Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.90519052 OF 2018
(arising out of SLP (C) Nos. 42754276 of 2017)
OM PRAKASH AGARWAL SINCE DECEASED
THR. LRS. & ORS. ... APPELLANT(S)
VERSUS
VISHAN DAYAL RAJPOOT & ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These appeals have been filed by the
appellant(landlord), questioning the judgment of
Allahabad High Court in Small Causes Court Revision
filed by the respondents(tenant) challenging the decree
of eviction passed by Additional District Judge,
Firozabad. The issue which has arisen in these appeals
pertains to the jurisdiction of Court of Additional
Signature Not Verified
District Judge in deciding Small Causes Suit on
Digitally signed by
DEEPAK SINGH
Date: 2019.02.14
17:04:26 IST
Reason:
22.10.2016.
2
2. The facts necessary to be noticed for deciding these
appeals are:
The appellant, the landlord of premises in question
filed Small Causes Suit No. 1 of 2008 in the Court
of Civil Judge (Senior Division), Small Cause
Court, Firozabad praying for decree of eviction,
rent and damages. By order dated 05.04.2010 passed
by District Judge, the suit was transferred to the
Court of Additional District Judge, Firozabad and
was registered as S.C.C. Suit No. 1 of 2010. The
pecuniary jurisdiction of a Judge, Small Cause
Court, which at the time of filing of the suit was
Rs.25,000/ was raised from Rs.25,000/ to Rs. 1
lakh w.e.f. 07.12.2005 vide Uttar Pradesh Civil
Laws (Amendment) Act, 2015. The Additional
District Judge to whom the suit was transferred
earlier on the ground that pecuniary jurisdiction
of the suit is more than Rs.25,000/ i.e.
Rs.27,775/, proceeded to decide the suit vide its
judgment and order dated 22.10.2016 and the suit
for eviction, rent and compensation was decreed.
3
Aggrieved against the judgment of Addl. District
Judge, revision under Section 25 of the Provincial
Small Cause Courts Act, 1887 was filed by the
tenant (respondents to this appeal). One of the
grounds taken in the revision was that after
enactment of Uttar Pradesh Civil Laws (Amendment)
Act, 2015, the Court of Additional District Judge
ceased to have any jurisdiction to try the suit
between lessor and lessee of a value upto Rs. 1
lakh. The assumption subsequent thereto of the
jurisdiction by the Additional District Judge is
without jurisdiction.
Some other grounds were also taken for
challenging the judgment dated 22.10.2016. The High
Court vide its impugned judgment dated 07.12.2016
allowed the Small Cause Court revision taking a
view that order passed by Additional District Judge
was without jurisdiction in view of Uttar Pradesh
Civil Laws (Amendment) Act, 2015 w.e.f. 07.12.2015,
after which date, such case of valuation of
Rs.27,775/ could have been decided by Civil Judge
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(Senior Division) working as Judge Small Causes
Court. The High Court relied on the earlier
judgment of High Court in
SCC Revision No. 278 of
2016 – Shobhit Nigam Vs. Smt. Batulan and another
decided on 29.08.2016. The High Court remanded back
the Revision for a fresh decision by Small Causes
Court presided over by a Civil Judge (Senior
Division). The landlord aggrieved by said judgment
has come up in this appeal.
3. Shri A.K. Singla, learned senior counsel appearing
for the appellant contended that High Court committed an
error in allowing the Revision. It is submitted that
Uttar Pradesh Civil Laws (Amendment) Act, 2015 w.e.f.
07.12.2015 has only enhanced the jurisdiction for
institution of small causes suit, which amendment shall
have no effect on the pending cases. In the Uttar
Pradesh Civil Laws (Amendment) Act, 2015, there was no
stipulation that pending cases of having valuation of
more than Rs.25,000/ before the Court of District Judge
should be transferred. He submits that no objection to
the pecuniary jurisdiction of Additional District Judge
5
was taken by the respondents before the Additional
District Judge, hence by virtue of Section 21 of the
Civil Procedure Code, they were estopped from taking any
such objection in the Revision.
4. Shri S.U. Khan, learned counsel appearing for the
respondents refuting the submission of the appellant
contends that the Uttar Pradesh Civil Laws (Amendment)
Act, 2015 w.e.f. 07.12.2015, uses the word “cognizance”.
If a suit is cognizable by a Court then the Court has
got the jurisdiction not only to receive the plaint but
also to decide the suit. After the amendment by Uttar
Pradesh Civil Laws (Amendment) Act, 2015, the Court of
Additional District Judge was not only debarred from
receiving plaints but was also not competent to decide
Small Causes Suit, which has valuation upto Rs. 1 lakh.
To the view taken by the High Court in Shobhit Nigam ’s
case (supra) , there is a contrary view taken by the High
Court in Pankaj Hotel Vs. Bal Mukund, (2018) 1 ALJ 2017.
The principles and objections of pecuniary jurisdiction
as contemplated in Section 21(2) is not attracted in the
present case. In Shobhit Nigam ’s case (supra) High
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Court had issued a general direction for transferring of
Regular Judge Small Causes Court Suits upto valuation of
Rs. 1 lakh to the Civil Judge (Senior Division). He
submits that special leave petition deserves to be
dismissed.
5. From the above submissions of learned counsel for
the parties and the pleadings on record, following are
the issues, which arise for consideration in this
appeal:
(i) Whether the Uttar Pradesh Civil Laws
(Amendment) Act, 2015 is only prospective in
nature and confined only to the fresh
institution of suits in the Court of Civil
Judge (Senior Division) w.e.f. 07.12.2015 upto
valuation of Rs. 1 lakh and shall not affect
the cognizance/hearing of pending suits upto
the valuation of Rs. 1 lakh pending in the
Court of District Judge/Additional District
Judge?
(ii) Whether the Court of District Judge/Additional
District Judge, which Court was vested with the
jurisdiction of Small Causes suit of the
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valuation of more than Rs.25,000/ w.e.f.
08.02.1991 shall cease to have or could have
still exercised the pecuniary jurisdiction on
the Small Causes Suits of Valuation upto Rs. 1
lakh?
