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K. Joseph Thompson and anr. Vs. Nallathampi Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ389
AppellantK. Joseph Thompson and anr.
RespondentNallathampi Nadar
Cases ReferredSoundaram Ayyar v. Sennia Naickan
Excerpt:
- - 1 has clearly admitted in his cross-examination that he had no transaction with the second petitioner and that he had not even issued any notice of suit before he instituted the suit......1976 says that 'no appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees'. the, present suit is for less than that amount. the only question, therefore, is as to whether the suit filed was a suit of the nature cognizable by courts of small causes. in this connection, the learned counsel for the petitioners invited my attention to the decision of the full bench of this court in soundaram ayyar v. sennia naickan (1900)ilr23mad 547 : 10 mlj 329, where sir arnold white, cj., had observed with reference to section 586 of the code of civil procedure thus:the object of this section, as it seems to me is to take away the.....
Judgment:

A. Varadarajan, J.

1. This civil revision petition has been filed to revise the judgment of the learned Subordinate Judge, Kuzhithurai in A. S. No. 192 of 1978 reversing the judgment of the learned District Munsif, Kuzhithurai in O.S. No. 461 of 1977 and decreeing the suit as prayed for with costs throughout.

2. The suit was filed for recovery of Rs. 758.42 as principal and interest of Rs. 98.54 at 12 per cent. per annum from 25th May, 1976 on the allegation that the plaintiff/ respondent was subscribing to 1/6th share in a chit for which the monthly premium was Rs. 300, namely, Rs. 50 per mensem and he had paid actually a sum of Rs. 758.42 upto 25th May, 1976 in the course of 21 months as premium and that the defendants did not conduct the chit later and he was, therefore, en-titled to recover the aforesaid sum of Rs. 856.96. The respondent had sent a notice Exhibit A-1, dated 15th July, 1977 before the institution of the suit and it was returned unserved. He alleged that the chit was conducted by the first petitioner as the foreman and that the second petitioner the brother-in-law of the first petitioner was the real foreman and he therefore filed the suit against both the petitioners.

3. The second petitioner disclaimed any interest in the chit and contended that he was not liable. The first petitioner contended that the respondent had taken the chit in the 26th call and the payment was made to him on 18th November, 1976 under the receipt Exhibit B-6 and that the respondent had accepted on that date the promissory note, Exhibit B-2 for the balance of instalments payable in respect of the chit and he was therefore not liable to pay any amount to the respondent.

4. The trial Court accepted the defence and dismissed the suit believing the evidence of D.Ws 1, 5, 3 who had spoken about the execution of the receipt and the promissory note Exhibits B-6 and B-2 respectively by the plaintiff and also observing that the respondent as P.W.1 had admitted in cross-examination that he had no transaction with the second petitioner and that he had not issued any notice of suit to the second petitioner and the second petitioner, therefore, is not a necessary party to the suit. But on appeal the learned Subordinate Judge rejected the contention that no appeal was competent in view of Section 96(4) of the Code of Civil Procedure and he disbelieved the evidence of D.Ws. 1 to 3 and accepted the evidence of P.W. 1 and found that Exhibits H-2 and B-6 were not genuine, that the second petitioner was the real foreman of the chit and that both the petitioners were liable for the suit amount and he allowed the appeal and decreed the suit with costs throughout.

5. Mr. M. Srinivasan, the learned Counsel for the petitioners submits that the finding of the lower Appellate Court that the second petitioner was the real foreman is totally not acceptable having regard to the admission made by P.W. 1 in cross-examination, as mentioned by the trial Court, that he had no dealing with the second petitioner at all and had not even sent any suit notice to the second petitioner. The learned Counsel further submits that in view of Section 96(4) of the Code of Civil Procedure, the appeal was not competent and it was not open to the learned Subordinate Judge to go into the question of facts and come to the conclusion that Exhibits R-2 and B-6, which had been believed by the trial Court to be genuine, are not genuine by disbelieving the evidence of D.Ws. 1 to 3.

6. Prima facie, there can be objection to the submission of the learned Counsel for the petitioners that the finding of the lower Appellate Court regarding the liability of the second petitioner is wrong, for the learned District Munsif who tried the suit has observed in para-graph 13 of his judgment that the plaintiff examined as P.W. 1 has clearly admitted in his cross-examination that he had no transaction with the second petitioner and that he had not even issued any notice of suit before he instituted the suit. The conclusion of the learned District Munsif that the second petitioner was an unnecessary party to the suit appears to be unassailable.

7. Section 96(4) of the Code of Civil Procedure introduced by the amended Act CIV of 1976 says that 'No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees'. The, present suit is for less than that amount. The only question, therefore, is as to whether the suit filed was a suit of the nature cognizable by Courts of Small Causes. In this connection, the learned Counsel for the petitioners invited my attention to the decision of the Full Bench of this Court in Soundaram Ayyar v. Sennia Naickan (1900)ILR23Mad 547 : 10 MLJ 329, where Sir Arnold White, CJ., had observed with reference to Section 586 of the Code of Civil Procedure thus:

The object of this section, as it seems to me is to take away the right of second or special appeal where the value of the subject-matter of the original suit does not exceed Rs. 500 in the case of all suits which as regards their subject-matter would be within the jurisdiction of Courts of Small Causes but which are outside that jurisdiction by reason of the amount claimed being beyond the pecuniary limit of the Small Cause jurisdiction ....By reason of the jurisdiction of a Small Cause Court being limited as regard amount, if the amount claimed exceeds the limit, although the suit is 'of a nature cognizable' 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 586 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.

8. In the present case also, the suit would have been of a small causes nature if it had been instituted in a Sub-Court, an it could not be stated to be a suit not of that nature merely because it was instituted in a District Munsifs Court which had jurisdiction to entertain small cause suit only upto Rs. 500. In the Full Bench decision, Benson, J., has observed that:

The suits that are triable by Courts of Small Causes are, speaking broadly, suits of a 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 has 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 Munsifs 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 540, Civil Procedure Code, but a second appeal is disallowed by Section 586, Civil Procedure Code, which enacted 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'. When the Legislature in this section speaks of the suits 'of a nature cognizable in Courts of Small Causes,' T 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.

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 Cause 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 fact, 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 loss 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 Courts or to invest them with the necessary powers.

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.

9. In view of the observation made in this Full Bench decision, it is not possible to agree with the learned Counsel for the respondent that merely because the District Munsif, in whose Court the present suit has been filed, has no jurisdiction to entertain a small cause suit exceeding- Rs. 500 in value, the suit should be held to be of a nature not cognizable by a Small Cause Court. I agree with the learned Counsel for the petitioners and hold that the suit for recovery of money is of the nature cognizable by a Court of Small Causes though the suit, if it had been instituted as a small cause suit, would be beyond the pecuniary jurisdiction of the District Munsif sitting on the small cause side and that in view of Section 96(4) of the Code of Civil Procedure, which deals with the first appeals and is corresponding to the old Section 586 of the Code of Civil Procedure, in relation to the second appeals, the lower Court has no jurisdiction to go into the evidence and the question of facts as in a regular first appeal and come to the conclusion that Exhibits B-2 and B-6 are not genuine disbelieving the evidence of D.Ws. 1 to 3 and to hold that the plaintiff-respondent is entitled to recover the suit amount.

10. In the result, the civil revision petition is allowed and the judgment and the decree of the lower appellate Court are set aside and the appeal is remanded to the lower appellate Court for the appeal memo being returned to the respondent-plaintiff for presentation as a civil revision petition before proper Court. The parties shall bear their respective costs throughout.


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