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Soundaramier and anr. Vs. Sennia Naicken and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1900)10MLJ329
AppellantSoundaramier and anr.
RespondentSennia Naicken and ors.
Cases ReferredVedachala Mudali v. Bamasami Raja
Excerpt:
- - i confess i fail to follow the reasoning in this case. 500' and those of the provincial small cause courts act which relate to the nature of suits that are cognisable by small cause courts as well as those which relate to suits excepted from the cognizance of those courts are provisions applicable quite generally: that this decision is perfectly correct will be manifest if the true effect of the enactment section 15 of bombay act x of 1876 is borne in mind. it would also have followed that a suit for price of goods sold to a government officer would in madras unlike in bombay be of the nature of suits triable by small cause courts as no enactment like section 15 of act x of 1876 referred to existed in the former presidency......limits of its jurisdiction.' the view that the effect of the notification is to render suits for rent suits of the nature cognizable in courts of small causes' does not, in my judgment,' involve the proposition that as soon as government by notification empowers any judge to try rent suits on the small cause side, all such suits throughout the presidency cease to be sauts excepted from the cognizance of courts of small causes and become suits cognizable in, such courts. it does involve the proposition that all suits for rent become 'of the nature cognizable'; but whether a given suit for, rent ceases to be a suit excepted from the cognizance of a court of small causes, must depend, first, upon the question whether the tribunal before which the suit is instituted is included in the.....
Judgment:

Charles Arnold White, C.J.