(iii) Whether respondents (tenants) having not raised
any objection regarding jurisdiction of the
Court of Additional District Judge where the
suit was pending after amendments made by Uttar
Pradesh Civil Laws (Amendment) Act, 2015, the
respondent (tenant) is precluded to question
the competence of the Court of Additional
District Judge to decide the suit vide his
judgment dated 22.10.2016 in view of Section 21
of Code of Civil Procedure, 1908 in revision
filed under Section 25 of the Provincial Small
Causes Court Act?
6. Before we proceed to consider the issues, which has
arisen for consideration in this appeal, it is useful to
refer the relevant statutory provisions relevant for the
subject.
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7. Two enactments namely (i) The Bengal, Agra, Assam
Civil Courts Act, 1887 and (ii) The Provincial Small
Causes Courts Act, 1887, were passed with regard to
constitution, jurisdiction of Civil Courts in the then
NorthWestern Provinces both being enforced w.e.f.
01.07.1887. The Bengal, Agra and Assam Civil Courts
Act, 1887 was enacted to consolidate and amend the law
relating to Civil Courts in Bengal, the NorthWestern
Provinces and Assam. Section 3 of the Act provides for
Constitution of Civil Courts. Section 4 relates to
number of District Judges, Subordinate Judges and
Munsifs. Section 17 dealt with continuance of
proceeding of Courts ceasing to have jurisdiction.
Section 18 dealt with extent of original jurisdiction of
District or Subordinate Judge (for the State of Uttar
Pradesh, the word “Subordinate” was substituted with the
word “Civil”). Section 19 dealt with extent of
jurisdiction of Munsif. Section 19 as applicable in the
State of Uttar Pradesh was substituted by U.P. Act No.
17 of 1991 was to the following effect:
“19(1) Save as aforesaid, and subject to the
provisions of subsection(2), the jurisdiction
9
of a Munsif extends to all like suits of which
the value does not exceed ten thousand rupees.
(2) The High Court may direct by notification
in the official Gazette, with respect to any
munsif named therein, that his jurisdiction
shall exceed to all like suits of such value
not exceeding twenty five thousand rupees as
may be specified in the notification.”
8. Section 25 deals with power to invest Subordinate
Judges and Munsifs with Small Cause Court Jurisdiction.
Section 25 of the Act as applicable in the State of
Uttar Pradesh is as follows:
“[25.[1] The High Court may by notification
in the official Gazette, confer within such
local limits as it thinks fit, upon any Civil
Judge or Munsif, the jurisdiction of a Judge
of a Court of Small Causes under the
Provincial Small Cause Courts Act, 1887 for
the trial of suits cognizable by such Courts
up to such value not exceeding five thousand
rupees as it thinks fit, and may withdraw any
jurisdiction so conferred:
Provided that in relation to suits
of the nature referred to in the
proviso to subsection (2) of
Section 15 of the said Act, the
reference in this subsection to
five thousand rupees shall be
construed as reference to twenty
five thousand rupees.]
[(2) The High Court may, by notification in
the Official Gazette, confer upon any
District Judge or Additional District Judge
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the jurisdiction of a Judge of a Court of
Small Causes under the Provincial Small Cause
Courts Act, 1887, for the trial of all
suits(irrespective of their value), by the
lessor for the eviction of a lessee from a
building after the determination of his
lease, or for the recovery from him of rent
in respect of the period of occupation
thereof during the continuance of the lease
or of compensation for the use and occupation
thereof during the continuance of the lease
or of compensation for the use and occupation
thereof after such determination of lease,
and may withdraw any jurisdiction so
conferred.
Explanation – For the purposes of this sub
section, the expression ‘building’ has the
same meaning as in Article (4) in the Second
Schedule of the said Act.]
[(3)]x x x ]
[(4) Where the jurisdiction of a Judge of a
Court of Small Causes is conferred upon any
District Judge of Additional District Judge
by notification under section, then,
notwithstanding anything contained in section
15 of the Provincial Small Cause Courts Act,
1887, all suits referred to in subsection
(2) shall be cognizable by Court of Small
Causes.]”
9. The Provincial Small Cause Courts Act, 1887 was
enacted to consolidate and amend the law relating to
courts of small causes established beyond the Presidency
town. AS the name suggests, the Provincial Small Cause
11
Courts Act 1887 was enacted to deal with “Small Causes”.
The Object of the Act was to create a separate court for
dealing with small causes. The object obviously was that
small causes may be dealt with expeditiously. A summary
procedure was also envisaged for dealing with small
causes. The Presidency Small Cause Courts Act, 1882 was
already in place in Calcutta, Bombay and Madras. In
this country, before the Provincial Small Cause Courts
Act 1887 was enacted, there were different legislations
applicable in different areas with the same object,
i.e., to deal with cases of small causes effectively and
summarily. The Statement of Objects and Reasons of
Provincial Small Cause Courts Act 1887 was to the
following effect:
“The suits cognizable in Courts of Small
Causes are subject to certain provisos,
described in Section 6, Act XI of 1865, as
“claims for money due on bond or other
contract, or for rent, or for personal
property, or for the value of such property,
or for damages, when the debt, damage or
demand does not exceed in amount or value the
sum of five hundred rupees whether on balance
of account or otherwise" and Sec. 586 of the
Code of Civil Procedure provides that "no
second appeal shall lie in any suit of the
nature cognizable in Courts of Small Causes,
when the amount or value of the subjectmatter
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of the original suit does not exceed five
hundred rupees". Since Section 6 of the Act of
1865 was enacted, a vast quantity of caselaw
has grown up around it, and, as the rulings of
the Courts have not been uniform, doubts
constantly arise on the question whether a
suit is or is not a suit of the nature
cognizable by a Court of Small Causes, and,
consequently, whether or not, where the suit
is of value not exceeding five hundred rupees
and the original decree made in it was not
final but was open to appeal, an appeal will
also lie from the appellate decree in the
suit. It appears to the Government of India
that the conflicting constructions placed on
Section 6, of which some are due to the
progress of legislation during the last twenty
years (ILR 3 All 66), render a more accurate
definition necessary of the suits of which
Courts of Small Causes may take cognizance,
and that legislation to this end should follow
Sections 18 and 19 of the Presidency Small
Cause Courts Act, 1882, in declaring the
jurisdiction of those Courts to extend to all
suits of a civil nature, subject to specified
exceptions. This Bill has accordingly been
prepared, its primary object being to remove
the doubts now felt as to the effect of
Section 6, Act XI of 1865; and, as several
sections and parts of sections of that Act
have, from time to time, been repealed and
other sections are obsolete as regards both
expression and utility, it has been considered
desirable to repeal the Act and reenact the
substance of the extant portions of it………." —
Gazette of India, 1886, Part V, page 8.”
