Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.4873 of 2006
Radheshyam s/o Zumbarlal Chandak,
Aged about 60 years,
R/o Prabhat Chowk,
Amravati. … Petitioner
Versus
1. The District Judge, Amravati.
2. Sou. Medha w/o Prashantrao Popalkar,
Aged about 38 years,
R/o Ranpise Nagar,
Akola. … Respondents
Shri J.T. Gilda, Advocate for Petitioner.
Smt. S.S. Wandile, AGP for Respondent No.1.
Shri J.J. Chandurkar, Advocate for Respondent No.2.
Coram : D.K. Deshmukh & R.K. Deshpande, JJ.
Date of Reserving the Judgment : 14-9-2010
Date of Pronouncing the Judgment : 5-10-2010
Judgment (Per R.K. Deshpande, J.) :
1. This writ petition is placed before us to decide the following
question of law, upon reference being made by the learned Single Judge
(Shri B.P. Dharmadhikari, J.) as per his order dated 26-4-2010 :
“Whether the Court invested with small cause powers under
Section 28 of 1869 Act can function as such and exercise
unlimited jurisdiction under Chapter IV A-1 of 1887 Act,
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without any ceiling on its pecuniary jurisdiction ?
2. The learned Single Judge of this Court, Shri M.S. Deshpande, J.
(as he then was), in his judgment in Salimkhan s/o Azimkhan v.
Mohammad Ibrahimkhan , reported in 1987 Mh.L.J. 283 , has taken the
view that a Civil Judge, Senior Division, invested with the jurisdiction of
the Court of Small Causes by the High Court under Section 28 of the
Bombay Civil Courts Act, 1869, has jurisdiction to try the suits or
proceedings between a licensor and licensee, or a landlord and tenant
irrespective of the value of the subject-matter of such suits or
proceedings, as contemplated by Section 26 under Chapter IV-A-1 of the
Provincial Small Cause Courts Act, 1887.
3. Disagreeing with the aforesaid view,
Shri B.P. Dharmadhikari, J., has expressed the opinion that Section 28 of
the Bombay Civil Courts Act, 1869 does not confer the power upon the
High Court to invest any Civil Judge with the jurisdiction of a Court of
Small Causes for trial of suit cognizable by such Court, irrespective of the
value of the subject matter of such suit and, therefore, any Civil Judge
invested with the jurisdiction of the Court of Small Causes under Section
28 of the Bombay Civil Courts Act, 1869 cannot exercise jurisdiction to
entertain and try the suit or proceedings between a licensor and licensee,
or a landlord and tenant relating to recovery of possession of any
immovable property, irrespective of the value of the subject-matter of
such suit or proceedings.
4. The factual background leading to reference can be stated for
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the sake of convenience and to appreciate the controversy, as under :
The petitioner is the tenant/defendant in the Small Cause Suit
No.5 of 2006 filed by respondent No.2/landlady on 3-1-2006 for
ejectment, possession, arrears of rent and damages, which was allotted
th
to the Court of 6 Joint Civil Judge, Junior Division, Amravati. The
petitioner/tenant filed his written statement on 13-3-2006 opposing the
claim of respondent No.2/landlady. The petitioner/tenant filed an
application Exhibit 14 on 23-3-2006, in Small Cause Suit No.5 of 2006 for
framing the issues, contending that the Court of Civil Judge, Junior
Division, has no power to try the said suit as small cause suit for the
reason that the valuation of the suit was given in para 10 of the plaint as
Rs.24,300/-, for money claimed of Rs.12,300/-, for arrears of rent as
Rs.9,000/-, and for damages as Rs.300/- per day.
5. The Trial Court passed an order rejecting application
Exhibit 14 on 10-4-2006. It was held that the suit was valued for the
purposes of court fee and jurisdiction at Rs.22,600/- and in view of the
decisions of this Court in Salimkhan s/o Azimkhan v. Mohammad
Ibrahimkhan , reported in 1987 Mh.L.J. 283 ; Urdu Education Society and
another v. Dinshaw Naoraji Printer , reported in 1994 Mh.L.J. 1650 ; and
Kutubunisa Begum v. Bilquees Jahan Begum , reported in 1996(1) Mh.L.J.
184 , there is no bar on the aspect of pecuniary jurisdiction and the Court
is at liberty to try the suit as small cause suit irrespective of its valuation.
The application was, therefore, rejected. This order is subject-matter of
challenge in the present writ petition.
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6. Shri Gilda, the learned counsel appearing for the
petitioner/tenant, relying upon the provision of Section 28 of the Bombay
Civil Courts Act, 1869 (for short, hereinafter referred to as “the Civil
Courts Act”), has urged that the said provision does not confer power
upon the High Court to invest any Civil Judge with the jurisdiction of the
Court of Small Causes for the trial of the suits or proceedings cognizable
by such Court irrespective of the value of the subject matter of such suit
or proceedings, as contemplated by Section 26 of the Provincial Small
Cause Courts Act, 1887 (for short, hereinafter referred to as “the Small
Cause Courts Act”). He submits that the power of the High Court under
Section 28 of the Civil Courts Act pertains to the jurisdiction of the Court
of Small Causes, for the trial of the suits other than those specified under
Section 26 of the Small Cause Courts Act, in view of the pecuniary
restrictions for conferment of such power contained in Section 28 of the
Civil Courts Act. Shri Gilda supported the view taken by the learned
Single Judge in his order of reference.
7. Shri Chandurkar, the learned counsel appearing for
respondent No.2/landlady, relying upon the provisions of Sections 4, 5,
15(2), 16, 26, 32 and 33 of the Small Cause Courts Act, urged that the
Civil Judge invested with the jurisdiction of the Court of Small Causes for
the trial of suits cognizable by such Courts, as contemplated by Section
28 of the Civil Courts Act, is competent to exercise the jurisdiction of the
Court of Small Causes under Section 26 of the Small Cause Courts Act,
irrespective of the value of the subject matter of such suits or
proceedings. He supported the view taken by the learned Single judge
in Salimkhan's case, cited supra.
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8. In order to consider the question under reference, the
relevant provisions of the Bombay Civil Courts Act, 1869 will have to be
seen first. Section 21 of the said Act deals with the establishment of Civil
Courts subordinate to District Court in each District by the State
Government and the Judges appointed in such subordinate Courts are to
be called as the Civil Judges, as contemplated by Section 22 of the said
Act. Section 22A of the said Act empowers the State Government to fix
and alter the local limits of the ordinary jurisdiction of the Civil Judges by
issuing notification in the official gazette. Section 24 of the said Act
states that the Civil Judges shall be of two classes. The jurisdiction of a
Civil Judge, Senior Division, extends to all original suits and proceedings
of civil nature, whereas the jurisdiction of a Civil Judge, Junior Division,
extends to all original suits and proceedings of a civil nature wherein the
subject matter does not exceed its amount or value of one lakh rupees.
9. Thus, all the suits or proceedings of civil nature wherein the
subject matter does not exceed amount or value of rupees one lakh are
to be tried by the Civil Judge, Junior Division, within the local limits of
ordinary jurisdiction fixed by the State Government under Section 22A of
the said Act. If the value of the subject matter of the suits or proceedings
exceeds rupees one lakh, then the same is required to be tried by the
Civil Judge, Senior Division, within the local limits of jurisdiction fixed by
the State Government under Section 22A of the said Act.
10. The Provincial Small Cause Courts Act, 1887 was brought into
force, subsequent to the Civil Courts Act. Chapter II of the said Act deals
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with the constitution of Courts of Small Causes and Section 5 under the
said Chapter deals with the establishment of Courts of Small Causes. It
empowers the State Government to establish the Courts of Small Causes
and sub-section (2) empowers the State Government to define the local
limits of jurisdiction of the Court of Small Causes. Chapter III of the said
Act deals with the jurisdiction of the Courts of Small Causes and
Section 15 under the said Chapter deals with the cognizance of suits by
Courts of Small Causes. The said provision being relevant is reproduced
below :
“ 15. Cognizance of suits by Courts of Small Causes .
(1) A Court of Small Causes shall not take cognizance of the
suits specified in the second schedule as suit 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
two thousand rupees shall be cognizable by a Court of Small
Causes mentioned in the orders.
(3) Subject as aforesaid, the State Government may, by
order in writing, direct that all suits of a civil nature of which
the value does not exceed five thousand rupees shall be
cognizable by a Court of Small Causes mentioned in the
order.”
Sub-section (1) of Section 15 reproduced above prohibits a Court of Small
Causes from taking cognizance of the suits specified in the second
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schedule, as a suit excepted from the cognizance of a Court of Small
Causes. The second schedule under the said Act contained entries no.(4)
and (8), which are reproduced below :
“(4) a suit for the possession of immoveable property or for
the recovery of an interest in such property.
(8) a suit for the recovery of rent, other than house rent,
unless the Judge of the Court of Small Causes has been
expressly invested by the State Government with authority to
exercise jurisdiction with respect thereto.”
Thus, a suit for the possession of immovable property or for the recovery
of an interest in such property or a suit for the recovery of rent other than
house rent was excluded from the jurisdiction of a Court of Small Causes
and essentially a Court of Small Causes was invested with the jurisdiction
to try the suits of a civil nature of which the value does not exceed
rupees two thousand, in terms of sub-section (2) of Section 15,
reproduced above. However, this is subject to the exceptions specified in
the Schedule and to the provisions of any enactment for the time being in
force.
11. Section 16 of the said Act deals with the exclusive jurisdiction
of the Court of Small Causes, the same being also relevant, is reproduced
below :
“ 16. Exclusive jurisdiction of Courts of Small Causes .
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
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having jurisdiction within the local limits of the jurisdiction of
the Court of Small Causes by which the suit is triable.”
A combined reading of Sections 15 and 16, reproduced above, makes it
clear that the place where a Court of Small Causes is established under
Section 5 of the Act prescribing the local limits of its jurisdiction, the
jurisdiction of any other Court established at the same place stands
excluded in respect of such suits or proceedings, the value of which does
not exceed rupees two thousand. The position thus, was that although
the Court of Civil Judge, Junior Division, is empowered to entertain and try
the suits or proceedings of a civil nature wherein the subject matter does
not exceed its amount or value of rupees one lakh, as contemplated by
Section 24 of the Bombay Civil Courts Act, 1869, its jurisdiction was
excluded at a place where the Court of Small Causes is established by the
State Government, to try and decide the suits of a civil nature, the value
of which does not exceed rupees two thousand.
