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Jagan Nath Vs. Mehar Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 13 of 1963
Judge
Reported inAIR1963HP53
ActsProvincial Small Cause Courts Act, 1887 - Section 35(2); ;Himachal Pradesh (Courts) Order, 1948
AppellantJagan Nath
RespondentMehar Singh
Advocates: Bakhtawar Singh, Adv.
DispositionRevision dismissed
Excerpt:
- .....vital and real difference between a suit of the nature cognizable by a court of small causes and a suit cognizable by a court of small causes. a suit may be of the nature cognizable by a court of small causes and yet it may not be cognizable by a court ofsmall causes on account of its value. stated differently while the nature of a particular suit may be civil and it may not fall within one of the exceptions specified in the second schedule to the provincial small cause courts act it may not be cognizable by a court of small causes on account of its value. the conjoint effect of the second proviso to para 35 and of para 2 (v) of the courts order is that an application in revision is barred in cases in which the value of the subject-matter of the suit is less than one thousand rupees even.....
Judgment:

Capoor, J.C.

1. This application in revision is directed against the appellate judgment and decree of the learned District Judge Mahasu, Sirmur, Bilaspur and Kinnaur Districts whereby an appeal preferred by the petitioner against an order of the learned Senior Sub-Judge Sirmur dismissing the suit filed by him was rejected.

2. The preliminary question that arises for consideration is as to whether the application in revision is competent.

3. The contention advanced on behalf of the petitioner is that the second proviso to para 35 (1) (b) of Himachal Pradesh (Courts) Order 1948, hereinafter to be referred as the Courts Order is in conflict with Section 15 (2) of the Provincial Small Cause Courts Act No. IX of 1887. The relevant portions of those provisions read as below :

'Para 35 (1) of the Courts Order-

(1) The Court of Judicial Commissioner may call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it, and

__________________________________________________________________________________________________ Provided that-

(ii) No such application shall be admitted in a small cause suit under the value of one thousand rupees or in an unclassed suit ....... two hundred rupees.' Section 15 of the Provincial Small Cause Courts Act:

'A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.' (2) Subject to the exceptions specified in that 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 five hundred rupees shall be cognizable by a Court of Small Causes.'

4. It will have been noticed that while the provision of law contained in the Provincial Small Cause Courts Act relates to the cognizance of a suit of a civil nature by a Court of Small Causes para 35 of the Courts Order provides for the cases in which an application in revision can be entertained.

5. The words 'a small cause suit' as used in the aforesaid para of the Courts Order have been defined to mean a suit of the nature cognizable by a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 vide para 2 (v). There is a vital and real difference between a suit of the nature cognizable by a Court of Small Causes and a suit cognizable by a Court of Small Causes. A suit may be of the nature cognizable by a Court of Small Causes and yet it may not be cognizable by a Court ofSmall Causes on account of its value. Stated differently while the nature of a particular suit may be civil and it may not fall within one of the exceptions specified in the second schedule to the Provincial Small Cause Courts Act it may not be cognizable by a Court of Small Causes on account of its value. The conjoint effect of the second proviso to para 35 and of para 2 (v) of the Courts Order is that an application in revision is barred in cases in which the value of the subject-matter of the suit is less than one thousand rupees even though the suit be of a nature cognizable by a Court of Small Causes or in other words be a suit of a Civil nature not excepted from the cognizance of a Court of Small Causes.

6. The value of the subject-matter of a suit is not the same thing as and is not synonymous with its nature. My attention on behalf of the learned counsel for the petitioner has also been invited to para 24 of the Courts Order and it has been contended that that para was in conflict with the second proviso to para 35 referred to above. The former para empowers the Chief Commissioner to confer on a Subordinate Judge the jurisdiction of the Judge of a Court of Small Causes under the Provincial Small Cause Courts Act for the trial of small cause suits upto a value not exceeding rupees five hundred.

I am clear that there is no conflict between that provision and the proviso to para 35. The latter para does not provide that a Subordinate Judge may take cognizance of a suit of Civil nature the value of which may be more than rupees five hundred. I will be repeating myself in observing that the subject-matter of the aforesaid two provisions of the Courts Order is different and that while the one deals with cases which may be taken cognizance of by a Court of Small Causes the other deals with the cases in which an application in revision can lie and that a suit may be 'a small cause suit' i.e., of a nature cognizable by a (Court of Small Causes and yet it may not be cognizable by such Court.

The suit which has given rise to this application in revision was a small cause suit inasmuch as it was of a civil nature and was not covered by the exceptions specified in the second schedule to the Provincial Small Cause Courts Act and as its value was less than rupees one thousand an application in revision against the decision arrived at therein was barred by virtue of second proviso to para 35 (1) (b). It, however, was not cognizable by a Court of Small Causes in Himachal Pradesh on account of its value and it may be mentioned with advantage that it has not been tried as a Small Cause Court suit. Different considerations may have arisen if a small cause suit had been defined to be a suit cognizable by a Court of Small Causes, The contention advanced on behalf of the petitioner though plausible is not sustainable. The second proviso referred to above is not in conflict either with para 24 of the Courts Order or with Sub-section (2) of Section 25 of the Provincial Small Cause Courts Act, 1887.

It has also been urged in the reply to the office objection that the provision contained in para 35 (iii) of the Courts Order which excluded the application of Section 115 of C. P. C. was ultra vires but the point was not even touched by the learned counsel for the petitioner in the course of argument.

7. The application in revision does not lie and is accordingly not admitted.


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