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Alamchand Birumal Vs. Motilal Balchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 340 of 1966
Judge
Reported inAIR1968MP112
ActsMadhya Pradesh Civil Courts Act, 1958 - Sections 9, 25, 26 and 27; Provincial Small Cause Courts Act, 1957 - Sections 16; Code of Civil Procedure (CPC) - Order 7, Rule 10
AppellantAlamchand Birumal
RespondentMotilal Balchand
Appellant AdvocateG.P. Singh, Adv.
Respondent AdvocateB.L. Seth, Adv.
DispositionPetition allowed
Cases ReferredHichha Mali v. Hira Mali
Excerpt:
- - 731-14-0, it clearly stood transferred to the court of the civil judge, second class, satna, by virtue of the provisions of section 27 of the act......power of a court of small causes competent to try the suit. on 1st january 1959 the madhya pradesh civil courts act,1958, (hereinafter referred to as the act), came into force. under section 25 of the act, the munsiff court at satna became a court of civil judge. class-ii. on 1st january1959. this court issued a notification, in exercise of the powers conferred by section 9 of the act, investing all courts of the additional district judges with the powers of a court of small causes under the law for the time being in force for the trial of suits cognizable by such courts and not exceeding rs. 1,000 in value arising with the local limits of the iurisdiction of such courts. after the coming into force of the act. the trial of the petitioner's suit as an ordinary suit was continued in the.....
Judgment:

Dixit, C.J.

1. This revision petition has come up for disposal before us on a reference by our learned brother Bhargava J. before whom it first came up for hearing. The learned Single Judge felt that the question raised in the revision petition was of considerable importance, and the decision of this Court in Ramkaran v. Shankarro, 1969 MPLJ 905 required reconsideration, and, therefore, the revision petition should be heard by a Division Bench rather than by him sitting singly.

2. The material facts are that on 29th September 1958 the petitioner-firm instituted a suit against the non-applicant for recovery of Rs. 731-14-0 in the Court of Munsiff, Satna. At the time of the institution of the suit, there was no court in the area invested with the power of a Court of Small Causes competent to try the suit. On 1st January 1959 the Madhya Pradesh Civil Courts Act,1958, (hereinafter referred to as the Act), came into force. Under Section 25 of the Act, the Munsiff Court at Satna became a Court of Civil Judge. Class-II. On 1st January1959. this Court issued a notification, in exercise of the powers conferred by Section 9 of the Act, investing all courts of the Additional District Judges with the powers of a Court of Small Causes under the law for the time being in force for the trial of suits cognizable by such courts and not exceeding Rs. 1,000 in value arising with the local limits of the iurisdiction of such courts. After the coming into force of the Act. the trial of the petitioner's suit as an ordinary suit was continued in the court of the Civil Judge, Second Class, Satna.

3. When the trial of the suit was about to complete, the defendant raised the objection that as the suit was of small cause nature and the Additional District Judge, Satna, had been invested with the powers of a Court of Small Causes, the Court of Civil Judge, Second Class, Satna, had no jurisdiction to try the suit. This objectionprevailed with the learned Civil Judge, who made an order on 5th February 1962 returning the plaint for presentation to the proper court. The petitioner then appealed to the Additional District Judge, Satna, against the order of the Civil Judge returning the plaint for presentation to the proper court The learned Additional District Judge dismissed the appeal taking the view that the plaintiff's suit stood automatically transferred to the Court of Additional District Judge under Section 27 of the Act. Hence this revision petition by the plaintiff.

4. The question raised for determination in this revision petition involves a consideration of Sections 25 and 27 of the Act, and Section 16 of the Provincial Small Cause Courts Act, 1887. Section 25 of the Act is as follows-

'25 Transitional Provisions. As from date of the commencement of this Act-

(1) all existing Courts of District Judges and Additional District Judges shall respectively be deemed to be the Courts of District Judges and Additional District Judges established under this Act;

(2) all existing Courts of Munsiffs in the Vindhya Pradesh, Bhopal and Sironi regions and of Civil Judges of the Second Class in the Madhya Bharat region shall be deemed to be the Courts of Civil Judges (Class II) established under this Act:

(3) all existing Courts of Civil Judges of the First Class in the Madhya Bharat and Sironi regions and of Subordinate Judges in the Bhopal region shall be deemed to be the Courts of Civil Judges (Class I) established under this Act:

(4) the existing Courts of Civil Judged in the Mahakoshal region shall be deemed to be the Courts of Civil Judges (Class II) established under this Act except such of these Courts as may be specified by the State Government by a notification to be the Courts of Civil Judges (Class I). Explanation -- In this section 'existing court' means a Court established under any of the enactments repealed by Section 24 and functioning immediately before the commencement of this Act.'

