Cause Court having jurisdiction to try a suit of the small cause nature the regular court has no jurisdiction to try the suit as an ordinary suit in view of Section 16 is plainly not an objection as to the place of suing with which Section 21 C. P. C. deals. Again, Section 15 of the Provincial Small Cause Courts Act only specifies the suits which are excepted from the cognizance of a Court of Small Causes and limits the jurisdiction of Small Cause Court with reference to the pecuniary valuation of the suit. It has no bearing whatsoever on the question of jurisdiction of the regular courts to try a suit cognizable by a Court of Small Causes as an ordinary suit when there is already a Court of Small Causes having jurisdiction to try the suit.

9. For these reasons, the answer to the question referred is that if the Court of Additional District Judge is empowered and has jurisdiction to try a small cause suit, then that suit cannot be tried by the Court of the Civil Judge, Second Class, as an ordinary suit. That suit cannot be tried by the Court of Civil Judge, Second Class, as a small cause suit if the value of the suit exceeds the pecuniary value of the suits which the Civil Judge, Second Class, is empowered to try as small cause suits. Even if no objection as regards jurisdiction is raised by the defendant in the Court of the Civil Judge, Second Class, the defendant is entitled to raise the objection before the appellate court or in this Court in revision. In such circumstances, the decision of the civil Judge, Second Class, in the suit being one without jurisdiction is a nullity.

10. S.B. SEN, J.

I agree.


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