1. In this case, I am unable to agree with the view which was taken by a Division Bench of this Court in Vedachala Mudali v. Ramasami Raja I.L.R. (1899) M. 229. The question turns upon the construction to be placed upon the words ' any suit of the nature cognizable in Courts of Small Causes' as used in Section 586 of the Code of Civil Procedure. The object of the section, as it seems to me, is to takes, away the right of second or special appeal where the value of the subject matter of the original suit does not exceed Us. 500 in the case of all suits which as regards their subject-matter would be within the jurisdiction of Courts as Small Causes, but which are outside that jurisdiction by reason of the amount claimed being beyond the pecuniary limit of the Small Cause jurisdiction. This section is a reproduction of Act XXIII of 1861, Section 27, which provided that no special appeal should lie in any suit of the nature cognizable in Courts of Small Causes under Act XLII of 1850 when the debt, damage or demand did not exceed Rs. 500. Under Act XLII of 1860 claims for rent and other matters recoverable before a revenue officer ware expressly excluded from the jurisdiction of Small Cause Courts. Act XLII of 1860 was repealed by Act XI of 1865, the latter enactment providing Section (50) that references to. the Act of 1860 should be read as applying to the Act of 1865. The Act of 1865 was repealed by Act IX of 1887. Both the Act of 1865 and the Act of 1887 were Acts of the Governor-General in Council. The scheme of the Act of 1887 was the converse of that of the Act of 1865. Under the Act of 1865 a Court of Small Causes was given jurisdiction over certain specified claims. Under the Act of 1887 the Court has jurisdiction over all suits, provided the amount of the claim is within the pecuniary limit of the special jurisdiction, unless the suit is expressly excepted from the cognizance of the court Section 6 of the earlier enactment provided that a claim for rent should be cognizable by a Court of Small Causes when the amount claimed did not exceed Rs. 500, but that no action should lie for rent for which, at 'the time of the passing of the Act, a suit might be brought before a revenue officer unless, as regards arrears of rent for which such suit might be brought, the judges of the Court of Small Causes had been expressly invested by the local Government with jurisdiction over claims to such arrears'. Section 7 gave power to the local Government to extend the jurisdiction, in suits of the nature described in Section 6, ' and thereby made cognizable by Court of Small Causes' to an amount not exceeding Rs. 1,000. Section 15 of the later Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule to the Act, but that, subject to the exceptions specified in the schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed Rs. 500 shall be cognizable by a Court of Small Causes. The same section empowers the local Government, subject to the exceptions in the schedule and the provisions of any enactment for the time being in force, to direct that all suits of a civil nature, of which the value does not exceed Rs. 1,000, shall be cognizable by the Court of Small Causes. Amongst excepted suits specified in the schedule are suits for the recovery of rent other than house-rent, unless the Judge of the Court of Small Causes has been expressly invested by the local Government with authority to exercise jurisdiction with respect thereto (article 8). By a notification, dated 24th January 1888, the Madras Government has invested all Subordinate Judges and District Munsifs within the Presidency with jurisdiction to try on their Small Cause side all suits for rent falling within the pecuniary limits of then special jurisdiction. The effect of article '8 and the notification read together is to give a judge jurisdiction to entertain a suit for rent as a Small Cause Suit, provided (1) he is a judge of a class to whom the notification applies, and (2) the amonnt claimed is not beyond the pecuniary limits of his special jurisdiction. By reason of the jurisdiction of a Small Cause Court being limited as regards amount, if the amount claimed