12. In case of a place where a Court of Small Causes has not been
constituted by the State Government, as prescribed by Section 5 of the
Small Cause Courts Act, Section 28(1) of the Civil Courts Act empowers
the High Court to invest any Civil Judge with jurisdiction of a Court of
Small Causes. The said provision, being relevant, is reproduced below :
“28(1) The High Court may invest any Civil Judge with
the jurisdiction of a Court of Small Causes for the trial of suits
cognizable by such Courts upto such amount as it may deem
proper, not exceeding in the case of a Civil Judge (Senior
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Division) twelve thousand rupees and in the case of a Civil
Judge (Junior Division) six thousand rupees.”
Thus, where the Courts of Small Causes are not constituted, the High
Court is empowered to invest any Civil Judge with the jurisdiction of a
Court of Small Causes for the trial of suits cognizable by such Courts upto
such amount as it deems proper, not exceeding rupees twelve thousand,
in the case of Civil Judge, Senior Division, and in the case of Civil Judge,
Junior Division, rupees six thousand.
13. At this stage, it is required to be seen that under the
provisions of the Civil Courts Act, there is no pecuniary limit for exercise
of ordinary original civil jurisdiction by a Civil Judge, Senior Division, as in
view of Section 24 of the said Act, the jurisdiction of Civil Judge, Senior
Division, extends to all original suits or proceedings of a civil nature and
the jurisdiction of Civil Judge, Junior Division, extends to all suits or
proceedings of a civil nature, wherein the subject matter does not exceed
its amount or value of rupees one lakh. In contrast to this, the provision
of Section 28(1) of the Civil Courts Act specifies the pecuniary limit of
rupees twelve thousand for Civil Judge, Senior Division, and of rupees six
thousand for Civil Judge, Junior Division, to exercise jurisdiction. In view
of this, the ordinary original civil jurisdiction conferred upon Civil Judge,
Senior Division, and Civil Judge, Junior Division, under Section 24 of the
Civil Courts Act cannot be read into the provision of Section 28(1) of the
said Act.
14. Section 32 of the Small Cause Courts Act deals with the
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application of the Act to Courts invested with jurisdiction of Court of Small
Causes, the same being relevant is also reproduced below :
“ 32. Application of Act to Courts invested with
jurisdiction of Court of Small Causes .--(1) So much of
Chapters III, VI and IV-A1 as relates to--
(a) the nature of the suits cognizable by Courts of
Small Causes,
(b) the exclusion of the jurisdiction of other Courts in
those suits,
(c) the practice and procedure of Courts of Small
Causes,
(d) appeal from certain orders of those Courts and
revision of cases decided by them, and
(e) the finality of their decrees and order subject to
such appeal and revision as are provided by this Act,
applies to Courts invested by or under any enactment for the
time being in force with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that jurisdiction by
those Courts.
(2) Nothing in sub-section (1) with respect of Courts
invested with the jurisdiction of a Court of Small Causes
applies to suits instituted or proceedings commenced in those
Courts before the date on which they were invested with that
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jurisdiction.”
It is thus apparent that where the High Court has invested such powers of
a Court of Small Causes upon Civil Judges, as contemplated under Section
28 of the Civil Courts Act, the provisions of Chapters III and IV relating to
items (a) to (e) of sub-section (1) of Section 32, reproduced above, were
made applicable to such Courts. In the absence of vesting of such powers
under Section 28(1) of the Civil Courts Act, the provisions of Chapters III
and IV relating to items (a) to (e) of sub-section (1) of Section 32 would
not be available to Civil Judge, Senior Division, or Civil Judge, Junior
Division, while exercising its ordinary original civil jurisdiction under
Section 24 of the Civil Courts Act.
15. Section 33 of the Small Cause Courts Act deals with the
application of the Act and the Code to Court so invested as to two Courts.
The said provision is reproduced below :
“ 33. Application of Act and Code to Court so invested
as to two Courts .-- A Court invested with the jurisdiction of
a Court of Small Causes, with respect to the exercise of that
jurisdiction, and the same Court, with respect to the exercise
of its jurisdiction in suits of a civil nature which are not
cognizable by a Court of Small Causes, shall, for the purposes
of this Act and the Code of Civil Procedure (14 of 1882) be
deemed to be different Courts.”
The aforesaid provision clearly maintains the distinction between the
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suits of a civil nature to be cognizable by a Court of Small Causes and
those not cognizable by a Court of Small Causes. It contemplates that
though the same Court exercises powers under the Small Cause Courts
Act and under the Code of Civil Procedure, it shall be treated as different
Courts for the said purposes.
16. By Maharashtra Act No.24 of 1984, the jurisdiction of a Court
of Small Causes was enlarged by deleting entries no.(4) and (8) from
second schedule of the Small Cause Courts Act and introducing a
provision of Section 26(1) under Chapter IV-A1 relating to recovery of
possession of certain immovable property and certain licence fees or rent.
The said provision being relevant for the purposes of the present case is
reproduced below :
“ 26. Suits or proceedings between licensors and
licensees or landlords and licensees or landlords and
tenants for recovery of possession of immovable
property and license fees or rent, except those to
which other Acts apply, to lie in Court of Small Causes .
(1) Notwithstanding anything contained elsewhere in this
Act, but subject to the provisions of sub-section (2), the Court
of Small Causes shall have jurisdiction to entertain and try all
suits and proceedings between a licensors and licensee or a
landlord and tenant, relating to the recovery of possession of
any immovable property situated in the area within the local
limits of the jurisdiction of the Court of Small Causes, or
relating to the recovery of the licence fee or charges or rent
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therefor, irrespective of the value of the subject matter of
such suits for proceedings.”
The effect of aforesaid amendment was that a Court of Small Causes
constituted or established under Section 5 of the Small Cause Courts Act,
was conferred with the jurisdiction to entertain and try all suits and
proceedings between a licensor and licensee, or a landlord and tenant,
relating to the recovery of possession of any immovable property situated
in the area within the local limits of the jurisdiction of the Court of Small
Causes, or relating to the recovery of licence fees or charges or rent
therefor, irrespective of the value of the subject matter of such suits or
proceedings.
17. We are not concerned with a case where a Court of Small
Causes has been constituted for the local limits of District Amravati.
Undisputedly, there is no Court of Small Causes established by the State
Government, as contemplated by Section 5 of the Small Cause Courts
Act. We are concerned with a position where the High Court has, in
exercise of its powers under Section 28(1) of the Civil Courts Act,
invested a Civil Judge, Junior Division, Amravati, with the jurisdiction of a
Court of Small Causes for trial of such suits cognizable by a Court of Small
Causes. Undisputedly, the suit in question has been registered as Small
Cause Suit No.5 of 2006 and it is valued for the purposes of court fees
and jurisdiction at Rs.22,600/-, which is in excess of the pecuniary limits
of jurisdiction under Section 28(1) of the Civil Courts Act. The question is,
where the value of subject matter of the suits or proceedings exceeds the
pecuniary limit of rupees twelve thousand or rupees six thousand, as the
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case may be, specified under Section 28(1) of the Civil Courts Act,
whether a Civil Judge invested with the jurisdiction of the Court of Small
Causes by the High Court, for the trial of the suits cognizable by such
Courts, shall have the jurisdiction to try such a suit as a summary suit,
that too irrespective of value of the subject matter of such suit, in view of
Section 26 of the Small Cause Courts Act or it has to be tried as a regular
suit in accordance with the provisions of the Code of Civil Procedure.
18. Now turning to the judgment delivered by the learned Single
Judge of this Court in Salimkhan's case, the facts of the case were that
the suit for a decree for ejectment and mesne profits was passed by the
Civil Judge, Senior Division, Achalpur, who was invested with the
jurisdiction of a Court of Small Causes by the High Court in exercise of its
powers under Section 28(1) of the Civil Courts Act to try the suit for the
value upto Rs.1,800/-. The suit was valued for the purposes of jurisdiction
at Rs.2,700/-. It was tried as a regular suit. The tenant preferred an
appeal before the District Court. Before the District Court, it was not
disputed that the Court of Civil Judge, Senior Division, Achalpur, had
summary powers upto Rs.1,800/- only and, therefore, it was decided as a
regular suit. The question before the District Judge was that whether an
appeal lay to the District Court under Section 96 of the Code of Civil
Procedure only on the question of law. The learned District Judge decided
the case both on the question of law as well as on facts. The appeal was
dismissed, against which the tenant had preferred a writ petition before
this Court.
19. The facts in Salimkhan's case clearly show that the suit was
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valued for the purposes of jurisdiction at Rs.2,700/-, whereas the Civil
Judge, Junior Division, who was invested with powers of a Court of Small
Causes, was competent to try the suit for value upto Rs.1,800/-. Hence,
the suit was tried as regular suit. In view of this, the question whether
the Civil Judge invested with powers of Court of Small Causes should try
the suit as summary suit or as regular suit, was neither involved nor
decided. The learned Single Judge proceeds on the assumption that a
Court of Civil Judge, Senior Division, invested with the power to try small
cause suit of the value upto Rs.1,800/- under Section 28 of the Bombay
Civil Courts Act, was also a Court of Small Causes, as defined under
Section 4 of the Small Cause Courts Act, and the combined effect of
Section 4 of the Small Cause Courts Act and Section 28 of the Bombay
Civil Courts Act was that the Civil Judge, Senior Division, Achalpur, had
the jurisdiction of a Court of Small Causes, ordinarily upto a particular
limit. However, it was held that in view of the non obstante clause with
which Section 26 of the Small Cause Courts Act begins, nothing contained
in Sections 15 and 16 of the said Act would prevent the Court of Small
Causes from exercising the jurisdiction to entertain and try the suits of
the description mentioned in Section 26(1). It was thus held that
irrespective of the limit placed on the jurisdiction of the Trial Court to take
cognizance of small cause suits upto a particular value only, its
jurisdiction to entertain the suits under Section 26 of the Provincial Small
Cause Courts Act would be unaffected and it would have the jurisdiction
to entertain and decide such suits. The writ petition was, therefore,
dismissed.