10. Black's Law Dictionary has referred to “Small
Claims Court”, which explained it in following manner:
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"A court that informally and expeditiously
adjudicates claims that seek damages below a
specified monetary amount, usu. claims to
collect small accounts or debts. Also
termed smalldebts court; conciliation
court.”
11. The object as is delineated from Statements of
Objects of enactment was to provide for speedy machinery
for small claims. Although, Code of Civil Procedure is
applicable by virtue of Section 17 of Small Causes
Courts Act, but the Code of Civil Procedure itself in
Order L provides a simplified procedure excluding
various rules and orders of the C.P.C. for small causes
cases. Order L of the C.P.C. is as follows:
“1. Provincial Small Cause Courts The
provisions hereinafter specified shall not
extend to Courts constituted under the
Provincial Small Cause Courts Act, 1887 (9 of
1887)[or under the Berar Small Cause Courts
Law, 1905] or to Courts exercising the
jurisdiction of a Court of Small Causes
[under the said Act or Law],
[or to Courts in
[any part of India to which the said Act does
not extend] exercising a corresponding
jurisdiction] that is to say
(a) so much of this Schedule as relates to
(i) suits excepted from the cognizance
of a Court of Small Causes or the
execution of decrees in such suits;
(ii) the execution of decrees against
immovable property or the interest
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of a partner in partnership
property;
(iii) the settlement of issues; and
(b) the following rules and orders:
Order II, rule 1 (frame of suit);
Order X, rule 3 (record of examination
of parties);
Order XV, except so much of rule 4 as
provides for the pronouncement at once
of judgement;
Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2, 3, 5, 6, 7
(review);
Order LI.”
12. Section 5 provided for establishment of small
causes courts by the State Government. Chapter III of
the Act deals with “Jurisdiction of Courts of Small
Causes”. Section 15 of the Act provides:
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 suits expected from
the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in
that Schedule and to the provisions of any
enactment for the time being in force, all
suits of a civil nature of which the value
does not exceed five hundred rupees shall be
cognizable by a Court of Small Causes.
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(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 one thousand
rupees shall be cognizable by a Court of
Small Causes mentioned in the order."
13. The Uttar Pradesh Civil Laws (Amendment) Act, 1972
(U.P. Act No. 37 of 1972) was enacted by Uttar Pradesh
Legislature with the Presidential assent. The Statement
of Objects and Reasons of U.P. Act No. 37 of 1972, which
are relevant for understanding the Scheme and purpose of
the amendment are to the following effect:
“ Prefatory Note—Statement of Objects and
Reasons .(1) The Provincial Small Cause
Courts Act, 1887, provides for a summary
procedure in the trial of suits. Moreover, the
decisions of such courts are not appealable,
and only one revision is provided. However
such courts cannot take cognizance of suits
for possession of immovable property. By a
recent amendment contained in Section 20(6) of
the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (U. P.
Act XIII of 1972), eviction suits against the
tenant after the expiration of his tenancy
have been taken out from the purview of this
exception and have been made cognizable by the
small cause courts. This has been done because
in such suits the issues are usually simple.
In cases where the question of title comes to
be in issue, a small cause court has power to
return the plaint for presentation to a
regular court. It is now proposed to delete
the aforesaid amendment from U. P. Act XIII OF
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1972, and instead, to incorporate a wider
amendment directly in the Provincial Small
Causes Court Act, 1887, so that all buildings,
and not merely those buildings which are
governed by U. P. Act XIII of 1972, may be
covered thereby. It is further proposed that
in respect of such suits the ordinary small
cause courts may be conferred jurisdiction to
decide cases of a value up to Rs. 5,000
(instead of only Rs. 2,000 in some districts
and Rs.1,000 in most districts, as at present)
and that cases of a higher value may be
decided by District Judges sitting as Judges
of Small Causes, and revisions against such
decisions of District Judge shall lie to the
High Court, while revision against decisions
of other Courts of Small Causes may continue
to lie to the District Judge.
xxxxxxxxxxxxxxxxxxxxxxxxxxxx”
14. As per Section 15(1), a Court of Small Causes was
not competent to take cognizance of the suits specified
in the Second Schedule. Clause (4) of the Second
Schedule of the Act was to the following effect:
“(4) a suit for the possession of immoveable
property or for the recovery of an interest in
such property;”
15. By Act No. 37 of 1972 amendments were made in
Section 15, Section 25 and Second Schedule of the Act.
17
Sections 2, 3 and 4 of the U.P. Act No. 37 of 1972
provides as follows:-
“2. Amendment of Section 15 of Act IX of
1887.-- In Section 15 of the Provincial Small
Cause Courts Act, 1887, as amended in its
application to Uttar Pradesh, hereinafter
referred to as the principal Act, in sub-
section (3), the following proviso shall be
inserted, namely:
"Provided that in relation to suits
by the lessor for the eviction of a
lessee from a building after the
determination of his lease, or for
recovery from him of rent in respect
of the period of occupation thereof
during the continuance of the lease,
or of compensation for the use and
occupation thereof after such
determination of lease, the
reference in this sub-section to two
thousand rupees shall be construed
as a reference to five thousand
rupees.
Explanation.--For the purposes of
this sub-section, the expression
'building' has the same meaning as
in Article (4) in the Second
Schedule."
3. Amendment of Section 25 of Act IX of
1887.-- In Section 25 of the principal Act the
following proviso thereto shall be inserted,
namely :
"Provided that in relation to any
case decided by a District Judge or
Additional District Judge exercising
the jurisdiction of Judge of Small
Causes, the power of revision under
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this section shall vest in the High
Court."