exceed the limit, although the suit is' of a nature cognisable ' by a Small Cause Court it is not cognizable. If a suit is cognizable it must be of a nature cognizable. But if it is of a nature cognizable it does not follow-that it is cognizable. When the claim is within the pecuniary limit, and the court is within the terms of the notification, no restriction of the right of appeal is necessary, because under the Small Cause Courts Act itself the decision of the Small Cause Court is final. It seems to me that Section 566 of the Code applies to cases which as regards subject matter would be within, but by reason of the amount claimed are without, the jurisdiction of a Court of Small Causes. The words ' of a nature cognizable' seem to have reference to the subject-matter of the suit as distinguished, from the amount of the claim. In the case of Vedachala Mudali v. Bamaswami Raja I.L.R. (1899) M. 229 a Division Bench were of opinion that a second appeal lay in cases where the suit for rent had been made cognizable by the not ificat on, and would not' have been cognizable but for the notification, on the ground that such suits were not cognizable by virtue of the Act but by virtue of the authority conferred on certain judges by the local Government. I do not see how it can be said that suits which are rendered cognizable by reason of the not fication are not suits which are cognizable by virtue of the Ac:, since the notification was issued under the express powers conferred by the Act. The words 'any suit of the nature cognizable' as used in Section 586 of the Code may be paraphrased thus:Any suit relating to a subject-matter over which a Court of Small Causes would have jurisdiction if the claim were within the pecuniary limits of its jurisdiction.' The view that the effect of the notification is to render suits for rent suits of the nature cognizable in Courts of Small Causes' does not, in my judgment,' involve the proposition that as soon as Government by notification empowers any judge to try rent suits on the Small Cause side, all such suits throughout the Presidency cease to be sauts excepted from the cognizance of Courts of Small Causes and become suits cognizable in, such courts. It does involve the proposition that all suits for rent become 'of the nature cognizable'; but whether a given suit for, rent ceases to be a suit excepted from the cognizance of a Court of Small Causes, must depend, first, upon the question whether the tribunal before which the suit is instituted is included in the notification and secondly, the question whether the amount of the claim is within the pecuniary limit of the jurisdiction of that tribunal. To my mind there is no real anomaly in holding that a suit instituted upon the regular side of a Court which has not had Small Cause jurisdiction conferred upon it may be a suit of a nature cognizable by Courts of Small Causes.' The suit would, be actually cognizable by that particular court if the court was entitled to exercise the special jurisdiction. The fact that it is not so ntiled does not prevent the suit being 'of the nature cognizable in Courts of Small Causes' or affect the question of the construction of Section 586. So far, I have dealt with the case apart from authority. As regards the case reported in Ramachandra Raghunath v. Abaji Bastya I.L.R. (1899) M. 229 Couch, G.J., seems to have overruled the preliminary objection on the ground that 'suits of the nature cognizable by Courts of Small Causes must mean without reference to clause 4 of Section 6 of Act XI of 1865 and must be cognizable in general.' I! we turn to Section 6 of the Act in question, we find that the section begins by enacting affirmatively that a suit for rent (which prima facie, includes a suit for arrears of rent) shall be cognizable by Courts of Small Causes. If, then, the words ' of a nature cognizable' are to be construed without reference to clause 4, we find that the section expressly enacts that suits for rent shall be cognizable. If they are cognizable; it is difficult to see how it can be said that they are not of a nature cognizable. I confess I fail to follow the reasoning in this case.