20. The learned Single Judge, in his order of reference
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dated 26-4-2010, has considered the aforesaid view taken in Salimkhan's
case. It has been noted that Salimkhan's case does not consider the
provision of Section 32 of the Small Cause Courts Act, which shows the
distinction made in the Courts established under Section 4 of the Small
Cause Courts Act and other Courts invested with that jurisdiction. A view
has been taken that Section 26 of the Small Cause Courts Act, though
begins with non obstante clause, it speaks of Court of Small Causes and
thus leads one to Section 4 of Small Cause Courts Act. After referring to
various provisions right from Section 4 to Section 33 of the Small Cause
Courts Act, it has been held that if the Court invested with the powers of
Small Causes Court under Section 28 is to be treated as Court equivalent
or equal to Court of Small Causes constituted under Section 4 thereof,
there was no need to have such peculiar provision in the shape of
Sections 32 and 33 in the scheme of Small Cause Courts Act. It has been
held that Section 26 of the Small Cause Courts Act expressly overrides
the provisions contained in the said Act only and it does not and cannot
override the provisions of other enactments, like the Bombay Civil Courts
Act. It has been held that Section 28 of the Bombay Civil Courts Act does
not permit the High Court to confer jurisdiction beyond a particular limit
on Judge of other Court on whom small causes powers are invested. A
view has been taken that Section 26 of the Small Cause Courts Act deals
with the Courts established under Section 4 of the said Act and it cannot
have any effect on the powers of the High Court under Section 28 of the
Bombay Civil Courts Act. It has, therefore, been held that any Civil Judge
invested with the jurisdiction of the Court of Small Causes under
Section 28 of the Bombay Civil Courts Act cannot exercise jurisdiction to
entertain and try the suits or proceedings between the landlord and
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tenant relating to recovery of possession of immovable property,
irrespective of the value of the subject matter of the suits or proceedings.
21. In order to consider the aforesaid conflicting views, Section 4
of the Small Cause Courts Act needs to be seen and the same is,
therefore, reproduced below :
“ 4. Definition .--In this Act, unless there is something
repugnant in the subject or context, “Court of Small Causes”
means a Court of Small Causes constituted under this Act,
and includes any person exercising jurisdiction under this Act
in any such Court.”
This Section deals with the definition of the Court of Small Causes and it
is not a provision dealing with constitution or establishment of a Court of
Small Causes, as has been held in the order of reference by the learned
Single Judge. The definition is in two parts. The first part refers only to a
Court of Small Causes constituted under the said Act, i.e. under Section 5.
A Civil Judge invested with the jurisdiction of a Court of Small Causes by
the High Court in exercise of its powers under Section 28(1) of the Civil
Courts Act, cannot be a Court of Small Causes constituted
under Section 5 of the said Act for the reasons (i) that Section 4 begins
with the words “unless there is something repugnant in the subject or
context”, and Section 28(1) of the Civil Courts Act deals with a Civil Judge
invested with jurisdiction of a Court of Small Causes, which is repugnant
in the subject or context, as contemplated by Section 4; and (ii) that
there is a difference between Section 5 of the Small Cause Courts Act and
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Section 28(1) of the Civil Courts Act. Such difference being that;
(a) Section 5 deals with the powers of the State Government, whereas
Section 28(1) deals with the powers of the High Court; (b) Section 5
deals with establishment of a Court of Small Causes, whereas
Section 28(1) deals with investing of jurisdiction of a Court of Small
Causes with any Civil Judge, (c) Section 5 is place/places specific,
whereas Section 28(1) is not place/places specific, but it is a Judge or
Court specific; and (d) Section 28(1) deals with pecuniary limits of
jurisdiction to be invested by the High Court, whereas Section 5 does not
deal with pecuniary limits of a Court of Small Causes.
22. So far as the second part of the definition is concerned, it is
“inclusive of any person exercising jurisdiction under the said Act in any
such Court.” In our view, the expression “any person” used therein
speaks only of persons appointed as Presiding Officers, including the
Additional Judges under Section 8 and the Registrar under Section 12 of
the Small Cause Courts Act, to discharge the functions as a Judge. The
expression “any such Court” referred therein again pertains only to “a
Court of Small Causes” established under Section 5 of the said Act and
not to “a Civil Judge” invested with the jurisdiction of a Court of Small
Causes by the High Court under Section 28(1) of the Civil Courts Act. The
reasons for taking such views are that (i) a Civil Judge invested with the
powers of a Court of Small Causes does not occupy the position as a
Presiding Officer of a Court of Small Causes established under Section 5
of the Small Cause Courts Act, and (ii) there is no deeming provision
either under the Small Cause Courts Act or under the Civil Courts Act to
treat a Civil Judge invested with the powers of Court of Small Causes
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under Section 28(1) of the Civil Courts Act as a Court of Small Causes
established under Section 5 of the Small Cause Courts Act, and (iii) the
scheme of the Act, as has been rightly pointed out on the basis of the
provisions of Sections 4 to 33 of the Small Cause Courts Act, in the order
of reference by the learned Single Judge, clearly makes out a distinction
between “any person” exercising jurisdiction under the Act and “a Civil
Judge” invested with the jurisdiction of a Court of Small Causes under
Section 28(1) of the Civil Courts Act. In our view, therefore, the judgment
delivered by the learned Single judge of this Court in Salimkhan's case
cannot be held to proceed on the correct proposition of law that a Civil
judge invested with the jurisdiction of a Court of Small Causes under
Section 28(1) of the Civil Courts Act, was also a Court of Small Causes, as
defined under Section 4 of the Small Cause Courts Act. The said view is,
therefore, overruled.
23. Section 26(1) of the Small Cause Courts Act speaks of the
Court of Small Causes. If a Court of Small Causes means one defined
under Section 4 and constituted under Section 5 of the said Act, does it
mean that a Civil Judge invested with the jurisdiction of a Court of Small
Causes under Section 28(1) of the Civil Courts Act shall have no
jurisdiction to exercise powers of a Court of Small Causes under
Section 26(1) of the Small Cause Courts Act. In our view, it cannot be so.
Section 32 of the Small Cause Courts Act confers upon a Civil Judge with
the jurisdiction of a Court of Small Causes available under Section 15 of
the Small Causes Courts Act. In view of deletion of Entries No.4 and 8
from Second Schedule of the said Act, a bar to entertain, try and decide a
suit for possession of the immovable property or for recovery of an
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interest in such property or for recovery of rent, as was contained in
Section 15(1) of the said Act, has been lifted. Therefore, in terms of
Section 15(2) of the said Act, a Civil Judge invested with jurisdiction of the
Court of Small Causes under Section 28(1) of the Civil Courts Act, which is
an enactment for the time being in force, as specified therein, becomes
competent to take cognizance of all such suits of a civil nature, of which
the value does not exceed the pecuniary limit/restriction of jurisdiction
specified under Section 28(1) of the Civil Courts Act and this would
include the suit, as contemplated by Section 26(1) of the Small Cause
Courts Act.
24. Section 28, as it stands, was incorporated in the year 1958 and
at that time, the provision of Section 26 of the Small Cause Courts Act was
not subsisting. It was introduced for the first time in the year 1984 by
Maharashtra Act No.24 of 1984. There is no corresponding amendment in
Section 28 of the Civil Courts Act introduced, after introduction of Section 26
of the Small Cause Courts Act. Hence, it is not possible to construe that
Section 28(1) of the Civil Courts Act empowers the High Court to invest any
Civil Judge with the jurisdiction of a Court of Small Causes for trial of suits,
cognizable by such Court under Section 26(1) of the Small Cause Courts Act,
for recovery of possession of immovable property, irrespective of the value of
the subject matter of such suits. If it is assumed that the High Court has such
power under Section 28 of the Civil Courts Act, then it shall violate the said
provision itself, as the limit of pecuniary jurisdiction contained therein would
become redundant. Hence, in our opinion, the provisions of Section 26(1) of
the Small Cause Courts Act will have to be read down to the extent of
pecuniary limit prescribed under Section 28(1) of the Civil Courts Act, in
relation to the investiture of jurisdiction of a Court of Small Causes upon a
Civil Judge. We, therefore, overrule the view taken in Salimkhan's case
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that a Civil Judge invested with the powers of a Court of Small Causes
under Section 28(1) of the Bombay Civil Courts Act, has jurisdiction to
entertain and try the suits covered by Section 26 of the Small Cause
Courts Act, irrespective of the value of the subject matter of such suits.
25. Shri Chandurkar, the learned counsel appearing for
respondent No.2/landlady, has relied upon the following judgments :
(i) Narayan Sitaram Mulay and others v. Bhagu Bin Ganga Ghanekar
and others – 1907 The Indian Law Reports (Vol.XXXI) (Bombay Series)
314.
(ii) Sankararama Aiyar v. R. Padmanabha – AIR 1916 Madras 891 (2).
(iii) D.D. Vidyarthi v. Ram Pearey Lal – AIR 1935 Allahabad 690.
(iv) Medam Venkata Subbaramiah Setty v. K. Hari Rao – AIR 1957 AP
133.
(v) Devidas Mohanlal Gupta v. Ajesh Suresh Sarvaiyya – 2007(1)
Mh.L.J. 362.
(vi) Smt. Savitribai and another v. Vithal Hari Petakar – AIR 1981
Bombay 430.
(vii) K. Kumaraswami Kumandan and Bros v. Premier Electric Co. - AIR
1959 AP 3.
26. In the judgment of the Full Bench of this Court in Narayan
Sitaram Mulay and others v. Bhagu Bin Ganga Ghanekar and others ,
reported in 1907 The Indian Law Reports (Vol.XXXI) (Bombay Series)
314 , the question involved was whether a Court invested with Small
Cause Court's powers is governed by para 1 or para 2 of
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Section 203 of the Code of Civil Procedure. It was held that a Court
invested with Small Cause Court's powers is governed by para 1 of
Section 203 of the Code of Civil Procedure. The decision is not on the
question where the value of the subject matter of the suits or
proceedings exceeds the pecuniary limit of rupees twelve thousand or
rupees six thousand, as the case may be, specified in Section 28(1) of the
Code of Civil Procedure, whether a Civil Judge invested with the
jurisdiction of the Court of Small Causes by the High Court for the trial of
a suit cognizable by such Court, shall have the jurisdiction to try such a
suit as summary suit in view of Section 22 of the Small Cause Courts Act
or it has to be tried as regular suit in accordance with the Code of Civil
Procedure. The said judgment is of, therefore, no help to respondent
No.2.