Section 24 of the Act repealed inter alia the Bhopal and Vindhya Pradesh (Courts) Act, 1950 under which the Munsiff Court at Satna was established. It is thus plain that under Clause (2) of Section 25. the Court of Munsiff at Satna became a Court of Civil Judge. Second Class, established under the Act. Section 27 of the Act says-

'27. Pending suits and proceedings--Every suit or other proceeding pending before any of the existing Courts immediately before the commencement of this Act shall on such commencement stand transferred to the Court having iurisdiction under the provisions of this Act and if there are more than one Court having such jurisdiction, to the Court which the District Judge may specify in that behalf in accordancewith the provisions of this Act; and the Court to which the proceeding so stands transferred shall proceed to try, hear and determine the matter as if it had been pending in that court.'

It will be seen that the 'existing courts' referred to in Section 27 are those enumerated in the four clauses of Section 25, and the courts to whom suits or other proceedings pending before the existing courts stand transferred are 'deemed courts' under Section 25 having jurisdiction over the suits or proceedings under the provisions of the Act Under Section 6(1) of the Act, the Court of the Civil Judge, Class-II, has jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rs. 5000/-. As the plaintiff's suit was pending in the Court of Munsiff, Satna, immediately before the commencement, of the Act, and as its valuation was Rs. 731-14-0, it clearly stood transferred to the Court of the Civil Judge, Second Class, Satna, by virtue of the provisions of Section 27 of the Act.

The suit cannot be regarded as transferred to the Court of the Additional District Judge invested with the powers of a Court of Small Causes under the notification issued by this Court in the exercise of its powers under Section 9 of the Act, for the simple reason that the Court of Munsiff, where the plaintiff's suit had been filed, was not a Court of Small Causes but was an ordinary civil court, and Section 25 of the Act did not provide that in regard to the suits of small cause nature pending in the existing courts mentioned in the four clauses thereof the courts of Additional District Judges invested with the powers of small causes shall be deemed to be the courts in place of the existing courts. In our opinion, the combined effect of Section 25 and 27 of the Act is that when the Act came into force the plaintiff's suit stood transferred to the Court of the Civil Judge. Second Class, Satna.

5. Shri Seth, learned counsel appearing for the non-applicant, argued that as the notification investing all courts of Additional District Judges with the powers of a Court of Small Causes was issued by this Court on 1st January 1959 simultaneously with the coming into force of the Act, the suit stood transferred to the Court of the Additional District Judge, Satna, empowered under Section 9 of the Act. Learned counsel seemed to accept the position that if the notification investing all courts of Additional District Judges with the powers of a Court of Small Causes had been issued by this Court not on 1st January 1959 but subsequently, then the plaintiff's suit would have remained transferred to the Court of the Civil Judge, Second Class, Satna.

We are unable to accept the contention of the learned counsel, which does not take into account the fact that the notification, in exercise of the powers under Section 9 ofthe Act, investing the Courts of Additional District Judges with the powers of a Court of Small Causes could be issued by this pourt only after the coming into force of the Act. The Act came into force at the first moment of 1st January 1959. A notification under Section 9 of the Act could only be issued after the coming into operation of the Act. Thus the issue of the notification, though issued on 1st January 1959, was an event which occurred after the Act came into operation. Now. under Section 27 of the Act, the suits or proceedings in a court stood transferred to the appropriate court the moment the Act came into force. Section 27 nowhere speaks of a further transfer to courts invested with the powers of a Court of Small Causes of suits or proceedings which stood transferred under that section the moment the Act became operative. The notification issued on 1st January 1959 does not also prescribe that suits of small cause nature pending in ordinary courts shall stand transferred to the courts Invested with the powers of a Court of Small Causes. There is nothing in the notification to show that it has such a retrospective effect. On the settled principles with regard to retrospective operation of statutory provisions, it cannot be held that the investment of courts under the notification dated the 1st January 1959 acted retrospectively with reference to suits which had been commenced as regular suits and transformed such suits into small cause suits. So to construe the notification would be to deprive a party of a right of appeal which he had at the time he instituted his suit as a regular suit in an ordinary court.