2. The very general words of a nature cognizable' were no deubt, advisedly used' by the Legislature. In Musa Miya Saheb v. Sayed Gulam I.L.R. (1882) B100. 100, the Bombay High Court went so far as to hold that in a suit which, as regards subject-matter, had been expressly removed from the jurisdiction of a Small Cause Court by an enactment (Act X of 1876, Section 15) which removed suits to which the Collect was a party from the jurisdiction of Small Cause Courts, no second appeal lay. Sargent, G.J. and Melvill.J., held that the nature of the suit, by which must; be understood the jural relations between the parties, remained unaltered, and, as the Suit was one of a nature cognizable by a Small Cause Court, no second appeal lay. The tendency of the courts (with the exception of the Bombay case to which I have referred) seems to have been to carry out the intention of Section 586 by declining to place a narrow construction on the words 'of a nature cognizable.' See, for instance, the case reported in Harakh v. Bam Sarup I.L.R. (1890) A. 579. the Full Bench decision of this Court reported in Manappa Mudali v. S. T. McCarthy I.L.R. (1899) M. 229 and the cases reported in Muthukaruppdn v. Sellan and Kali Krishna Tagore v. Izzatunnissa Khatun6.

3. I think our answer to the question referred to us) should be in the affirmative.

Shephard, J.

4. In order to see whether any suit is ' of the nature cognizable in Courts of Small Causes,' it is clear that the Act relating to Small Cause' Courts must be examined. Chapter III of the present Act deals with the matter of jurisdiction. By Sub-section I.L.R. (1882) B. 100 of Section 15 it is declared that all suits of a/civil nature not exceeding Rs. 500 in? value shall be cognizable by a Court of Small Causes subject? however, to the exceptions specified in the 2nd schedule to the Act. 'The exceptions are ranged under forty-four heads, one of which, relating to suits for rent, contains an exception and a proviso. It is contended on behalf of the appellants that as the operation of Section 586, Civil Procedure Code, does not depend on the actual institution of Small Cause Courts in any given place, so its operation is limited to suits other than those specified in the schedule without regard to the question whether action has been taken under the proviso already mentioned. A suit for recovery of rent (other than house-rent) is, as I understand the argument, marked off by the Legislature as a suit not of the Small Cause Court nature. Therefore the question whether such a suit is or is not actually triable by such a Court is no less immaterial than is the question whether such Court exists to try it. I am unable to follow this argument. It seems to be assumed in the argument that cases cognizable by a Small Cause Court form a class of cases, having inherent and distinctive qualities in common. But that is not the fact under the present Act. The Legislature has declined the task of ascertaining affirmatively what suits are to be deemed Small Causes or even of declaring to what general class such suits belong. Except that they are Small Causes, suits belonging to that category may, for aught that appears in the Act, have no qualities in common, It is only by examining the schedule and seeing what is not a Small Cause that it can be decided that any individual suit is a Small Cause. This being so, 'when it is said that a suit is of the nature of suits cognizable by Small Cause Courts, what must be meant is that is not a suit such as is named in the schedule. When it is a suit the cognizance of which by a. Small Cause Court is barred by any enactment for the time being in force, I suppose nobody would assert that it is in the nature of suits cognizable by such Courts, seeing that clause 44 of the schedule expressly provides for the legislative addition of new cases to the exceptions. In the same way as it seems to me, clause 8 provides for the exclusion of certain cases from the list of exceptions or for the cancellation of that particular exception. The mode in which the cancellation is effected is surely immaterial; the result is the same whether it is brought about by the direct Act of the Legislature or by an Act of Government authorized by the Legislature. To my mind it is, in the legal sense of the term, absurd to say that a suit for Rs. 400 claimed as rent might, but for the fact that the District Munsif's jurisdiction under the Act was limited to suits not exceeding Rs. 200 in value, be tried as a Small Cause, and at the same time to deny that such suit is of the nature of suits cognizable by Courts of Small Causes. Some of the cases cited by the Honourable Sir V. Bhashyam Aiyangar had reference to the old Small Cause Courts Acts, the scheme of which is totally different from that which is adopted in the present Act. In those Acts some attempt was made to describe in positive terms the nature of the suits intended to be designated as Small Cause. There was reason therefore for holding that, when a suit was found to possess that nature, it was intended to be treated as such for the purpose of Section 586 of the Code. The case in Musa Miya Saheb v. Sayad Gulam Husein Mahomed I.L.R. (1899) M. 229 is one which, if it had to be decided with reference to the Act of 1887, must, in my opinion, have been decided in favour of the appellant because, as I have already shown, clause 44 of the schedule allows for suits which are not within the schedule being added to it. Taking the schedule to the Act as the index by which it can be ascertained what is a Small Cause, I am of opinion that we must have regard to all the provisions of the schedule and that, if it is found that a suit for rent could legally be tried by a Small Cause Court, that suit is a Small Cause and, therefore, a second appeal is precluded.