27. The judgment of the Madras High Court in Sankararama
Aiyar v. R. Padmanabha , reported in AIR 1916 Madras 891 (2) , decided
the question whether an appeal lay to the District Court of Tinnevelly
from the judgment of the Additional District Munsif of Tinnevelly in
Original Suit No.132 of 1907. The judgment is essentially on the
provision of sub-section (4) of Section 24 of the Code of Civil Procedure,
which lays down that the Court trying any suit transferred or withdrawn
under this Section from a Court of Small Causes shall, for the purposes of
such suit, be deemed to be a Court of Small Causes. It was by deeming
fiction, the Court to which a suit withdrawn from a Court of Small Causes
is transferred, is to be treated as a Court of Small Causes. Such a
deeming provision is absent either in Section 28(1) of the Civil Courts Act
or in the Small Cause Courts Act. Hence, the decision of the Madras High
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Court that the Court invested with the jurisdiction of a Court of Small
Causes under Section 28 of the Madras Civil Courts Act also becomes a
Court of Small Causes when a suit is transferred to it from the Court of
Small Causes, is of no help to respondent No.2.
28. The judgment of the Allahabad High Court in D.D. Vidyarthi v.
Ram Pearey Lal , reported in AIR 1935 Allahabad 690 , is also on the
provision of Section 24(4) of the Code of Civil Procedure and hence the
same is also of no help to respondent No.2, in view of the distinction
drawn above in respect of the decision of the Madras High Court in
Sankararama Aiyar v. R. Padmanabha , reported in AIR 1916 Madras
891 (2) .
29. In the judgment of the Andhra Pradesh High Court in Medam
Venkata Subbaramiah Setty v. K. Hari Rao reported in AIR 1957 AP 133 , it
has been held that where a suit of a small cause nature is filed as original
suit in the District Munsif's Court, as at that time the subordinate Judge
did not have small cause jurisdiction, but subsequently, the subordinate
Judge is invested with small cause jurisdiction over the local limits of the
District Munsif, the District Munsif continues to have jurisdiction to
dispose of the suit as original suit and it should not be transferred to the
subordinate Judge's Court to be decided by it in exercise of its small
cause jurisdiction. It was held that Section 32(2) of the Provincial Small
Cause Courts Act in terms is not comprehensive enough to take in a case
where a suit was instituted in one Court and the jurisdiction of a Court of
Small Causes was conferred on different Court. The decision is rendered
on altogether different point and it is not on the question referred for the
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decision of this Bench.
30. In the judgment of this Court in Devidas Mohanlal Gupta v.
Ajesh Suresh Sarvaiyya , reported in 2007(1) Mh.L.J. 362 , the learned
Single Judge was considering the provisions of Section 28 of the Bombay
Civil Courts Act and Sections 32 and 33 of the Provincial Small Cause
Courts Act with reference to the provisions of Section 33 of the
Maharashtra Rent Control Act, 1999. It has been held that the jurisdiction
of the Court of Civil Judge, Junior Division, invested with the jurisdiction of
small cause under Section 28 of the Civil Courts Act by the High Court
becomes a Court of Small Causes for the purposes of Provincial Act
though it is not established as such under that Act. It was arising out of a
small cause civil suit decided by the Civil Judge, Senior Division,
Amravati, for possession filed under the provisions of Section 16(1)(c)(g)
(k) and (n) of the Maharashtra Rent Control Act, 1999. The question
involved was whether any distinction between the Court of Small Causes
established under the Provincial Act and the Court functioning because of
investing of such power under Section 28 of the Civil Courts Act, is
recognized by the Rent Act. For this purpose, the provisions of Sections
32, 33 and 34 of the Maharashtra Rent Control Act were essentially relied
upon. We here are not concerned with the provisions of the Maharashtra
Rent Control Act, on the basis of which the said decision is rendered.
Hence, the judgment is of no help to respondent No.2.
31. The judgment of this Court in Smt. Savitribai and another v.
Vithal Hari Petakar , reported in AIR 1981 Bombay 430 , has been rendered
on the question of jurisdiction of the Court under Section 28 of the
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Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It was
held that there being no Court of Civil Judge, Junior Division, at Kolhapur,
it is the Court of Civil Judge, Senior Division, which has the jurisdiction to
entertain and try the suit under Section 28 of the Rent Act. The question
raised in the present case was not at all involved and considered in the
said judgment.
32. In the judgment of the Andhra Pradesh High Court in
K. Kumaraswami Kumandan and Bros v. Premier Electric Co. , reported in
AIR 1959 AP 3 , the question involved was the competency of the
Provincial or State Legislatures to amend the Madras Civil Courts Act. It
was held that there was no repugnancy between the material Sections of
the Provincial Small Cause Courts Act and Section 28 of the Civil Courts
Act. There was nothing unconstitutional in the amendment of Section 28
by the Amending Act. The said judgment is also of no help to respondent
No.2.
33. From the provisions pointed out above and the discussion
followed, it is clear that the Small Cause Courts Act deals with the
jurisdiction therein to be exercised either by a Court of Small Causes
established under Section 5 of the said Act or by a Civil Judge invested
with the jurisdiction of a Court of Small Causes by the High Court in
exercise of its powers under Section 28(1) of the Civil Courts Act. If
neither a Court of Small Causes is established at a particular place, nor
has the High Court in exercise of its powers under Section 28(1) of the
Civil Courts Act invested any Civil Judge with the jurisdiction of a Court of
Small Causes for the trial of suits cognizable by such Courts, then
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obviously the ordinary original civil jurisdiction conferred upon the Civil
Judge, Junior Division, or the Civil Judge, Senior Division, is available.
However, in that event, such a suit, which is otherwise cognizable by a
Court of Small Causes, would be tried by such Civil Judge as regular civil
suit in accordance with the provisions of the Code of Civil Procedure,
depending upon the pecuniary limits of its jurisdiction, as provided under
Section 24 of the Civil Courts Act.
34. If a Court of Small Causes is established for a particular place
or places, the ordinary original civil jurisdiction of a civil nature to be
exercised by a Civil Court under the provisions of the Civil Courts Act
stands excluded under Section 16 of the Small Cause Courts Act in
respect of the jurisdiction of a Court of Small Causes for trial of suits and
it is the Court of Small Causes, which shall have exclusive jurisdiction.
This would naturally include the jurisdiction available under Section 26 of
the Small Cause Courts Act and the practice and procedure for trial of
such suits shall be governed by the provisions of Section 17 of the Small
Cause Courts Act. The application of the provision for trial of regular civil
suit contained in the Code of Civil Procedure is excluded to the extent
provided for under the provisions of Section 7 read with the provisions of
Order 50 of the Code of Civil Procedure, which make the procedure for
trial of suits by a Court of Small Causes summary in nature. There is
neither any ambiguity nor confusion or problem in respect of the
jurisdiction to be exercised by a Court of Small Causes constituted under
Section 5 of the said Act.
35. The question is about a Civil Judge exercising jurisdiction of a
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27
Court of Small Causes for trial of such suits cognizable by such Court,
invested in it by the High Court in exercise of its powers under
Section 28(1) of the Civil Courts Act. Section 28(1) authorizes the High
Court to invest any Civil Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve thousand in case of a Civil Judge,
Senior Division, and in case of a Civil Judge, Junior Division, rupees six
thousand. We have already held that a Civil Judge invested with the
jurisdiction of a Court of Small Causes under Section 28(1) of the Civil
Courts Act shall have jurisdiction to entertain, try and decide the civil
suits contemplated by Section 26(1) of the Small Cause Courts Act to the
extent of the pecuniary limits prescribed under Section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause Courts Act states that so much
of Chapters III, VI and IV-A1, as relate to the practice and procedure of
the Courts of Small Causes, shall apply to the Courts invested by or under
any enactment for the time being in force with the jurisdiction of a Court
of Small Causes so far as regards the exercise of that jurisdiction by
those Courts. Similarly, the provisions of Section 7, read with the
provisions of Order 50 of the Code of Civil Procedure, exclude the
application of certain provisions of the Code of Civil Procedure to a Court
invested with the jurisdiction of a Court of Small Causes. In view of this,
the procedure to be followed for deciding such suits by a Civil Judge
would be summary in nature and not as a regular civil suit to be tried in
accordance with the provisions of the Code of Civil Procedure.
36. If the value of the subject matter of the suit covered by
Section 26(1) of the Small Cause Courts Act exceeds the pecuniary limits
specified under Section 28(1) of the Civil Courts Act, then a Civil Judge
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28
invested with the jurisdiction of a Court of Small Causes shall not have
jurisdiction to entertain, try and decide such suit, as a small cause suit of
a summary nature, but it will have to be decided as a regular suit and the
procedure for deciding such suit will be governed by the Code of Civil
Procedure and not by the procedure prescribed under the Small Cause
Courts Act. The reason for this is that the High Court is not competent
under Section 28(1) of the Civil Courts Act to invest any Civil Judge with
the jurisdiction of a Court of Small Causes beyond the pecuniary limits
specified in that Section.
37. In view of the aforesaid discussion, we answer the question of
law, referred for our decision, as under :
A Civil Judge invested with the jurisdiction of a Court of Small
Causes under Section 28(1) of the Bombay Civil Courts Act can function
as a Court of Small Causes to the extent of pecuniary limits prescribed
under Section 28(1) of the Bombay Civil Courts Act and it shall not have
jurisdiction to entertain, try and decide the suits covered by Section 26(1)
of the Provincial Small Cause Courts Act, irrespective of the value of the
subject matter of such suits.
38. The matter be accordingly placed before the learned Single
Judge to decide it in accordance with law.