6. It cannot also be maintained that on the investment of the Court of Additional District Judge, Satna, with the powers of a Court of Small Causes by the notification dated the 1st January 1959. the Court of Civil Judge, Second Class, Satna. was, under Section 16 of the Provincial Small Cause Courts Act, 1887, deprived of the jurisdiction to try the suit That provision is in the following terms-

'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.'

This provision does not deprive a regular court altogether of jurisdiction in suits cognizable by a Court of Small Causes; it merely prevents the exercise of that jurisdiction by a regular court if at the time the suit is filed there is a Court of Small Causes having jurisdiction within the same local limits. Admittedly, in the present case there was no court of Small Causes at Satna having jurisdiction to try the suit when it was filed in the Court of Munsiff, Satna. Section 16 does not, therefore, in any wayoust the jurisdiction of the Court of Civil Judge, Second Class, Satna, where the suit stood transferred under Section 27 of the Act, to try the suit. In this connection, it would be pertinent to refer to Order 7, Rule 10 of the Code of Civil Procedure, which says-

'The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.'

Under this rule, a plaint can be returned only if at the time it was filed there was another court in which the suit should have been instituted. Here, at the time the suit was filed in the Court of Munsiff, Satna, there was no Court of Small Causes and no small cause powers had been conferred on the Court of Additional District Judge, Satna The subsequent conferment of small cause powers on the Court of Additional District Judge, Satna, could, therefore, afford no ground to the Civil Judge. Second Class. Satna, to return the plaint. In our judgment, the court of the Civil Judge, Second Class, Satna, continues to have jurisdiction to try the applicant's suit.

7. The view we have expressed is supported by the decision in Hichha Mali v. Hira Mali AIR 1934 Pat 504 and Venkata Subbaramiah v K Hari Rao, AIR 1957 Andh Pra 133. In the Patna case, it has been held that Section 16 does not apply to a suit already instituted in another court at a time when the latter court had jurisdiction to entertain it. In that case, a suit for recovery of some money was instituted in the ordinary court at Sasaram; at that time there was no Small Cause Court at that place But when the suit was being tried, the Munsiff was invested with small cause powers. The Patna High Court held that Section 16 of the Provincial Small Cause Courts Act, 1887, could not apply to tht case, and the suit was properly tried bv the ordinary court. In the Andhra Pradesh case, a suit of small cause nature was filed as an original suit in the Munsiff's Court as at that time the Court of Subordinate Judga did not have small cause jurisdiction Subsequently the Subordinate Judg_e was invested with small cause jurisdiction over the local limits of the Munsiff. The Andhra Pradesh High Court held that the Munsiff continued to have Jurisdiction to dispose of the suit as original suit, and that the suit could not be transferred to the Court of Subordinate Judge to be tried by it in the exercise of its small cause jurisdiction. It was observed by the Andhra Pradesh High Court that Order 7, Rule 10 C.P.C. saved the jurisdiction of the Munsiff Court and preserved it notwithstanding the subsequent conferment of small cause powers on Subordinate Judges.

8. The aforesaid discussion is sufficient to show that the contrary view taken by Newasker J. in 1966 MPLJ 905 is not correct. With all respects, we do not find our-selves in agreepient with the view taken by the learned Judge in Ramkaran's case, 1966 MPLJ 905 (supra).

9. For these reasons, our conclusion is that the Court of Civil Judge, Second Class, Satna. continues to have jurisdiction to hear the plaintiff-applicant's suit as an ordinary iuit. The result is that this petition is allowed, the order dated the 1st March 1966 of the Additional District Judge, Satna, and the order dated the 5th February 1962 of the Civil Judge. Second Class, Satna, are set aside, and the Court of the Civil Judge, Second Class, Satna, is directed to hear the suit as an ordinary suit and dispose of it in aecordance with law. In the circumstances of the case, we leave the parties bear to their own costs of this application.


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