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Abdul Aziz Ansari Vs. Bhagwandas Nathubhai Master - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 567 of 1964
Judge
Reported inAIR1969Guj147; (1969)GLR490
ActsProvincial Small Cause Courts Act, 1887 - Sections 15, 15(2), 16, 24, 27 and 35
AppellantAbdul Aziz Ansari
RespondentBhagwandas Nathubhai Master
Appellant Advocate Mangaldas M. Shah, Adv.
Respondent Advocate P.D. Desai, Adv.
DispositionApplication rejected
Cases ReferredBhagwati Pande v. Badri Pande
Excerpt:
- - ' before the interpretation to be put on this section is considered, i would like to notice certain points......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.'section 16 uses the words 'save as expressly provided by this act'. if there is such an express provision, a suit cognizable by a court of small causes, can be tried by another court. section 24 provides appeals from certain orders of courts of small causes. before this section applies, the order must be passed by a court of small causes and not by a court trying a suit cognizable by a court of small causes but not having the powers of such a court. section 27 provides:'27. save as provided.....
Judgment:
ORDER

V.B. Raju, J.

1. The question in this revision is whether an appeal lies when a suit cognizable by a Court of Small Causes is partly tried by such Court and subsequently tried by a Court which has not the small cause powers, because the first Judge is transferred. Section 35 of the Provincial Small Cause Courts Act deals with such a situation and reads as under:--

'Continuance of proceedings of abolished Courts:--

35(1) Where a Court of Small Causes, or a Court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case, whether before or after decree, which, if the Court had not ceased to have jurisdiction, might have been had therein, may be had in the Court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.

(2) Nothing in this section applies to cases for which special provision is made in the Code of Civil Procedure, as extended to Courts of Small Causes, or in any other enactment for the time being in force.'

Before the interpretation to be put on this section is considered, I would like to notice certain points. Chapter II of the Provincial Small Cause Courts Act (hereinafter referred to as 'the Act') provides for the constitution of Courts of Small Causes. Chapter III of the Act deals with jurisdiction of such Courts. Section 15 provides that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule. Subsection (2) provides :

'(2) Subject to the exceptions specified in that Schedule and to the provisionsof 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.'

Section 16 then provides as follows:--

'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.'

Section 16 uses the words 'Save as expressly provided by this Act'. If there is such an express provision, a suit cognizable by a Court of Small Causes, can be tried by another Court. Section 24 provides appeals from certain orders of Courts of Small Causes. Before this Section applies, the order must be passed by a Court of Small Causes and not by a Court trying a suit cognizable by a Court of Small Causes but not having the powers of such a Court. Section 27 provides:

'27. Save as provided by this Act a decree or order made under the foregoing provisions of this Act by a Court' of Small Causes shall be final.'

It is only a decree or order made by a Court of Small Causes which is final and non-appealable. A decree passed by a Court which is not a Court of Small Causes but which under the powers given by the Act passed it in a suit cognizable by a Court of Small Causes does not fall under Section 27. Such a decree or order would be appealable under the Civil Procedure Code if appealable under the Code. Now, if we turn to section 35, that Section deals with continuance of proceedings of abolished courts. That section provides that where a Court of Small Causes is abolished, the proceedings shall continue in a Court having ordinary jurisdiction. That Court, therefore, would be a Court having ordinary jurisdiction but empowered by Section 35 to try suits cognizable by a Court of Small Causes and section 35 is therefore an express provision contemplated by Section 16 of the Act. When that happens, the Court hearing the suit subsequently would not be a Court of Small Causes but would be a Civil Court of ordinary jurisdiction and section 24 will have no application to an order passed by such a Court, nor would section 27 apply.

2. The learned Counsel for the petitioner relies on the decision in Shankerbhai v. Somabhai, (1901) ILR 25 Bom 417 but that is not a case under section 35 of the Act. He also relies on AIR 1935 Mad 919, Ramaswami v. Firm of Ki Karu, but in that case Sections 24, 16 and 27 have not been considered. There is another Madras ruling in Kamalathammalv. Harihara, AIR 1941 Mad 103. There it is observed:

'Section 35 does not say that the Court which is empowered thereunder to entertain proceedings owing to a Small Cause Court ceasing to have jurisdiction with reference to the case, should have jurisdiction to try the suit as a Court of Small Causes. It is sufficient if it has Jurisdiction to try the suit'. The learned Judge, Patanjali Sastri also referred to the Madras decision in AIR 1935 Mad 919 and made the following observations: 'Section 35 provides not only for the continuance of pending proceedings in the same Court when that Court's jurisdiction is changed, but also for their continuance in a different Court on the abolition of the original Court. Apart from this, if as the learned Judge thinks, there is nothing in section 35 to turn a small cause suit into an original suit it is difficult to see anything in it to turn a civil Court into a Court of Small Causes, so as to attract the application of Section 27 barring appeals in respect of a decree or order made by a Court of Small Causes...... .....The FullBench decision in : AIR1931All574 held that a suit Instituted as a small cause suit, if tried as an original suit in the circumstances mentioned in section 35 when there was no other Judge in the local area with adequate small cause powers to try it as a small cause suit, should be regarded as an original suit, and the decree passed in it would be appealable.'

The learned Judge agreed with the Full Bench view in Bhagwati Pande v. Badri Pande : AIR1931All574 that a suit instituted as a small cause suit if tried as an original suit in the circumstances mentioned in section 35 when there was no other Judge in the local area with adequate small cause powers to try it as a small cause suit, should be regarded as an original suit and the decree passed in it would be appealable. I also agree with this view and hold that Section 27 of the Act does not operate in the circumstances of the case to bar an appeal. I, therefore decline to interfere in revision in this matter.


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