JUDGE JUDGE
pdl.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.4873 of 2006
Radheshyam s/o Zumbarlal Chandak,
Aged about 60 years,
R/o Prabhat Chowk,
Amravati. … Petitioner
Versus
1. The District Judge, Amravati.
2. Sou. Medha w/o Prashantrao Popalkar,
Aged about 38 years,
R/o Ranpise Nagar,
Akola. … Respondents
Shri J.T. Gilda, Advocate for Petitioner.
Smt. S.S. Wandile, AGP for Respondent No.1.
Shri J.J. Chandurkar, Advocate for Respondent No.2.
Coram : D.K. Deshmukh & R.K. Deshpande, JJ.
Date of Reserving the Judgment : 14-9-2010
Date of Pronouncing the Judgment : 5-10-2010
Judgment (Per R.K. Deshpande, J.) :
1. This writ petition is placed before us to decide the following
question of law, upon reference being made by the learned Single Judge
(Shri B.P. Dharmadhikari, J.) as per his order dated 26-4-2010 :
“Whether the Court invested with small cause powers under
Section 28 of 1869 Act can function as such and exercise
unlimited jurisdiction under Chapter IV A-1 of 1887 Act,
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2
without any ceiling on its pecuniary jurisdiction ?
2. The learned Single Judge of this Court, Shri M.S. Deshpande, J.
(as he then was), in his judgment in Salimkhan s/o Azimkhan v.
Mohammad Ibrahimkhan , reported in 1987 Mh.L.J. 283 , has taken the
view that a Civil Judge, Senior Division, invested with the jurisdiction of
the Court of Small Causes by the High Court under Section 28 of the
Bombay Civil Courts Act, 1869, has jurisdiction to try the suits or
proceedings between a licensor and licensee, or a landlord and tenant
irrespective of the value of the subject-matter of such suits or
proceedings, as contemplated by Section 26 under Chapter IV-A-1 of the
Provincial Small Cause Courts Act, 1887.
3. Disagreeing with the aforesaid view,
Shri B.P. Dharmadhikari, J., has expressed the opinion that Section 28 of
the Bombay Civil Courts Act, 1869 does not confer the power upon the
High Court to invest any Civil Judge with the jurisdiction of a Court of
Small Causes for trial of suit cognizable by such Court, irrespective of the
value of the subject matter of such suit and, therefore, any Civil Judge
invested with the jurisdiction of the Court of Small Causes under Section
28 of the Bombay Civil Courts Act, 1869 cannot exercise jurisdiction to
entertain and try the suit or proceedings between a licensor and licensee,
or a landlord and tenant relating to recovery of possession of any
immovable property, irrespective of the value of the subject-matter of
such suit or proceedings.
4. The factual background leading to reference can be stated for
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the sake of convenience and to appreciate the controversy, as under :
The petitioner is the tenant/defendant in the Small Cause Suit
No.5 of 2006 filed by respondent No.2/landlady on 3-1-2006 for
ejectment, possession, arrears of rent and damages, which was allotted
th
to the Court of 6 Joint Civil Judge, Junior Division, Amravati. The
petitioner/tenant filed his written statement on 13-3-2006 opposing the
claim of respondent No.2/landlady. The petitioner/tenant filed an
application Exhibit 14 on 23-3-2006, in Small Cause Suit No.5 of 2006 for
framing the issues, contending that the Court of Civil Judge, Junior
Division, has no power to try the said suit as small cause suit for the
reason that the valuation of the suit was given in para 10 of the plaint as
Rs.24,300/-, for money claimed of Rs.12,300/-, for arrears of rent as
Rs.9,000/-, and for damages as Rs.300/- per day.
5. The Trial Court passed an order rejecting application
Exhibit 14 on 10-4-2006. It was held that the suit was valued for the
purposes of court fee and jurisdiction at Rs.22,600/- and in view of the
decisions of this Court in Salimkhan s/o Azimkhan v. Mohammad
Ibrahimkhan , reported in 1987 Mh.L.J. 283 ; Urdu Education Society and
another v. Dinshaw Naoraji Printer , reported in 1994 Mh.L.J. 1650 ; and
Kutubunisa Begum v. Bilquees Jahan Begum , reported in 1996(1) Mh.L.J.
184 , there is no bar on the aspect of pecuniary jurisdiction and the Court
is at liberty to try the suit as small cause suit irrespective of its valuation.
The application was, therefore, rejected. This order is subject-matter of
challenge in the present writ petition.
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4
6. Shri Gilda, the learned counsel appearing for the
petitioner/tenant, relying upon the provision of Section 28 of the Bombay
Civil Courts Act, 1869 (for short, hereinafter referred to as “the Civil
Courts Act”), has urged that the said provision does not confer power
upon the High Court to invest any Civil Judge with the jurisdiction of the
Court of Small Causes for the trial of the suits or proceedings cognizable
by such Court irrespective of the value of the subject matter of such suit
or proceedings, as contemplated by Section 26 of the Provincial Small
Cause Courts Act, 1887 (for short, hereinafter referred to as “the Small
Cause Courts Act”). He submits that the power of the High Court under
Section 28 of the Civil Courts Act pertains to the jurisdiction of the Court
of Small Causes, for the trial of the suits other than those specified under
Section 26 of the Small Cause Courts Act, in view of the pecuniary
restrictions for conferment of such power contained in Section 28 of the
Civil Courts Act. Shri Gilda supported the view taken by the learned
Single Judge in his order of reference.
7. Shri Chandurkar, the learned counsel appearing for
respondent No.2/landlady, relying upon the provisions of Sections 4, 5,
15(2), 16, 26, 32 and 33 of the Small Cause Courts Act, urged that the
Civil Judge invested with the jurisdiction of the Court of Small Causes for
the trial of suits cognizable by such Courts, as contemplated by Section
28 of the Civil Courts Act, is competent to exercise the jurisdiction of the
Court of Small Causes under Section 26 of the Small Cause Courts Act,
irrespective of the value of the subject matter of such suits or
proceedings. He supported the view taken by the learned Single judge
in Salimkhan's case, cited supra.
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5
8. In order to consider the question under reference, the
relevant provisions of the Bombay Civil Courts Act, 1869 will have to be
seen first. Section 21 of the said Act deals with the establishment of Civil
Courts subordinate to District Court in each District by the State
Government and the Judges appointed in such subordinate Courts are to
be called as the Civil Judges, as contemplated by Section 22 of the said
Act. Section 22A of the said Act empowers the State Government to fix
and alter the local limits of the ordinary jurisdiction of the Civil Judges by
issuing notification in the official gazette. Section 24 of the said Act
states that the Civil Judges shall be of two classes. The jurisdiction of a
Civil Judge, Senior Division, extends to all original suits and proceedings
of civil nature, whereas the jurisdiction of a Civil Judge, Junior Division,
extends to all original suits and proceedings of a civil nature wherein the
subject matter does not exceed its amount or value of one lakh rupees.
9. Thus, all the suits or proceedings of civil nature wherein the
subject matter does not exceed amount or value of rupees one lakh are
to be tried by the Civil Judge, Junior Division, within the local limits of
ordinary jurisdiction fixed by the State Government under Section 22A of
the said Act. If the value of the subject matter of the suits or proceedings
exceeds rupees one lakh, then the same is required to be tried by the
Civil Judge, Senior Division, within the local limits of jurisdiction fixed by
the State Government under Section 22A of the said Act.
10. The Provincial Small Cause Courts Act, 1887 was brought into
force, subsequent to the Civil Courts Act. Chapter II of the said Act deals
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6
with the constitution of Courts of Small Causes and Section 5 under the
said Chapter deals with the establishment of Courts of Small Causes. It
empowers the State Government to establish the Courts of Small Causes
and sub-section (2) empowers the State Government to define the local
limits of jurisdiction of the Court of Small Causes. Chapter III of the said
Act deals with the jurisdiction of the Courts of Small Causes and
Section 15 under the said Chapter deals with the cognizance of suits by
Courts of Small Causes. The said provision being relevant is reproduced
below :
“ 15. Cognizance of suits by Courts of Small Causes .
(1) A Court of Small Causes shall not take cognizance of the
suits specified in the second schedule as suit 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
two thousand rupees shall be cognizable by a Court of Small
Causes mentioned in the orders.
(3) Subject as aforesaid, the State Government may, by
order in writing, direct that all suits of a civil nature of which
the value does not exceed five thousand rupees shall be
cognizable by a Court of Small Causes mentioned in the
order.”
Sub-section (1) of Section 15 reproduced above prohibits a Court of Small
Causes from taking cognizance of the suits specified in the second
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7
schedule, as a suit excepted from the cognizance of a Court of Small
Causes. The second schedule under the said Act contained entries no.(4)
and (8), which are reproduced below :
“(4) a suit for the possession of immoveable property or for
the recovery of an interest in such property.
(8) a suit for the recovery of rent, other than house rent,
unless the Judge of the Court of Small Causes has been
expressly invested by the State Government with authority to
exercise jurisdiction with respect thereto.”
Thus, a suit for the possession of immovable property or for the recovery
of an interest in such property or a suit for the recovery of rent other than
house rent was excluded from the jurisdiction of a Court of Small Causes
and essentially a Court of Small Causes was invested with the jurisdiction
to try the suits of a civil nature of which the value does not exceed
rupees two thousand, in terms of sub-section (2) of Section 15,
reproduced above. However, this is subject to the exceptions specified in
the Schedule and to the provisions of any enactment for the time being in
force.
11. Section 16 of the said Act deals with the exclusive jurisdiction
of the Court of Small Causes, the same being also relevant, is reproduced
below :
“ 16. Exclusive jurisdiction of Courts of Small Causes .
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
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8
having jurisdiction within the local limits of the jurisdiction of
the Court of Small Causes by which the suit is triable.”
A combined reading of Sections 15 and 16, reproduced above, makes it
clear that the place where a Court of Small Causes is established under
Section 5 of the Act prescribing the local limits of its jurisdiction, the
jurisdiction of any other Court established at the same place stands
excluded in respect of such suits or proceedings, the value of which does
not exceed rupees two thousand. The position thus, was that although
the Court of Civil Judge, Junior Division, is empowered to entertain and try
the suits or proceedings of a civil nature wherein the subject matter does
not exceed its amount or value of rupees one lakh, as contemplated by
Section 24 of the Bombay Civil Courts Act, 1869, its jurisdiction was
excluded at a place where the Court of Small Causes is established by the
State Government, to try and decide the suits of a civil nature, the value
of which does not exceed rupees two thousand.