Subrahmanin Aiyar, J.

5. The provision contained in Section 586 of the Code of Civil Procedure, ' No Second Appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Rs. 500' and those of the Provincial Small Cause Courts Act which relate to the nature of suits that are cognisable by Small Cause Courts as well as those which relate to suits excepted from the cognizance of those Courts are provisions applicable quite generally: It is, therefore, as urged by Sir V. Bhashyam Alyangar on behalf of the appellants, almost certain that the words ' any suit of the nature cognizable in Courts of Small Causes' in Section 586 were intended to comprise suits which are cognizable by any Court of Small Causes by virtue of the provisions of the Small Cause Courts Act itself, but not suits which may become cognizable by Small Cause Courts under special circumstances only, such as under the authority conferred on them by a Local. Government in pursuance of the discretionary power exercisable by such a Government under the proviso to Article 8 of the second schedule of Act IX of 1887. That very singular results would follow from holding otherwise is shown by, among others, the case put by way of illustration by Sir V. Bhashyam Aiyangar in the course of his argument. Suppose a suit for rent other than house-rent not exceeding Rs. 500 is brought in a Court within the jurisdiction of which the cause of action arose and which Court is competent to entertain the suit as a Court of ordinary jurisdiction, though not as a Court empowered to take cognizance of Small Cause suits. In such a case, 'according to the contentian for the respondents the suit must, with reference to the question whether a second appeal lies or not, be treated as one not of the nature cognizable in Courts di Small Causes. If, however, as a suit for the same rent is instituted in a Court which is empowered to take cognizance of Small Causes and within the jurisdiction of which the defendant resides, though the cause of action did not arise therein, the suit must, for the purpose of determining whether a second appeal lies or not. be held, according to the respondents, to be of the nature cognizable in Courts of Small Causes. In the absence of very clear language pointing to the conclusion that a rule leading to so anomalous a result was intended to be laid dawn, I find it impossible '-to uphold the contention on behalf of the respondents. The point, now raised, was substantially raised in Ramachandra Raghunath v. Abaji Rastya I.L.R. (1899) M. 229 which was decided when the Code of 1859 as amended by Act XXIII of 1861, was in force. Couch, C.J. and Gibbs, J, came there to the same conclusion as that adopted in Vedachala Mudali v. Ramasami Raja. I.L.R. (1882) B. 100. That when the Code of 1877 was passed the Legislature did not think it necessary to introduce any change in the language of Section 586 of that Code corresponding to the provision with reference to which Ramachandra Baghunath v. Abaji Rastya I.L.R. (1899) M. 229 was decided shows that that decision was understood to be right. And when, with reference to the section last referred to, a similar point arose in Must Miya Saheb v. Sayad Gulam Husein Mahomad 2 Sargent, C. Jrand Melvill, J, decided the point in conformity with the principle on which Couch, C.J. and Gibbs, J., had acted. Sargent, C.J. pointed out that the circumstance that the class of cases, to which the one that Court was there concerned with belonged, had been removed by a special enactment from the jurisdiction of Small Cause Courts did not alter the nature of the suit, by which must be understood the jural relations between the parties. That this decision is perfectly correct will be manifest if the true effect of the enactment Section 15 of Bombay Act X of 1876 is borne in mind. Now that section makes every suit to which Government or a public officer in his official capacity is a party, cognizable by a District Court alone and not by a Subordinate Court or. a Court of Small Causes. Such an enactment, it is obvious, does not repeal or modify the provisions of the Small Cause Courts Act explaining the nature of suits cognizable by such Courts. The enactment merely creates a privilege in favour of certain classes of parties in all suits inclusive of suits of the nature cognizable in Courts of Small Causes. It is scarcely necessary to say that such a privilege does not affect the nature of suits cognizable by Small Cause Courts, i.e., the character of the legal relation which gives rise to suits ordinarily triable by those Courts. It would be as unreasonable to hold that the privilege referred to does affect the legal relation between the parties, as it would be to hold that a legal relation, day that of buyer and seller, would be affected by the circumstance that the buyer chances to be a Hindu or Mahomedan, Christian or Budhist. If the docision of Sargent, C.J. and Melvill,. had been different it would have resulted in the view that, for instance, a suit for the price of goods sald to an officer of Government would in Bombay not be of the nature cognizable by Courts of Small Causes, though a suit for the price of goods sold to a private individual would there be of such a nature. It would also have followed that a suit for price of goods sold to a Government officer would in Madras unlike in Bombay be of the nature of suits triable by Small Cause Courts as no enactment like Section 15 of Act X of 1876 referred to existed in the former Presidency. Surely it must be taken that the Legislature did not intend that the words' of the nature cognizable in Courts of Small Causes ' should have one meaning in Bengal another in Madras, a third in Bombay and so on, but that the intention was that the words should be understood in one and the same sense in all the provinces to which the Civil Procedure Code extended and under all circumstances. How then can it be held that the legal relation which gives rise to a claim for rent is in any way affected by the circumstance that the claim may be taken cognizance of by a particular Court only under certain circumstances? I would only add that the decision of the Calcutta High Court in the recent case of Rango Boy v. Holloway I.L.R. (1899) M. 229 as to the meaning of Section 586 of the present Code proceeds on the same principle as that on which the Bombay decisions rest:

6. I am therefore of opinion that the construction contended for on behalf of the appellants is the sound construction and that the decision in Vedachala Mudali v. Bamasami Raja is correct.

Benson, J.

7. The question referred for our decision is ' whether a suit for rent is a suit of the nature cognizable in Courts of Small Causes, within the meaning of Section 586, Civil Procedure Code.'

8. There is no question but that a suit for house rent is of a nature cognizable in Courts of Small Causes for it is cognizable in such Courts under Section 15(2) of the Provincial Small Cause Courts Act (IX of 1887). I take it that the reference was intended to refer only to a suit for rent, other than house-rent. The answer to the question so limited is not free from difficulty, but in. my judgment, the correct answer is in the affirmative. The jurisdiction of the Courts in regard to taking cognizance of civil suits is derived from the Legislature. Section 15 of the Provincial Small Cause Courts Act, read with the second schedule attached to the Act, declares categorically and directly that certain suits are, or are not, cognizable by a Court of Small Causes. But with regard to suits for rent, other than house-rent, it declares them to be excepted from the cognizance of a Court of Small Causes unless the Judge of the Court of Small Causes has been expressly invested by the Local Government with authority to exercise jurisdiction in respect thereto. If he has been so invested, such suits become cognizable by a Court of Small Causes. The cognizability of such, suits by a Court of Small Causes is not determined directly by the Legislature0 but by the Local Government under an authority derived from the Legislature. In other words the 'Legislature has determined that they are of such a character or nature that the Local Government may make them cognizable by a Court of Small Causes.

