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Pankaja Padhan and anr. Vs. Ranjit Padhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 579 of 1982
Judge
Reported inAIR1986Ori64
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 1 and 1(2); Provincial Small Cause Courts Act, 1887 - Sections 17
AppellantPankaja Padhan and anr.
RespondentRanjit Padhan
Appellant AdvocateJ.P. Misra, Adv.
Respondent AdvocateB. Rath, Adv.
DispositionRevision dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........to which the order is to apply: (1) this order shall apply to the following courts, namely- (a) high courts, city civil courts and courts of small causes; and (b) other courts; provided that in respect of the courts referred to in clause (b) the high court may, by notification in the official gazette, restrict the operation of this order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the official gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this order as it deems proper. 2. subject to the provisions of sub-r. (1) the order applies to the following classes of suits, namely :-- (a) suits upon bills of exchange,.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The defendants in SCC Case No. 13/1 of 1982 of the Court of the Subordinate Judge, Bargarh, have filed this application under Section 115, Civil P. C. challenging the order dt. 22-4-1982 decreeing the said suit.

2. The opposite party filed the suit for realisation of a sum of Rs. 450/- together with pendente lite and future interest at the rate of 12 per cent per annum from the petitioner alleging, inter alia, that on 7-9-1981 the defendants purchased 115 pieces of grounds (Makhan) from the plaintiff for Rs. 450/- and promised to pay the price for the same within a week. After lapse of about one and half months on being reminded several times the defendants offered to pay Rs. 200/- only on the plea that the grounds being rotten could not be marketed. The plaintiff refused to accept the amount. On these allegations the plaintiff prayed for realisation of Rs. 450/-together with interest from the defendant towards the price of the gourds supplied to them. In para 5 of the plaint it was stated that no relief has been claimed in the suit which does not come under Order 37, Civil P. C.

The petitioners in their written statement denied the allegations made in the plaint. They denied to have either received 115 gourds from the plaintiff on 7-9-1981 or to have made any promise for payment of Rs. 450/- within a week as alleged by the plaintiff. They also denied to have made any offer to pay Rs. 250/-to the plaintiff towards the price of the gourds. In para ten of the written statement defendants took the plea that the suit was not maintainable under Order 37, Civil P. C.

3. The plaintiff examined 3 witnesses in support of his case. One witness was examined on behalf of the defendants. The learned Subordinate Judge framed 3 issues, discussed the materials on record under different issues and came to the conclusion that the plaintiff was entitled to receive Rs. 450/- from the defendants towards the price of the gourds. The Court rejected the contention raised on behalf of the defendants regarding maintainability of the suit. This order of the trial Court is under challenge in the revision petition.

4. The learned counsel for the petitioners contends that the Court below has erred in rejecting the plea raised on behalf of the defendants that the suit was not maintainable under Order 37, Civil P. C. He further contends that since the plaintiff's claim is based on an oral contract between the parties the suit does not come within the purview of Order 37, Civil P. C. Reference is made to the provisions under Order 37, Rule 1(2), Civil P. C.

The learned counsel for the opposite party on the other hand contends that there is no infirmity in the impugned order since the Court has taken a correct decision in rejecting the plea of the defendants questioning jurisdiction of the Court.

5. In view of the contentions of the parties noticed above, the sole question that falls for consideration is whether the suit comes within the purview of Order 37, Rule 1, Civil P. C. The said provision reads as follows : --

1. Courts and classes of suits to which the Order is to apply:

(1) This Order shall apply to the following Courts, namely-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) Other Courts;

Provided that in respect of the Courts referred to in Clause (b) the High Court may, by notification in the Official Gazette, restrict the operation of this order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

2. Subject to the provisions of sub-r. (1) the Order applies to the following classes of suits, namely :--

(a) suits upon bills of exchange, hundies and promissory notes.

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising : --

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

On perusal of the aforesaid provision it is clear that under Sub-rule (1) the order is made applicable to High Courts, City Civil Courts and Courts of Small Causes; and in respect of the Courts referred to in Clause (b), the High Court is vested with the power to restrict operation of the Order only to such categories of suits as it deems proper. Further, power is vested in the Court to restrict, enlarge or vary categories of suits to be brought under operation of the order. Sub-rule (2) which enumerates clauses of suits to which the order applies is made subject to the provision of Sub-rule (1). It is the contention' of the petitioners that since the suit as laid does not come within any of the classes of suits enumerated under Sub-rule (2) the provisions of Order 37 are not attracted in the case. The clauses of suits enumerated under Sub-rule (2) cannot be said to be exhaustive in view of the power vested in the High Court under the proviso to Sub-rule (1).

6. There is no controversy that the plaintiff filed the suit under the provisions of the Small Cause Courts Act and the case was registered as SCC case,. There is also no controversy that the case was cognizable by the Small Cause Courts and the Subordinate Judge is competent to try S.C.C. suits. Under Sub-rule (1) of Order 37, as noticed above, it is provided that the procedure under the order shall apply to, amongst others, to Courts of Small Causes. Section 17 of the Provincial Small Cause Courts Act provides that the procedure prescribed in the Civil P. C. 1908, shall save in so far as is otherwise provided by that Code or by the Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it. The procedure for trial of such suits is laid down under Order 37, Civil P. C. As noticed earlier, there being no controversy that the present suit being cognizable by small cause courts and hence triable in the manner as provided under the Code, the contention raised on behalf of the petitioners questioning maintainability of the suit under Order 37, Civil P. C. is without substance. The learned Counsel for the petitioners has cited some decisions, namely, AIR 1978 Madh Pra 199, AIR 1956 Mad 610, AIR 1925 All 821, AIR 1965 SC 1698, (1900) ILR 23 Mad 547 (FB). On perusal of these decisions, I find that none of the decisions is relevant for deciding the question in issue in this case. None of the abovementioned cases was concerned with a suit under Small Cause Courts Act. All these decisions relate to the question whether particular types of suits, based on contracts come within the scope of Order 37, Rule 1, Sub-rule (2) or not. Since that is not the question that arises for consideration in this case, the decisions are of little help.

7. In the result, the revision petition fails and the same is dismissed, but in the circumstances of the case without any order for costs of this proceeding.


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