12. In case of a place where a Court of Small Causes has not been
constituted by the State Government, as prescribed by Section 5 of the
Small Cause Courts Act, Section 28(1) of the Civil Courts Act empowers
the High Court to invest any Civil Judge with jurisdiction of a Court of
Small Causes. The said provision, being relevant, is reproduced below :
“28(1) The High Court may invest any Civil Judge with
the jurisdiction of a Court of Small Causes for the trial of suits
cognizable by such Courts upto such amount as it may deem
proper, not exceeding in the case of a Civil Judge (Senior
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Division) twelve thousand rupees and in the case of a Civil
Judge (Junior Division) six thousand rupees.”
Thus, where the Courts of Small Causes are not constituted, the High
Court is empowered to invest any Civil Judge with the jurisdiction of a
Court of Small Causes for the trial of suits cognizable by such Courts upto
such amount as it deems proper, not exceeding rupees twelve thousand,
in the case of Civil Judge, Senior Division, and in the case of Civil Judge,
Junior Division, rupees six thousand.
13. At this stage, it is required to be seen that under the
provisions of the Civil Courts Act, there is no pecuniary limit for exercise
of ordinary original civil jurisdiction by a Civil Judge, Senior Division, as in
view of Section 24 of the said Act, the jurisdiction of Civil Judge, Senior
Division, extends to all original suits or proceedings of a civil nature and
the jurisdiction of Civil Judge, Junior Division, extends to all suits or
proceedings of a civil nature, wherein the subject matter does not exceed
its amount or value of rupees one lakh. In contrast to this, the provision
of Section 28(1) of the Civil Courts Act specifies the pecuniary limit of
rupees twelve thousand for Civil Judge, Senior Division, and of rupees six
thousand for Civil Judge, Junior Division, to exercise jurisdiction. In view
of this, the ordinary original civil jurisdiction conferred upon Civil Judge,
Senior Division, and Civil Judge, Junior Division, under Section 24 of the
Civil Courts Act cannot be read into the provision of Section 28(1) of the
said Act.
14. Section 32 of the Small Cause Courts Act deals with the
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application of the Act to Courts invested with jurisdiction of Court of Small
Causes, the same being relevant is also reproduced below :
“ 32. Application of Act to Courts invested with
jurisdiction of Court of Small Causes .--(1) So much of
Chapters III, VI and IV-A1 as relates to--
(a) the nature of the suits cognizable by Courts of
Small Causes,
(b) the exclusion of the jurisdiction of other Courts in
those suits,
(c) the practice and procedure of Courts of Small
Causes,
(d) appeal from certain orders of those Courts and
revision of cases decided by them, and
(e) the finality of their decrees and order subject to
such appeal and revision as are provided by this Act,
applies to Courts invested by or under any enactment for the
time being in force with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that jurisdiction by
those Courts.
(2) Nothing in sub-section (1) with respect of Courts
invested with the jurisdiction of a Court of Small Causes
applies to suits instituted or proceedings commenced in those
Courts before the date on which they were invested with that
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jurisdiction.”
It is thus apparent that where the High Court has invested such powers of
a Court of Small Causes upon Civil Judges, as contemplated under Section
28 of the Civil Courts Act, the provisions of Chapters III and IV relating to
items (a) to (e) of sub-section (1) of Section 32, reproduced above, were
made applicable to such Courts. In the absence of vesting of such powers
under Section 28(1) of the Civil Courts Act, the provisions of Chapters III
and IV relating to items (a) to (e) of sub-section (1) of Section 32 would
not be available to Civil Judge, Senior Division, or Civil Judge, Junior
Division, while exercising its ordinary original civil jurisdiction under
Section 24 of the Civil Courts Act.
15. Section 33 of the Small Cause Courts Act deals with the
application of the Act and the Code to Court so invested as to two Courts.
The said provision is reproduced below :
“ 33. Application of Act and Code to Court so invested
as to two Courts .-- A Court invested with the jurisdiction of
a Court of Small Causes, with respect to the exercise of that
jurisdiction, and the same Court, with respect to the exercise
of its jurisdiction in suits of a civil nature which are not
cognizable by a Court of Small Causes, shall, for the purposes
of this Act and the Code of Civil Procedure (14 of 1882) be
deemed to be different Courts.”
The aforesaid provision clearly maintains the distinction between the
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suits of a civil nature to be cognizable by a Court of Small Causes and
those not cognizable by a Court of Small Causes. It contemplates that
though the same Court exercises powers under the Small Cause Courts
Act and under the Code of Civil Procedure, it shall be treated as different
Courts for the said purposes.
16. By Maharashtra Act No.24 of 1984, the jurisdiction of a Court
of Small Causes was enlarged by deleting entries no.(4) and (8) from
second schedule of the Small Cause Courts Act and introducing a
provision of Section 26(1) under Chapter IV-A1 relating to recovery of
possession of certain immovable property and certain licence fees or rent.
The said provision being relevant for the purposes of the present case is
reproduced below :
“ 26. Suits or proceedings between licensors and
licensees or landlords and licensees or landlords and
tenants for recovery of possession of immovable
property and license fees or rent, except those to
which other Acts apply, to lie in Court of Small Causes .
(1) Notwithstanding anything contained elsewhere in this
Act, but subject to the provisions of sub-section (2), the Court
of Small Causes shall have jurisdiction to entertain and try all
suits and proceedings between a licensors and licensee or a
landlord and tenant, relating to the recovery of possession of
any immovable property situated in the area within the local
limits of the jurisdiction of the Court of Small Causes, or
relating to the recovery of the licence fee or charges or rent
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therefor, irrespective of the value of the subject matter of
such suits for proceedings.”
The effect of aforesaid amendment was that a Court of Small Causes
constituted or established under Section 5 of the Small Cause Courts Act,
was conferred with the jurisdiction to entertain and try all suits and
proceedings between a licensor and licensee, or a landlord and tenant,
relating to the recovery of possession of any immovable property situated
in the area within the local limits of the jurisdiction of the Court of Small
Causes, or relating to the recovery of licence fees or charges or rent
therefor, irrespective of the value of the subject matter of such suits or
proceedings.
17. We are not concerned with a case where a Court of Small
Causes has been constituted for the local limits of District Amravati.
Undisputedly, there is no Court of Small Causes established by the State
Government, as contemplated by Section 5 of the Small Cause Courts
Act. We are concerned with a position where the High Court has, in
exercise of its powers under Section 28(1) of the Civil Courts Act,
invested a Civil Judge, Junior Division, Amravati, with the jurisdiction of a
Court of Small Causes for trial of such suits cognizable by a Court of Small
Causes. Undisputedly, the suit in question has been registered as Small
Cause Suit No.5 of 2006 and it is valued for the purposes of court fees
and jurisdiction at Rs.22,600/-, which is in excess of the pecuniary limits
of jurisdiction under Section 28(1) of the Civil Courts Act. The question is,
where the value of subject matter of the suits or proceedings exceeds the
pecuniary limit of rupees twelve thousand or rupees six thousand, as the
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14
case may be, specified under Section 28(1) of the Civil Courts Act,
whether a Civil Judge invested with the jurisdiction of the Court of Small
Causes by the High Court, for the trial of the suits cognizable by such
Courts, shall have the jurisdiction to try such a suit as a summary suit,
that too irrespective of value of the subject matter of such suit, in view of
Section 26 of the Small Cause Courts Act or it has to be tried as a regular
suit in accordance with the provisions of the Code of Civil Procedure.
18. Now turning to the judgment delivered by the learned Single
Judge of this Court in Salimkhan's case, the facts of the case were that
the suit for a decree for ejectment and mesne profits was passed by the
Civil Judge, Senior Division, Achalpur, who was invested with the
jurisdiction of a Court of Small Causes by the High Court in exercise of its
powers under Section 28(1) of the Civil Courts Act to try the suit for the
value upto Rs.1,800/-. The suit was valued for the purposes of jurisdiction
at Rs.2,700/-. It was tried as a regular suit. The tenant preferred an
appeal before the District Court. Before the District Court, it was not
disputed that the Court of Civil Judge, Senior Division, Achalpur, had
summary powers upto Rs.1,800/- only and, therefore, it was decided as a
regular suit. The question before the District Judge was that whether an
appeal lay to the District Court under Section 96 of the Code of Civil
Procedure only on the question of law. The learned District Judge decided
the case both on the question of law as well as on facts. The appeal was
dismissed, against which the tenant had preferred a writ petition before
this Court.
19. The facts in Salimkhan's case clearly show that the suit was
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valued for the purposes of jurisdiction at Rs.2,700/-, whereas the Civil
Judge, Junior Division, who was invested with powers of a Court of Small
Causes, was competent to try the suit for value upto Rs.1,800/-. Hence,
the suit was tried as regular suit. In view of this, the question whether
the Civil Judge invested with powers of Court of Small Causes should try
the suit as summary suit or as regular suit, was neither involved nor
decided. The learned Single Judge proceeds on the assumption that a
Court of Civil Judge, Senior Division, invested with the power to try small
cause suit of the value upto Rs.1,800/- under Section 28 of the Bombay
Civil Courts Act, was also a Court of Small Causes, as defined under
Section 4 of the Small Cause Courts Act, and the combined effect of
Section 4 of the Small Cause Courts Act and Section 28 of the Bombay
Civil Courts Act was that the Civil Judge, Senior Division, Achalpur, had
the jurisdiction of a Court of Small Causes, ordinarily upto a particular
limit. However, it was held that in view of the non obstante clause with
which Section 26 of the Small Cause Courts Act begins, nothing contained
in Sections 15 and 16 of the said Act would prevent the Court of Small
Causes from exercising the jurisdiction to entertain and try the suits of
the description mentioned in Section 26(1). It was thus held that
irrespective of the limit placed on the jurisdiction of the Trial Court to take
cognizance of small cause suits upto a particular value only, its
jurisdiction to entertain the suits under Section 26 of the Provincial Small
Cause Courts Act would be unaffected and it would have the jurisdiction
to entertain and decide such suits. The writ petition was, therefore,
dismissed.