4. Amendment of the Second Schedule to Act IX
of 1887.-- In the Second Schedule to the
principal Act, for Article (4) the following
Article shall be substituted, namely :
"(4) a suit for the possession of
immovable property or for the
recovery of an interest in such
property, but not including a suit
by a lessor for the eviction of a
lessee from a building after the
determination of his lease, and for
the recovery from him of
compensation for the use and
occupation of that building after
such determination of lease.
Explanation.--For the purposes of
this Article, the expression
'buildings, means a residential or
non-residential roofed structure,
and includes any land (including any
garden), garages and out-houses,
appurtenant to such building, and
also includes any fittings and
fixtures affixed to the building for
the more beneficial enjoyment
thereof."
16. One more amendment, which was affected by U.P. Act
No. 37 of 1972 was amendment in Section 25 of Bengal,
Agra and Assam Civil Courts Act, which was made by
Section 5 of the Act, which is to the following effect:
“5. Amendment of Section 25 of Act XII of
1887. Section 25 of the Bengal, Agra and
Assam Civil Courts Act, 1887, as amended in
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its application to Uttar Pradesh shall be re
numbered as subsection (1) thereof, and
(i) in subsection (1), as so re
numbered, for the existing proviso, the
following proviso shall be substituted,
namely :
"Provided that in relation to suits
of the nature referred to in the
proviso to subsection (3) of
Section 15 of the said Act the
references in this subsection to
one thousand rupees and five hundred
rupees shall be construed
respectively as references to five
thousand rupees and one thousand
rupees."
(ii) after subsection (1) as so re
numbered, the following subsection shall
be inserted, namely :
"(2) The State Government may by
notification in the official
Gazette, confer upon any District
Judge or Additional District Judge
the jurisdiction of a Judge of a
Court of Small Causes under the
Provincial Small Cause Courts Act,
1887, for the trial of all suits
(irrespective of their value), by
the lessor for the eviction of a
lessee from a building after the
determination of his lease, or for
the recovery from him of rent in
respect of the period of occupation
thereof during the continuance of
the lease or of compensation for the
use and occupation thereof after
such determination of lease, and may
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withdraw any jurisdiction so
conferred.
ExplanationFor the purposes of
this subsection, the expression
'building' has same meaning as in
Article (4) in the Second Schedule
to the said Act.
(3) The State Government may by
notification in the official Gazette
delegate to the High Court its powers
under this section."
17. As noted above, the jurisdiction of Small Causes
Court in so far as State of Uttar Pradesh was concerned
was to be vested in both in the Court of Munsifs [now
known as Civil Judge (Junior Division)] and Civil Judge
[now designated as Civil Judge (Senior Division)]. As
noted above, Court of Small Causes were empowered to
take cognizance of small causes having particular
pecuniary jurisdiction only. Section 25 of the Bengal,
Agra and Assam Civil Courts Act, 1887 empowered the
State Government by notification to confer upon any
Subordinate Judges and Munsifs with jurisdiction of
Small Cause Court for the trial of suits and cognizance
of such suits upto the value as fixed in the Act.
21
Section 25 of the Bengal, Agra and Assam Civil Courts
Act, 1887 as applicable in the State of Uttar Pradesh
has been amended as has been noticed above, where the
High Court exercising power under Section 25(2) of the
Bengal, Agra & Assam Civil Courts Act, 1887 can confer
upon any District Judge or Additional District Judge the
jurisdiction of a Judge of Small Causes Court for the
trial of all suits(irrespective of their value), by the
lessor for the eviction of a lessee of a building after
the determination of his lease.
18. In Section 15 of Provincial Small Cause Courts Act,
for subsection (2) and (3), following was substituted
by U.P. Act 17 of 1991 w.e.f. 15.01.1991:
“(2) Subject to the exceptions specified in
that Schedule and to the provisions of any
enactment for the time being in force, all
suits of a civil nature of which the value
does not exceed five thousand rupees shall be
cognizable by a Court of Small Causes;
Provided that in relation to suits by the
lessor for the eviction of a lessee from a
building after the determination of his lease
or for recovery from him of rent in respect
of the period of occupation thereof during
the continuance of the lease, or of
compensation for use and occupation thereof
22
after the determination of the lease, the
reference in this subsection to five
thousand rupees shall be construed as a
reference to twentyfive thousand rupees.
Explanation For the purposes of this sub
section, the expression ‘building’ has the
same meaning as in Art.(4) in the Second
Schedule.”
19. Section 17 of the Act makes the Code of Civil
Procedure applicable to the Court of Small Causes in all
suits cognizable by it and all proceedings arising out
of all such suits. By Uttar Pradesh Civil Laws
(Amendment) Act, 2015 w.e.f. 07.12.2015, Section 19,
Section 21 of the Bengal, Agra and Assam Civil Courts
Act, 1887 and Section 15 of Provincial Small Cause
Courts Act, 1887, were amended. The act contains only
four sections which is to the following effect:
“AN ACT further to amend the Bengal, Agra and
Assam Civil Courts Act, 1887 and the
Provincial Small Cause Courts Act 1887 in
their application to Uttar Pradesh.
IT IS HEREBY enacted in the Sixtysixth year
of Republic of India as follows:
CHAPTER – I
PRELIMINARY
1.(1) This Act may be called the Uttar
Pradesh Civil Laws (Amendment) Act, 2015,
23
(2) It shall extend to whole of Uttar
Pradesh.
CHAPTER – II
Amendment of Bengal, Agra and Assam, Civil
Courts Act1887.
2. Bengal, Agra and Assam, Civil Courts Act
1887 hereinafter in this chapter referred to
as the principal Act,
(a) in subsection (1) for the words “ten
thousand rupees” the words “one lakh rupees”
shall be substituted;
(b) in subsection (2) for the words “twenty
five thousand rupees” the words “five lakh
rupees” shall be substituted.
3. In section 21 of the principal Act, in
subsection (1), in clause (b)
(a) for the words “one lakh rupees” the words
“five lakh rupees” shall be substituted; and
(b) for the words “five lakh rupees” the
words “twenty five lakh rupees” shall be
substituted.