9. The suits that are triable by a Court of Small Causes are, speaking broadly, suits of comparatively simple character and of small pecuniary value. Let us now, see how the Legislature deals with appeals against decrees in these suits, If the suit hag been actually tried by a Court of Small Causes no appeal at all is allowed, for Section 27 of the Provincial Small Cause Courts Act declares that the decree of the Court is final. There are however many suits which would be triable by a Court of Small Causes if one existed with local and pecuniary jurisdiction, but which are in fact tried as original suits by a District Munsif's Court because there is no Small Cause Court with local and pecuniary jurisdiction competent to try them. In these suits a first appeal is allowed by Section 340, Civil Procedure Code, but a second appeal is disallowed by Section 586, Civil Procedure Code, which enacts that 'no second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 500.

10. When the Legislature in this section speaks of suits 'of a nature cognizable in Courts of Small Causes,' I think it means suits which the Legislature has determined to be suits of such a character or nature that they are or may be made triable in a summary fashion in Courts of Small Causes without any further action on the part of the Legislature itself, though further action may be necessary by the Local Government in establishing a Small Cause Court or by investing an existing regular Court with Small Cause powers, or by investing' the Judge of the Small Cause Court with power to try suits for rent as Small Cause suits.

11. When the Legislature determines that suits of a certain character may be made triable in Courts of Small Causes without further action on the part of the Legislature, I think that those suits are of a nature cognizable in Courts of Small Causes even though the Local Government may not establish Small Cause Courts or invest any Judge with power to try Small Cause suits in general or rent suits in particular as Small Cause suits. The nature of the suit is, I think, determined once for all by the Legislature, but it leaves the Local Government to decide whether the suits shall, in tact, be tried as Small Cause suits or not, and this the Local Government does by establishing Small Cause Courts or by investing existing regular Courts with a greater or less degree of Small Cause jurisdiction. The jurisdiction may be limited as regards local area and the pecuniary value of the suits and it may or may not, be extended to suits for rent. These are all matters which depend on the will of the Local Government, but do not affect the character or nature of the suits. That was determined by the Legislature when it enacted that such suits might be tried by Courts of Small Causes, provided the Local Government should take appropriate action to establish the Court or to invest them with the necessary powers.

12. If such action be taken, then the suits are not only of a nature cognizable by Courts of Small Causes, but Become actually cognizable by those Courts. If, however, such action is not taken, then the suits do not become actually cognizable by such Courts but their nature or character as originally declared by the Legislature remains unaffected.

13. Suits for rent are, therefore, in my judgment, suits of a nature cognizable by Courts of Small Causes within the meaning of Section 586, Civil Procedure Code, and they are so universally and independently of the action which mayor may not have been taken fey the Local Government in establishing such Courts or investing the Judges with powers under the Provincial Small Cause Courts Act.

14. It may be added that this view seems to assign to the Legislature a more consistent policy than the alternative view. would be strange if the Legislature when enacting the Civil Procedure Code regarded rent suits as being of such a charaeter as to be suitable for second appeals, and yet when enacting the Small Cause Courts Act regarded them as suits which might by notification of the Local Government be made triable by a Court of Small Causes in which case not even a first appeal in regard to them would be allowed.

Davies, J.

15. I concur in the conclusion arrived at by the majority of the Court and would answer the reference in the affirmative.

16. This second appeal coming on for final hearing after the expression of the opinion of the Full Bench, the Court delivered the following.

17. This Second appeal must be dismissed.


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