20. The learned Single Judge, in his order of reference
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dated 26-4-2010, has considered the aforesaid view taken in Salimkhan's
case. It has been noted that Salimkhan's case does not consider the
provision of Section 32 of the Small Cause Courts Act, which shows the
distinction made in the Courts established under Section 4 of the Small
Cause Courts Act and other Courts invested with that jurisdiction. A view
has been taken that Section 26 of the Small Cause Courts Act, though
begins with non obstante clause, it speaks of Court of Small Causes and
thus leads one to Section 4 of Small Cause Courts Act. After referring to
various provisions right from Section 4 to Section 33 of the Small Cause
Courts Act, it has been held that if the Court invested with the powers of
Small Causes Court under Section 28 is to be treated as Court equivalent
or equal to Court of Small Causes constituted under Section 4 thereof,
there was no need to have such peculiar provision in the shape of
Sections 32 and 33 in the scheme of Small Cause Courts Act. It has been
held that Section 26 of the Small Cause Courts Act expressly overrides
the provisions contained in the said Act only and it does not and cannot
override the provisions of other enactments, like the Bombay Civil Courts
Act. It has been held that Section 28 of the Bombay Civil Courts Act does
not permit the High Court to confer jurisdiction beyond a particular limit
on Judge of other Court on whom small causes powers are invested. A
view has been taken that Section 26 of the Small Cause Courts Act deals
with the Courts established under Section 4 of the said Act and it cannot
have any effect on the powers of the High Court under Section 28 of the
Bombay Civil Courts Act. It has, therefore, been held that any Civil Judge
invested with the jurisdiction of the Court of Small Causes under
Section 28 of the Bombay Civil Courts Act cannot exercise jurisdiction to
entertain and try the suits or proceedings between the landlord and
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tenant relating to recovery of possession of immovable property,
irrespective of the value of the subject matter of the suits or proceedings.
21. In order to consider the aforesaid conflicting views, Section 4
of the Small Cause Courts Act needs to be seen and the same is,
therefore, reproduced below :
“ 4. Definition .--In this Act, unless there is something
repugnant in the subject or context, “Court of Small Causes”
means a Court of Small Causes constituted under this Act,
and includes any person exercising jurisdiction under this Act
in any such Court.”
This Section deals with the definition of the Court of Small Causes and it
is not a provision dealing with constitution or establishment of a Court of
Small Causes, as has been held in the order of reference by the learned
Single Judge. The definition is in two parts. The first part refers only to a
Court of Small Causes constituted under the said Act, i.e. under Section 5.
A Civil Judge invested with the jurisdiction of a Court of Small Causes by
the High Court in exercise of its powers under Section 28(1) of the Civil
Courts Act, cannot be a Court of Small Causes constituted
under Section 5 of the said Act for the reasons (i) that Section 4 begins
with the words “unless there is something repugnant in the subject or
context”, and Section 28(1) of the Civil Courts Act deals with a Civil Judge
invested with jurisdiction of a Court of Small Causes, which is repugnant
in the subject or context, as contemplated by Section 4; and (ii) that
there is a difference between Section 5 of the Small Cause Courts Act and
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Section 28(1) of the Civil Courts Act. Such difference being that;
(a) Section 5 deals with the powers of the State Government, whereas
Section 28(1) deals with the powers of the High Court; (b) Section 5
deals with establishment of a Court of Small Causes, whereas
Section 28(1) deals with investing of jurisdiction of a Court of Small
Causes with any Civil Judge, (c) Section 5 is place/places specific,
whereas Section 28(1) is not place/places specific, but it is a Judge or
Court specific; and (d) Section 28(1) deals with pecuniary limits of
jurisdiction to be invested by the High Court, whereas Section 5 does not
deal with pecuniary limits of a Court of Small Causes.
22. So far as the second part of the definition is concerned, it is
“inclusive of any person exercising jurisdiction under the said Act in any
such Court.” In our view, the expression “any person” used therein
speaks only of persons appointed as Presiding Officers, including the
Additional Judges under Section 8 and the Registrar under Section 12 of
the Small Cause Courts Act, to discharge the functions as a Judge. The
expression “any such Court” referred therein again pertains only to “a
Court of Small Causes” established under Section 5 of the said Act and
not to “a Civil Judge” invested with the jurisdiction of a Court of Small
Causes by the High Court under Section 28(1) of the Civil Courts Act. The
reasons for taking such views are that (i) a Civil Judge invested with the
powers of a Court of Small Causes does not occupy the position as a
Presiding Officer of a Court of Small Causes established under Section 5
of the Small Cause Courts Act, and (ii) there is no deeming provision
either under the Small Cause Courts Act or under the Civil Courts Act to
treat a Civil Judge invested with the powers of Court of Small Causes
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under Section 28(1) of the Civil Courts Act as a Court of Small Causes
established under Section 5 of the Small Cause Courts Act, and (iii) the
scheme of the Act, as has been rightly pointed out on the basis of the
provisions of Sections 4 to 33 of the Small Cause Courts Act, in the order
of reference by the learned Single Judge, clearly makes out a distinction
between “any person” exercising jurisdiction under the Act and “a Civil
Judge” invested with the jurisdiction of a Court of Small Causes under
Section 28(1) of the Civil Courts Act. In our view, therefore, the judgment
delivered by the learned Single judge of this Court in Salimkhan's case
cannot be held to proceed on the correct proposition of law that a Civil
judge invested with the jurisdiction of a Court of Small Causes under
Section 28(1) of the Civil Courts Act, was also a Court of Small Causes, as
defined under Section 4 of the Small Cause Courts Act. The said view is,
therefore, overruled.
23. Section 26(1) of the Small Cause Courts Act speaks of the
Court of Small Causes. If a Court of Small Causes means one defined
under Section 4 and constituted under Section 5 of the said Act, does it
mean that a Civil Judge invested with the jurisdiction of a Court of Small
Causes under Section 28(1) of the Civil Courts Act shall have no
jurisdiction to exercise powers of a Court of Small Causes under
Section 26(1) of the Small Cause Courts Act. In our view, it cannot be so.
Section 32 of the Small Cause Courts Act confers upon a Civil Judge with
the jurisdiction of a Court of Small Causes available under Section 15 of
the Small Causes Courts Act. In view of deletion of Entries No.4 and 8
from Second Schedule of the said Act, a bar to entertain, try and decide a
suit for possession of the immovable property or for recovery of an
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interest in such property or for recovery of rent, as was contained in
Section 15(1) of the said Act, has been lifted. Therefore, in terms of
Section 15(2) of the said Act, a Civil Judge invested with jurisdiction of the
Court of Small Causes under Section 28(1) of the Civil Courts Act, which is
an enactment for the time being in force, as specified therein, becomes
competent to take cognizance of all such suits of a civil nature, of which
the value does not exceed the pecuniary limit/restriction of jurisdiction
specified under Section 28(1) of the Civil Courts Act and this would
include the suit, as contemplated by Section 26(1) of the Small Cause
Courts Act.
24. Section 28, as it stands, was incorporated in the year 1958 and
at that time, the provision of Section 26 of the Small Cause Courts Act was
not subsisting. It was introduced for the first time in the year 1984 by
Maharashtra Act No.24 of 1984. There is no corresponding amendment in
Section 28 of the Civil Courts Act introduced, after introduction of Section 26
of the Small Cause Courts Act. Hence, it is not possible to construe that
Section 28(1) of the Civil Courts Act empowers the High Court to invest any
Civil Judge with the jurisdiction of a Court of Small Causes for trial of suits,
cognizable by such Court under Section 26(1) of the Small Cause Courts Act,
for recovery of possession of immovable property, irrespective of the value of
the subject matter of such suits. If it is assumed that the High Court has such
power under Section 28 of the Civil Courts Act, then it shall violate the said
provision itself, as the limit of pecuniary jurisdiction contained therein would
become redundant. Hence, in our opinion, the provisions of Section 26(1) of
the Small Cause Courts Act will have to be read down to the extent of
pecuniary limit prescribed under Section 28(1) of the Civil Courts Act, in
relation to the investiture of jurisdiction of a Court of Small Causes upon a
Civil Judge. We, therefore, overrule the view taken in Salimkhan's case
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that a Civil Judge invested with the powers of a Court of Small Causes
under Section 28(1) of the Bombay Civil Courts Act, has jurisdiction to
entertain and try the suits covered by Section 26 of the Small Cause
Courts Act, irrespective of the value of the subject matter of such suits.
25. Shri Chandurkar, the learned counsel appearing for
respondent No.2/landlady, has relied upon the following judgments :
(i) Narayan Sitaram Mulay and others v. Bhagu Bin Ganga Ghanekar
and others – 1907 The Indian Law Reports (Vol.XXXI) (Bombay Series)
314.
(ii) Sankararama Aiyar v. R. Padmanabha – AIR 1916 Madras 891 (2).
(iii) D.D. Vidyarthi v. Ram Pearey Lal – AIR 1935 Allahabad 690.
(iv) Medam Venkata Subbaramiah Setty v. K. Hari Rao – AIR 1957 AP
133.
(v) Devidas Mohanlal Gupta v. Ajesh Suresh Sarvaiyya – 2007(1)
Mh.L.J. 362.
(vi) Smt. Savitribai and another v. Vithal Hari Petakar – AIR 1981
Bombay 430.
(vii) K. Kumaraswami Kumandan and Bros v. Premier Electric Co. - AIR
1959 AP 3.
26. In the judgment of the Full Bench of this Court in Narayan
Sitaram Mulay and others v. Bhagu Bin Ganga Ghanekar and others ,
reported in 1907 The Indian Law Reports (Vol.XXXI) (Bombay Series)
314 , the question involved was whether a Court invested with Small
Cause Court's powers is governed by para 1 or para 2 of
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Section 203 of the Code of Civil Procedure. It was held that a Court
invested with Small Cause Court's powers is governed by para 1 of
Section 203 of the Code of Civil Procedure. The decision is not on the
question where the value of the subject matter of the suits or
proceedings exceeds the pecuniary limit of rupees twelve thousand or
rupees six thousand, as the case may be, specified in Section 28(1) of the
Code of Civil Procedure, whether a Civil Judge invested with the
jurisdiction of the Court of Small Causes by the High Court for the trial of
a suit cognizable by such Court, shall have the jurisdiction to try such a
suit as summary suit in view of Section 22 of the Small Cause Courts Act
or it has to be tried as regular suit in accordance with the Code of Civil
Procedure. The said judgment is of, therefore, no help to respondent
No.2.