CHAPTER III
Amendment of the Provincial Small Cause
Courts Act, 1887
4. In Section 15 of the Provincial Small
Cause Courts Act, 1887,
(a) in subsection(2) for the words “five
thousand rupees” the words “twenty five
thousand rupees” shall be substituted;
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(b) in the proviso to subsection (2) for the
words “twenty five thousand rupees” the words
“one lakh rupees” shall be substituted.”
20. By the above amendment in the Provincial Small
Cause Courts Act, 1887 the limit of pecuniary
jurisdiction of small causes court was increased from
Rs.25,000/ to Rs.1 Lakh. The Judge, Small Causes Court
in the State of U.P. is seniormost Civil Judge, working
in the district. Although the Court of Small Causes was
empowered to take cognizance of a suit upto the
valuation of Rs.1 lakh w.e.f. 07.12.2015, the suit in
question namely Small Causes Suit No.1 of 2010 which was
pending in the Court of Additional District Judge,
Firozabad continued to proceed in the court of
Additional District Judge. None of the parties raised
any objection with regard to hearing of suit by
Additional District Judge, consequently, the Additional
District Judge heard the parties and by judgment dated
22.10.2016 decreed the suit for eviction and due rent &
compensation. The tenant aggrieved by the judgment of
Additional District Judge filed a revision under Section
25
25 of Provincial Small Cause Courts Act, 1887, before
the High Court.
21. One of the grounds taken before the High Court was
that in view of the U.P. Civil Laws (Amendment) Act,
2015, the Court of Additional District Judge ceased to
have jurisdiction to try suit between lessor and lessee
of value upto Rs.1 Lac w.e.f. 07.12.2015, assumption of
jurisdiction subsequent thereto, is without
jurisdiction.
22. The High Court accepted the above submissions
raised by learned Counsel for the respondent visavis
and allowed the revision by remanding the suit for fresh
decision before Small Causes Court presided by Civil
Judge, Senior Division. Following are the reasons given
by the High Court for allowing the revision:
“...The controversy as to the jurisdiction of
the Judge Small Causes Court has been decided
by this Court, vide judgment dated 29.08.2016
passed in SCC Revision No.278 of 2016,
Shobhit Nigam Vs. Smt. Batulan and another.
It has been held that consequent to the
amendment, in Section 15 of the Provincial
26
Small Causes Court Act, an SCC Suit having a
valuation between Rs.25,000/ to Rs.1 lac
shall lie before the Small Cause Court
presided over by a Civil Judge(Senior
Division). The suits having a valuation of
more than Rs.1 Lac would lie before the
Additional District Judge/District Judge
constituting a Small Causes Court.
Shri Satendra KumarI, who has filed their
counter affidavit in Court today, has not
been able to effectively rebut the
submissions made by the counsel for the
revisionist.
Under the circumstances, this Court finds
that the order impugned is without
jurisdiction and is hereby set aside. The SCC
revision is allowed...”
23. Now we proceed to consider the issues which have
arisen in the present appeals:
ISSUE NO.1 & 2
24. Prior to Uttar Pradesh Civil Laws (Amendment) Act,
2015, as per Section 15(2) of Provincial Small Cause
Court, 1887 as applicable in the State of Uttar Pradesh
in relation to suits by lessor for eviction of lessee
from building after determination of his lease after
27
recovering from him of rent, the Court of Small Causes
would have taken cognizance of suits value of which does
not exceed Rs.25,000/. The suit was filed with the
valuation of Rs.21,175/. The Suit was initially filed
in the Court of Civil Judge, Senior Division, Small
Cause Court, Firozabad. Plaintiff filed a application
for amendment which was allowed permitting the valuation
to be enhanced to Rs.27,775/. The suit thereafter was
transferred to the Court of District Judge and re
numbered as S.C.C.Suit No.1 of 2010.
25. The main issue to be answered is as to whether
after 07.12.2015, the court of Additional District Judge
where the suit in question was pending could still have
pecuniary jurisdiction to decide the suit or suit ought
to have been transferred back to the court of Civil
Judge, Senior Division.
26. The High Court while allowing the revision has
relied on an earlier judgment of the High Court in
Shobhit Nigam vs. Smt.Batulan and another (supra) .
28
27. In above case also the valuation of small causes
suit was Rs.44,000/ and the suit was pending in the
court of Additional District Judge who after U.P. Civil
Laws (Amendment) Act, 2015 proceeded to decide the suit
wide its judgment dated 24.05.2016. S.C.C. Revision
filed in the High Court, the same very argument was
pressed that the order of Additional District Judge is
without jurisdiction. The High Court noticed the
provisions of Section 15 of the Provincial Small Causes
Courts Act, the U.P. Civil Laws (Amendment) Act, 2015
and had also taken note of the objects and reason of
U.P. Civil Laws (Amendment) Act, 2015. The High Court
held that the phrase “institution” as occurring in the
objects and reasons does not confine to institution of
civil suits only and after the amendment w.e.f.
07.12.2015, rather, District Judge and Additional
District Judge could have no jurisdiction to decide
suits having valuation of less than Rs.1 lac and their
jurisdiction shall be only with regard to those cases
which has valuation of over Rs.1 lac. The High Court in
29
Shobhit Nigam’s Case held that assumption of
jurisdiction of Additional District Judge deciding the
suit having valuation of Rs.44,000/ is illegal and set
aside the judgment. In Shobhit Nigam’s case , the High
Court also directed that copy of judgment be circulated
to all District Judges of U.P. for necessary compliance
to ensure that all pending suits of rent and eviction
from a building after determination of lease falling
under proviso to Section 15(2) of the Act upto the
valuation of Rs.1,00,000/ be transferred to the Small
Causes Court presided over by the senior most Civil
Judge, Senior Division of the district irrespective of
the date of their institution.
28. Learned Counsel appearing for the respondent
submitted that judgment of does not
Shobhit Nigam's case
lay down the correct law. He has relied on another
judgment of learned Single Judge decided on 30.08.2017
in S.C.C. Revision No.171 and 172 of 2017, Pankaj Hotel
and others vs. Bal Mukund and others . Learned Single
Judge who decided the case of Pankaj Hotel and others
30
took the contrary view and held that U.P. Civil Laws
(Amendment) Act, 2015 is only prospective in nature and
was applicable with regard to institutions of fresh
suits only. In the suits pending, the Court of District
Judge/Additional District Judge continued to have
pecuniary jurisdiction to decide Small Causes Suits upto
the valuation of Rs.1 lac even after U.P. Civil Laws
(Amendment) Act, 2015 enforced w.e.f. 07.12.2015.
