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K.S.R. Acharya Vs. Mrs. Halima Meeran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1134 of 1960
Judge
Reported inAIR1963Mad87
ActsPresidency Small Cause Courts Act, 1882 - Sections 38; Code of Civil Procedure (CPC) , 1908 - Sections 2(9) and 8 - Order 20, Rule 4; Madras Small Cause Court Rules - Order 1A, Rule 4(6) - Order 41, Rule 12
AppellantK.S.R. Acharya
RespondentMrs. Halima Meeran
Appellant AdvocateV.V. Raghavan and ;P. Ramaswami, Advs.
Respondent AdvocateA. Sundaram Iyer and ;V. Sambandam Chetti, Advs.
DispositionRevision allowed
Cases Referred(Rex v. Nat Bell Liquor
Excerpt:
.....sustainable - judgment must be supported by reasoning - matter remitted to small cause court for hearing after notice to parties. - - it shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. 3. learned counsel for the respondent submits that the new trial court can order retrial under section 38 of the presidency small cause courts act only if there is any error of law in the judgment at the original trial and that if no question of law is raised or can arise, the court can hardly do anything better than to say that no question of law is involved in the case. justice should not merely be done but appear to be done, and an aggrieved suitor before..........115, c. p. c. against the decision of the court of small causes at madras, dismissing a new trial application, n.t.a. no. 77 of 1960, and confirming the judgment and decree in s. c. s. no. 3281 of 1959.2. the facts giving rise to this petition are as follows: the plaintiff in s. c. s. no. 3281 of 1959, small cause court, madras, sued to recover from the defendant the sum of rs. 1205, alleged to have been paid by the plaintiff to the defendant on 15-12-1958, in pursuance of an agreement to purchase the defendant's house. the defendant was admittedly the owner of premises no. 14-b station view road, kodambakkam, and he agreed to sell that property to the plaintiff for a sum of rs. 11600, and the agreement was embodied in a document dated 15-12-1958. the plaintiff alleged that she.....
Judgment:
ORDER

Jagadisan, J.

1. This is a civil revision petition under Section 115, C. P. C. against the decision of the Court of Small Causes at Madras, dismissing a new trial application, N.T.A. No. 77 of 1960, and confirming the judgment and decree in S. C. S. No. 3281 of 1959.

2. The facts giving rise to this petition are as follows: The plaintiff in S. C. S. No. 3281 of 1959, Small Cause Court, Madras, sued to recover from the defendant the sum of Rs. 1205, alleged to have been paid by the plaintiff to the defendant on 15-12-1958, in pursuance of an agreement to purchase the defendant's house. The defendant was admittedly the owner of premises No. 14-B Station View Road, Kodambakkam, and he agreed to sell that property to the plaintiff for a sum of Rs. 11600, and the agreement was embodied in a document dated 15-12-1958. The plaintiff alleged that she paid a sum of Rs. 1200 as advance under that agreement and that the advance amount was repayable to her, as the defendant did not sell the property as agreed to by him. The defendant admitted the receipt of the advance of Rs. 1200, but submitted that the advance was paid by the plaintiff's husband and not by the plaintiff, that he sold the house to the plaintiff's husband for Rs. 11500 and the advance of Rs. 1200 was adjusted towards the consideration of that sale. He denied liability to repay the amount to the plaintiff.

There is no dispute that the defendant received the sum of Rs. 1200 under the terms of the agreement dated 15-12-1958 and the real dispute between the parties was Whether the sum so received was adjusted in the subsequent sale transaction between the defendant and the plaintiffs husband, or did it remain unadjusted. The case of the plaintiff was that her husband paid another sum of Rs. 1200 to the defendant to fulfil his obligation under the purchase made by him. Several documents were marked and oral evidence also was recorded at the trial. Though the issue arising in the case was apparently simple, the facts, as emerged at the trial, were conflicting and were of a complex character. The learned Small Cause Judge, who tried this suit, reached the conclusion that P.W. 1, the plaintiff's husband, paid a separate advance on 29-1-1959 for the sale deed Ex. P-7 in his favour and that their original advance received by the defendant from the plaintiff was liable to be repaid, and accordingly granted a decree in favour of the plaintiff. The defendant preferred a new trial application under Section 38 of the Presidency Small Cause Courts Act, and two learned Judges of the Court of Small Causes dismissed the application in these brief words :

'Heard. There is no question of law. Dismissed.'

The defendant questions the correctness and propriety of the said decision in the new trial application, in this civil revision petition. The most striking feature of this impugned pronouncement is its extraordinary brevity, which arouses in the mind of the revising court the suspicion that the decision is ill-considered and arbitrary. Bereft of narration of the pleadings in the case, discussion of the evidence adduced, and the reasons for the conclusion, the decision, I hesitate to call it a judgment, has all the look of an ipse dixit without the quality of judicial persuasiveness. It does not satisfy the party who has lost the case, and, of course, cannot carry conviction even to the most fastidious revising court rigidly applying Section 115, C. P. Code. However hard pressed for time the learned Judges of the Court ofSmall Causes may be, and however plain and uncomplicated the facts of the case may appear to them, it is not a proper discharge of duty to dispose of a new trial application by merely dismissing it. A judgment, withholding the reasons on which it is based, and silent regarding the contentions raised before the court, is disappointing, unsatisfactory and improper.