27. The judgment of the Madras High Court in Sankararama
Aiyar v. R. Padmanabha , reported in AIR 1916 Madras 891 (2) , decided
the question whether an appeal lay to the District Court of Tinnevelly
from the judgment of the Additional District Munsif of Tinnevelly in
Original Suit No.132 of 1907. The judgment is essentially on the
provision of sub-section (4) of Section 24 of the Code of Civil Procedure,
which lays down that the Court trying any suit transferred or withdrawn
under this Section from a Court of Small Causes shall, for the purposes of
such suit, be deemed to be a Court of Small Causes. It was by deeming
fiction, the Court to which a suit withdrawn from a Court of Small Causes
is transferred, is to be treated as a Court of Small Causes. Such a
deeming provision is absent either in Section 28(1) of the Civil Courts Act
or in the Small Cause Courts Act. Hence, the decision of the Madras High
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Court that the Court invested with the jurisdiction of a Court of Small
Causes under Section 28 of the Madras Civil Courts Act also becomes a
Court of Small Causes when a suit is transferred to it from the Court of
Small Causes, is of no help to respondent No.2.
28. The judgment of the Allahabad High Court in D.D. Vidyarthi v.
Ram Pearey Lal , reported in AIR 1935 Allahabad 690 , is also on the
provision of Section 24(4) of the Code of Civil Procedure and hence the
same is also of no help to respondent No.2, in view of the distinction
drawn above in respect of the decision of the Madras High Court in
Sankararama Aiyar v. R. Padmanabha , reported in AIR 1916 Madras
891 (2) .
29. In the judgment of the Andhra Pradesh High Court in Medam
Venkata Subbaramiah Setty v. K. Hari Rao reported in AIR 1957 AP 133 , it
has been held that where a suit of a small cause nature is filed as original
suit in the District Munsif's Court, as at that time the subordinate Judge
did not have small cause jurisdiction, but subsequently, the subordinate
Judge is invested with small cause jurisdiction over the local limits of the
District Munsif, the District Munsif continues to have jurisdiction to
dispose of the suit as original suit and it should not be transferred to the
subordinate Judge's Court to be decided by it in exercise of its small
cause jurisdiction. It was held that Section 32(2) of the Provincial Small
Cause Courts Act in terms is not comprehensive enough to take in a case
where a suit was instituted in one Court and the jurisdiction of a Court of
Small Causes was conferred on different Court. The decision is rendered
on altogether different point and it is not on the question referred for the
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decision of this Bench.
30. In the judgment of this Court in Devidas Mohanlal Gupta v.
Ajesh Suresh Sarvaiyya , reported in 2007(1) Mh.L.J. 362 , the learned
Single Judge was considering the provisions of Section 28 of the Bombay
Civil Courts Act and Sections 32 and 33 of the Provincial Small Cause
Courts Act with reference to the provisions of Section 33 of the
Maharashtra Rent Control Act, 1999. It has been held that the jurisdiction
of the Court of Civil Judge, Junior Division, invested with the jurisdiction of
small cause under Section 28 of the Civil Courts Act by the High Court
becomes a Court of Small Causes for the purposes of Provincial Act
though it is not established as such under that Act. It was arising out of a
small cause civil suit decided by the Civil Judge, Senior Division,
Amravati, for possession filed under the provisions of Section 16(1)(c)(g)
(k) and (n) of the Maharashtra Rent Control Act, 1999. The question
involved was whether any distinction between the Court of Small Causes
established under the Provincial Act and the Court functioning because of
investing of such power under Section 28 of the Civil Courts Act, is
recognized by the Rent Act. For this purpose, the provisions of Sections
32, 33 and 34 of the Maharashtra Rent Control Act were essentially relied
upon. We here are not concerned with the provisions of the Maharashtra
Rent Control Act, on the basis of which the said decision is rendered.
Hence, the judgment is of no help to respondent No.2.
31. The judgment of this Court in Smt. Savitribai and another v.
Vithal Hari Petakar , reported in AIR 1981 Bombay 430 , has been rendered
on the question of jurisdiction of the Court under Section 28 of the
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Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It was
held that there being no Court of Civil Judge, Junior Division, at Kolhapur,
it is the Court of Civil Judge, Senior Division, which has the jurisdiction to
entertain and try the suit under Section 28 of the Rent Act. The question
raised in the present case was not at all involved and considered in the
said judgment.
32. In the judgment of the Andhra Pradesh High Court in
K. Kumaraswami Kumandan and Bros v. Premier Electric Co. , reported in
AIR 1959 AP 3 , the question involved was the competency of the
Provincial or State Legislatures to amend the Madras Civil Courts Act. It
was held that there was no repugnancy between the material Sections of
the Provincial Small Cause Courts Act and Section 28 of the Civil Courts
Act. There was nothing unconstitutional in the amendment of Section 28
by the Amending Act. The said judgment is also of no help to respondent
No.2.
33. From the provisions pointed out above and the discussion
followed, it is clear that the Small Cause Courts Act deals with the
jurisdiction therein to be exercised either by a Court of Small Causes
established under Section 5 of the said Act or by a Civil Judge invested
with the jurisdiction of a Court of Small Causes by the High Court in
exercise of its powers under Section 28(1) of the Civil Courts Act. If
neither a Court of Small Causes is established at a particular place, nor
has the High Court in exercise of its powers under Section 28(1) of the
Civil Courts Act invested any Civil Judge with the jurisdiction of a Court of
Small Causes for the trial of suits cognizable by such Courts, then
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obviously the ordinary original civil jurisdiction conferred upon the Civil
Judge, Junior Division, or the Civil Judge, Senior Division, is available.
However, in that event, such a suit, which is otherwise cognizable by a
Court of Small Causes, would be tried by such Civil Judge as regular civil
suit in accordance with the provisions of the Code of Civil Procedure,
depending upon the pecuniary limits of its jurisdiction, as provided under
Section 24 of the Civil Courts Act.
34. If a Court of Small Causes is established for a particular place
or places, the ordinary original civil jurisdiction of a civil nature to be
exercised by a Civil Court under the provisions of the Civil Courts Act
stands excluded under Section 16 of the Small Cause Courts Act in
respect of the jurisdiction of a Court of Small Causes for trial of suits and
it is the Court of Small Causes, which shall have exclusive jurisdiction.
This would naturally include the jurisdiction available under Section 26 of
the Small Cause Courts Act and the practice and procedure for trial of
such suits shall be governed by the provisions of Section 17 of the Small
Cause Courts Act. The application of the provision for trial of regular civil
suit contained in the Code of Civil Procedure is excluded to the extent
provided for under the provisions of Section 7 read with the provisions of
Order 50 of the Code of Civil Procedure, which make the procedure for
trial of suits by a Court of Small Causes summary in nature. There is
neither any ambiguity nor confusion or problem in respect of the
jurisdiction to be exercised by a Court of Small Causes constituted under
Section 5 of the said Act.
35. The question is about a Civil Judge exercising jurisdiction of a
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Court of Small Causes for trial of such suits cognizable by such Court,
invested in it by the High Court in exercise of its powers under
Section 28(1) of the Civil Courts Act. Section 28(1) authorizes the High
Court to invest any Civil Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve thousand in case of a Civil Judge,
Senior Division, and in case of a Civil Judge, Junior Division, rupees six
thousand. We have already held that a Civil Judge invested with the
jurisdiction of a Court of Small Causes under Section 28(1) of the Civil
Courts Act shall have jurisdiction to entertain, try and decide the civil
suits contemplated by Section 26(1) of the Small Cause Courts Act to the
extent of the pecuniary limits prescribed under Section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause Courts Act states that so much
of Chapters III, VI and IV-A1, as relate to the practice and procedure of
the Courts of Small Causes, shall apply to the Courts invested by or under
any enactment for the time being in force with the jurisdiction of a Court
of Small Causes so far as regards the exercise of that jurisdiction by
those Courts. Similarly, the provisions of Section 7, read with the
provisions of Order 50 of the Code of Civil Procedure, exclude the
application of certain provisions of the Code of Civil Procedure to a Court
invested with the jurisdiction of a Court of Small Causes. In view of this,
the procedure to be followed for deciding such suits by a Civil Judge
would be summary in nature and not as a regular civil suit to be tried in
accordance with the provisions of the Code of Civil Procedure.
36. If the value of the subject matter of the suit covered by
Section 26(1) of the Small Cause Courts Act exceeds the pecuniary limits
specified under Section 28(1) of the Civil Courts Act, then a Civil Judge
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invested with the jurisdiction of a Court of Small Causes shall not have
jurisdiction to entertain, try and decide such suit, as a small cause suit of
a summary nature, but it will have to be decided as a regular suit and the
procedure for deciding such suit will be governed by the Code of Civil
Procedure and not by the procedure prescribed under the Small Cause
Courts Act. The reason for this is that the High Court is not competent
under Section 28(1) of the Civil Courts Act to invest any Civil Judge with
the jurisdiction of a Court of Small Causes beyond the pecuniary limits
specified in that Section.
37. In view of the aforesaid discussion, we answer the question of
law, referred for our decision, as under :
A Civil Judge invested with the jurisdiction of a Court of Small
Causes under Section 28(1) of the Bombay Civil Courts Act can function
as a Court of Small Causes to the extent of pecuniary limits prescribed
under Section 28(1) of the Bombay Civil Courts Act and it shall not have
jurisdiction to entertain, try and decide the suits covered by Section 26(1)
of the Provincial Small Cause Courts Act, irrespective of the value of the
subject matter of such suits.
38. The matter be accordingly placed before the learned Single
Judge to decide it in accordance with law.
JUDGE JUDGE
pdl.
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