Learned Single Judge referred to an earlier judgment in
S.C.C. Revision defective No. 76 of 2017, Sanjay Sharma
alias Pintu vs. Anil Dua alias Titu , decided on
13.07.2017 where learned Singe Judge had taken a
contrary view to the judgment of learned Single Judge in
Shobhit Nigam’s Case (Supra) .
29. One of the issues, which has to be answered is as
to whether the Court of Additional District Judge, which
has been invested with the jurisdiction of Small Causes
Court after amendment by Uttar Pradesh Civil Laws
(Amendment) Act, 2015 could still have proceeded to
decide the Small Causes Suit w.e.f. 07.12.2015, which
31
suits became cognizable by a Judge Small Causes Court,
i.e., a Court presided by a Civil Judge. For answering
the above issue, we need to find out the Scheme of Small
Cause Courts Act.
30. As noticed above, Small Cause Courts were envisaged
to be Courts, which may expeditiously dispose of small
causes. Small causes were contemplated to be disposed
of by the Courts by following the procedure less
cumbersome as compared to those applicable in the
regular civil courts. By U.P. Act No. 37 of 1972, the
cases by a lessor for eviction of lessee and for
recovery of rent in respect of the period of occupation
was also taken in fold of small causes, which could be
taken cognizance by Small Causes Court after amendment
of Clause (4) of Second Schedule of the Provincial Small
Cause Courts Act, 1887. The amendment made in Section
25 of the Bengal, Agra & Assam Civil Courts Act, 1887 by
U.P. Act No. 37 of 1972 empowered the State Government
to confer upon any District Judge or Additional District
Judge power of Judge of Small Causes Court “for the
32
trial of suits irrespective of their value by the lessor
for the eviction of lessee…..” The above amendment was
necessitated since the Court of Small Causes presided by
Civil Judge could have entertained small causes suits
having value of only five thousand rupees. As per
amendment by U.P. Act No. 37 of 1972 cases by lessor for
the eviction of lessee having valuation of more than
five thousand rupees could not have been taken
cognizance by Civil Judges, who were designated as
Judges of Small Causes Court to take up such cases.
When Legislature treated all suits by the lessor for the
eviction of lessee from a building as a “Small Cause
Suit”, a forum had to be created for deciding such cases
as small cause cases. The expression “irrespective of
their value” used in Section 25 as amended was with
clear intention that irrespective of the value, the
cases filed by the lessor for the eviction of lessee
should be treated as small causes cases and should be
dealt as a small cause case. By subsequent amendment,
the Small Causes Courts presided by Civil Judge become
empowered to decide cases of small cause upto twenty
33
five thousand rupees and cases above twentyfive
thousand rupees by lessor against lessee were to be
taken cognizance by Court of Additional District Judges.
The legislative Scheme contains a clear dichotomy
between cases, which could have been taken cognizance by
small causes courts presided by Civil Judge and those of
small cause cases presided by District Judge or
Additional District Judge. The dividing line was only
valuation of small cause cases relating to suits by
lessor against the lessee. Necessity to empower the
District Judge/Additional District Judge to decide small
cause cases relating to eviction by lessor against
lessee was with the above intent. The Legislature never
intended that all cases pertaining to suits by lessor
against the lessee of any valuation could be filed in
any Small Causes Court.
31. It is true that District Judge or Additional
District Judge functioning as Small Causes Courts can
take cognizance of all suits irrespective of their
value. But use of the words “irrespective of their
34
value” was in contradiction of the pecuniary value,
which was given to Judge of Small Causes Courts presided
by Civil Judge. The fact that District Judge or
Additional District Judge can take cognizance of all
suits irrespective of their value shall not whittle down
or dilute the line of separation between two courts in
taking cognizance of small cause cases. The mere fact
that District Judge or Additional District Judge can
take cognizance of suits of unlimited value will not
empower them to take cognizance of cases, which,
according to statutory Scheme can be taken only by small
causes courts presided by Civil Judge. It is relevant
to notice that the Allahabad High Court had occasion to
consider the provisions of the Provincial Small Cause
Courts Act, 1887 as applicable in the State of Uttar
Pradesh. A reference is made to M.P. Mishra Vs. Sangam
Lal Agarwal, AIR 1975 Allahabad 425. In the above case
before the Allahabad High Court, a small cause suit was
decided by the Additional District Judge, which had
valuation of more than five thousand rupees. Arguments
were raised that valuation of small cause case is more
35
than five thousand rupees, hence Additional District
Judge could not have decided the case as small cause
case rather it ought to have been decided as a normal
civil suit. In the above context, provision of U.P. Act
No. 37 of 1972 and U.P. Act No. 19 of 1973 by which
Section 25 of Bengal, Agra and Assam Civil Courts Act,
1887 was amended by adding another subsection, i.e.
subsection(4), and the notifications issued by the High
Court in above respect were noticed. Paragraph Nos. 5
to 8, which are relevant are as follows:
“ 5. By the U.P. Civil Laws Amendment Act of
1973 (President's Act No. 19 of 1973) another
subsection, namely, Subsection (4) was added
to Section 25. The said Subsection (4) reads
as follows :
"Where the jurisdiction of a Judge
of a Court of Small Causes is
conferred upon any District Judge or
Additional District Judge by
notification under this section,
then, notwithstanding anything
contained in Section 15 of the
Provincial Small Cause Courts Act,
1887 all suits referred to in Sub
section (2) shall be cognizable by
Court of Small Causes."
By virtue of Section 1 (3) of the said Act of
1973 it shall be deemed that the said Sub
section (4) came into force on the 20th
September, 1972, i.e. the date on which the
36
U.P. Civil Laws Amendment Act of 1972 came
into force.