2a. The procedure in the Court of Small Causes, Madras, is not governed by all the provisions of the Civil ProcedureCode. Section 8 of the C. P. Code reads :

'Save as provided in Sections 24, 38 to 41, 75,Clauses (a), (b) and (c), 76, 77 and 155 to 158, and by thePresidency Small Cause Courts Act, 1882, the provisions inthe body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in thetowns of Calcutta, Madras and Bombay :

Provided that- (1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may, from time to time, by notification in the official gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, and with such modifications and adaptations as may be specified in the notifications, shall extend to suits or proceedings or any class of suits or proceedings in such court .....'

By notification of the High Court of Judicature at Madras, dated 17th May, 1916, several of the sections of the Civil Procedure Code have been made applicable to the Presidency Court of Small Causes, Madras. Order XX of these rules relates to judgment and decree.

'Order XX, Rule 1. The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders.

*** ** *

Rule 3 The judgment shall be dated and signed or initiatedby the Judge in open court at the time of pronouncing it.

*** ***

Rule 6 (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.'

It is clear that there is a procedural requirement compelling the Court of Small Causes to pronounce a judgment, which is quite distinct and separate from the decree that the court passes. Section 2(9), C. P. Code, defines 'judgment' in the following terms :

' 'Judgment' means the statement given by the Judge of the grounds of a decree or order.'

It is in this sense that the word 'judgment' occurring in Order XX of the Small Cause Courts Act has got to be Understood. Order 1-A, Rule 4 (6) of the Rules of the Madras Court of Small Causes provides that all expressions used in the rules shall have the respective meaning prescribed by the Code. Can it be said that the disposal of the new trial application in the manner set out above amounts to the pronouncement of a judgment? In my opinion, it has the semblance of a judgment but not its substance.

3. Learned counsel for the respondent submits that the new trial Court can order retrial under Section 38 of the Presidency Small Cause Courts Act only if there is any error of law in the judgment at the original trial and that If no question of law is raised or can arise, the court can hardly do anything better than to say that no question of law is involved in the case. But this argument overlooksthat it is the fundamental duty of a court to state briefly the contentions raised before it and to pronounce its opinion on them. A laconic order is very often a mere cloak for unreasonableness. Justice should not merely be done but appear to be done, and an aggrieved suitor before a court of law reasonably expects to know why his contentions failed. It is true that this court has taken the view that the new trial court is not an appellate Court that can decide questions of fact. Section 38 of the Presidency Small Cause Courts Act is as follows :

'Where a suit has been contested, the Small cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit, order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.'

The language of this provision is quite general and comprehensive to warrant interference even with findings of fact arrived at by the court of first instance at the trial. But, a Full Bench of this court in Sikkandar Rowther v. Ghouse Mohideen Maracayar, ILR 40 Mad 355 : AIR 1917 Mad 135, held that a Full Bench of the Presidency Small Cause Court, sitting under Section 38 of the Act, has no jurisdiction to decide questions of fact whether they are raised generally or in consequence of its finding on another question of fact or law. The reasoning of the Full Bench is thus set out by Sir John Wallis, C. J. at page 364 (of ILR Mad) : (at p. 133 of AIR) :

'Thousands of cases are decided by the Small cause Court every year, and if the right of appeal were freely exercised, not only would the summary nature of the Tribunal be destroyed, but the work of the court would be blocked. Again, if the Legislature had intended to allow appeals on the facts, some record of the evidence would certainly have been prescribed. As already pointed out, full effect may be given to the alteration introduced into Section 37 in 1882 without construing it as introducing so revolutionary a change.'

The basis of this decision is the presumed object of the Legislature in establishing cheap and expeditious Tribunals for the determination of matters cognizable by Small Cause Courts. This decision has been followed subsequently by numerous judges of this court, and has stood the test of time. The principle of stare decisis fully applies and it has to be assumed as settled law that it is open to a new trial Court to dismiss an application under Section 38 on the ground that there is no error of law in the Judgment attacked in the new trial application.

4. I may also refer to Order XLI, Rule 12 of the Small Cause Courts Rules, which reads :

'The application will not ordinarily be granted unless one of the grounds specified in the following clauses is established :

(a) That the decree or order is contrary to some specified law or usage having the force of law.

(b) That there was a substantial error in the procedure as prescribed by these rules or by any other enactment applicable to the court which has produced error in the decision of the case on the merits.

(c) That the applicant has discovered new and Important matter or evidence which would affect the decision of the case on the merits and which, after the exercise of due diligence, was not within his knowledge and could not be produced by him before the court at the time when the decision was passed.'

The error or law, however, can be of various descriptions. It is not easy to disentangle questions of law and of fact The proper legal effect of a proved fact is a question or law. A finding of fact unsupported by the evidence on record, or which is perverse, or which is so plainly unreasonable and impossible on the evidence, is open to attack as an error of law. The new trial Court must say in its judgment what is the question of law raised before it, and then give its opinion either that it is not a question of law or if it is a question of law, it is not well founded. A blanket judgment that there is no error of law is a puzzle, and, to quote Lord Sumner, 'wears the inscrutable face of a sphinx'. (Rex v. Nat Bell Liquor, 1922 2 AC 128.

5. I am of opinion that the learned Judges of the Court of Small Causes have disposed of the new trial application most perfunctorily and that their decision is not a judgment in accordance with law. In the result, the civil revision petition is allowed. The order of the court below in N. T. A. No. 77 of 1960 is set aside and the application is restored to the file of that court to be disposed of atresn after giving due notice to both the parties in the light of the observations contained in this judgment. Costs will abide and follow.


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