6. Certain notifications which have been
issued may also be noticed here. Notification
No. 4111 (8)/VIIA580/72, dated September 22,
1972, published in Uttar Pradesh Gazette,
dated 30972, Part I (Page 5252), issued by
the State Government lays down as under :
"In exercise of the powers conferred
by Subsection (3) of Section 15 of
the Provincial Small Cause Courts
Act, 1887 (Act IX of 1887) as
amended by the U.P. Civil Laws
Amendment Act, 1972 (U.P. Act No. 37
of 1972) and in continuation of
Government Notification No. 1 (8)
69Nyaya (KaII), dated September
23, 1969, the Governor is pleased to
direct, that subject to the
exceptions specified in the Second
Schedule to the first mentioned Act,
and to the Provisions of any
enactment for the time being in
force, all suite referred to in the
proviso to the said subsection of
which the value does not exceed five
thousand rupees, shall, with effect
from the date of publication of this
notification, be cognizable by the
Courts of Judge. Small Causes,
Bareilly, Moradabad, Meerut,
Gorakhpur, Aligarh, Kanpur,
Allahabad, Varanasi, Agra, Lucknow,
and the Court of additional Judge,
Small Causes, Lucknow."
7. The State Government issued another
notification on the same day i.e. Sep. 22,
1972 dated September 22, 1972, published in
Uttar Pradesh Gazette, Part I, dated October
37
7, 1972 (page No. 5973), which lays down as
under :
"In exercise of the powers under
Subsection (3) of Section 25 of the
Bengal, Agra and Assam Civil Courts
Act, 1887 (Act XII of 1887) as
amended by the Uttar Pradesh Civil
Laws (Amendment) Act, 1972, (U.P.
Act No. 37 of 1972) and in
supersession of all earlier
notifications issued in this behalf,
the Governor is pleased to delegate
to the High Court of Judicature at
Allahabad the powers of the State
Government under the said section."
8. By Notification No. 525 dated 25101972
the High Court conferred "upon all the
District Judges and Additional District
Judges, the jurisdiction of a Judge of a Court
of Small Causes under the Provincial Small
Cause Courts Act, 1887 (Act IX of 1887), for
the trial of all suits (irrespective of their
value) of the nature referred to in the said
Subsection (2)."
32. The High Court also noticed the object and purpose
of Uttar Pradesh Civil Laws (Amendment) Act, 1972 and
High Court held that Additional District Judge had
jurisdiction to take cognizance of cases of valuation of
more than five thousand rupees. In Paragraph Nos. 11
and 12, following was stated:
“ 11. The amendments which were effected by the
U.P. Civil Laws Amendment Act of 1972 were
38
motivated by a consideration that the suits
for eviction filed by the lessors against the
lessees of buildings took an unduly long time
to be finally decided and, therefore, it was
thought advisable that such suits should be
tried as suits of the nature of small causes
suits so that they could be disposed of
expeditiously and there could be no appeal
against the decision of the trial Court. This
change was sought to be brought about by
amending Article 4 of the Second Schedule of
the Provincial Small Cause Courts Act so that
a suit by a lessor for the eviction of a
lessee from a building after the determination
of his lease and for the recovery from him of
compensation for the use and occupation of the
buildings after such determination of lease
was no longer excepted from the cognizance of
the court of small causes. Such suits,
therefore, became triable by the Courts of
Judge, Small Causes and by virtue of Section
16 of the Provincial Small Cause Courts Act
they became exclusively triable by such
courts. Of course, the limitation on account
of the valuation of the suit remained, This
limitation was contained in Section 15(2) and
in Section 15(3). Ordinarily, the jurisdiction
of the Small Causes Court stretched up to Rs.
1,000 under Section 15(2) of the Provincial
Small Cause Courts Act. But under Section
15(3) the State Government was empowered to
raise the pecuniary limit of such jurisdiction
to Rs. 5,000 in respect of suits between the
lessors and the lessees for eviction of the
latter after the determination of their
tenancy from buildings. This result was
brought about by the addition of the proviso
to Section 15(3) by the U.P. Civil Laws
Amendment Act, 1972. As has been stated, the
State Government issued a Notification dated
Sept. 22, 1972, whereby the Court of Judge,
Small Causes situated at Bareilly, Moradabad,
39
Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad,
Varanasi, Agra, Lucknow and the Court of
Additional Judge, Small Causes, Lucknow were
empowered to take cognizance of the suits
between the lessors and the lessees for the
latter's eviction from buildings whose value
does not exceed Rs. 5,000. In view of the
addition of Subsection (2) to Section 25 of
the Bengal, Agra and Assam Civil Courts Act it
became possible to confer upon the District
Judge or Additional District Judge the
jurisdiction of a Judge of a Court of Small
Causes for the trial of suits for eviction of
lessees and for recovery of rents and damages
(disregarding some minor aspects of the
matter). Such a jurisdiction has been
conferred upon the District Judges and the
Additional District Judges by the aforesaid
Notification dated 25101972 issued by this
Court.
12. In view of the aforesaid amendments, in
the district of Allahabad (from where this
revision has arisen) the Court of Judge of
Small Causes had a jurisdiction to take
cognizance of the suits between the lessors
and the lessees in respect of the latter's
eviction from buildings provided the valuation
of such suits does not exceed Rs. 5,000. If
the valuation exceeds Rs. 5,000 then the court
of the District Judge and the Additional
District Judge who have been empowered to take
cognizance of such suits can try the same in
the manner in which suits of the Small Cause
Court nature are tried. In Section 25(2), it
is clearly stated that the District Judge or
the Additional District Judge will have the
jurisdiction of a Judge of a Court of Small
Causes for the trial of the aforesaid variety
of suits irrespective of their value. In my
view, if the contention on behalf of the
applicant were to be accepted then it will be
40
doing violence to the said expression. Any
interpretation which seeks to put a limitation
on the valuation of the Suits cognizable by
the District Judge or the Additional District
Judge will be contrary to the clear expression
used in Subsection (2) of Section 25
"irrespective of their value". Learned counsel
for the applicant placed reliance on the
pronouncement of the Supreme Court reported in
Raja Soap Factory v. S. P. Shantharaj [AIR
(1965) SC 1449. In my view, the said
pronouncement does not support the contention
on behalf of the applicant. Counsel also
sought to support his contention by inviting
my attention to Subsection (4) added to
Section 25 by the U.P. Civil Laws Amendment
Act of 1973. The said Subsection (4) has been
reproduced above and in the concluding portion
thereof the words used are "......... all
suits referred to in Subsection (2) shall be
cognizable by court of Small Causes". It is
urged that if the legislative intention were
that the District Judge or the Additional
District Judge on whom the powers of a Judge
of a Court of Small Causes have been conferred
should take cognizance of the aforesaid
variety of suits between the lessor and the
lessee then in the concluding portion of Sub
section (4) the legislature would not have
used the words "Court of Small Causes" but
would have used the expression "District Judge
or Additional District Judge," counsel
contended that there is a distinction between
a Court of Small Causes established under the
Provincial Small Causes Court and officers who
are invested with the powers of a Judge of
Court of Small Causes. In my opinion this
contention is not valid. In Mt. Sukha v.
Raghunath (AIR 1917 All. 62); D. D. Vidyarthi
v. Ram Pearey Lal (AIR 1935 All 690); Badal
Chandra v. Srikrishna Dey (AIR 1929 Cal 354);
Bhagwan Das v. Keshwar Lal (AIR 1923 Pat 49)
41
and Narayan Sitaram v. Bhagu [(1907) ILR 31
Bom 314)] it has been laid down that the
Courts on which Small Cause Court's powers are
conferred shall also be deemed to be Courts of
Small Causes. Section 4 of the Provincial
Small Cause Courts Act lays down as under:
"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."
It is clear that the expression "Court of
Small Causes" has to be interpreted in the
context in which the said expression is used.
In my view, the expression 'Court of Small
Causes' used at the end of subsection (4) of
Section 25 really means and refers to a
District Judge or Additional District Judge on
whom the jurisdiction of a Judge of Small
Causes has been conferred.”
33. The Allahabad High Court has followed the above
judgment in several cases subsequently.
34. Whether the Additional District Judge, in the facts
of the present case, had jurisdiction to take cognizance
of small causes suits having valuation upto Rs. 1 lakh
and could still have proceeded to decide the suit, whose
42
valuation was less than Rs. 1 lakh? We may also notice
provision of Section 15 of the Code of Civil Procedure,
which provides that suits shall be instituted in the
Court of the lowest grade competent to try it. Section
15 of Code of Civil Procedure is as follows:
“Every suit shall be instituted in the Court
of the lowest grade competent to try it.”
35. The purpose of Section 15 is obvious that even
though more than one court has jurisdiction to try the
suit, it should be instituted in the Court of lowest
grade. For example, a small cause case can be instituted
in Court of Small Cause presided by Civil Judge having
valuation of upto Rs. 1 lakh as on date and small cause
suit having valuation of more than Rs. 1 lakh can be
instituted in the Court of District Judge or Additional
District Judge. As per Section 15 of the Code of Civil
Procedure, suit of less than Rs. 1 lakh valuation has to
be instituted in Small Causes Court presided by Civil
Judge. Although, District Judge or Additional District
Judge has unlimited pecuniary jurisdiction but under the
legislative Scheme, the suit is not to be taken
43
cognizance by the District Judge or Additional District
Judge, which has valuation upto Rs. 1 lakh. Even if
Section 15 of the C.P.C. is a provision, which regulates
the institution of suits and does not affect the
jurisdiction of Courts, reading the provision of Section
15 alongwith relevant provisions of the Provincial Small
Cause Courts Act, 1887 and t he Bengal, Agra, Assam Civil
Courts Act, 1887, the legislative Scheme is clear that
small cause cases should be taken cognizance by Small
Cause Courts presided by Civil Judge upto the valuation
of Rs. 1 lakh and cases having valuation of more than
Rs. 1 lakh by District Judge or Additional District
Judge, who have been invested with the power of Small
Cause Courts. Unless the above legislative intent and
Scheme is followed, there shall be confusion and
inconsistency. The legislative provisions have to be
interpreted in a manner, which may advance the object
and purpose of the Act. When clear dichotomy regarding
taking cognizance of small causes suits presided by
Civil Judge and by District Judge or Additional District
Judge have been provided for, the said dichotomy and
44
separation to take cognizance of cases has to be
followed to further the object and purpose of
legislation.
36. In Pankaj Hotel case (supra) , the Court took the
view that since the Court of District Judge or
Additional District Judge, which have been invested with
the power of small causes Court had unlimited pecuniary
jurisdiction, they can validly adjudicate small causes
suits having valuation of less than Rs. 1 lakh even
after amendment by Uttar Pradesh Civil Laws (Amendment)
Act, 2015, we do not approve the above view. When the
Court of District Judge or Additional District Judge
could no longer take cognizance of small cause suits of
having less than Rs. 1 lakh valuation, it was no longer
in the competence of Small Cause Court presided by
District Judge or Additional District Judge to proceed
to decide the suit of having valuation of less than Rs.
1 lakh. Proper course was to transfer the cases before
a competent court to decide the suits. It is a
different matter that the Court of District Judge or
45
Additional District Judge when proceeded to decide the
small cause suits after 07.12.2015 of valuation of less
than Rs. 1 lakh and neither any objection was raised by
either of the parties nor attention of the Court was
drawn towards the amendment, Section 21 of the C.P.C. is
there to deal with such eventuality, which provision we
shall hereinafter deal separately.
37. Learned Single Judge in Pankaj Hotels' Case(Supra)
has referred to and relied on various judgments of this
Court which shall be referred to hereinafter.
38. Section 15 of the Provincial Small Cause Courts
Act, 1887 bears the title “Cognizance of Suits by Courts
of Small Causes”. Subsection (1) of Section 15 provides
that a Court of Small Causes shall not take cognizance
of the suits specified in the Second Schedule as suit
excepted from the cognizance of Court of Small Causes.
Subsection (2)(as applicable in Uttar Pradesh) provides
that all suits of the civil nature of which the value
does not exceed Rs.5,000/ shall be cognizable by Court
46
of Small Causes. As per the proviso to subsection (2)
in relation to suits by lessor for the eviction of
lessee from building after determination of lease, the
reference of Rs.5,000/ shall be construed as a
reference to Rs.25,000/. The keyword in the provision
is “ shall be cognizable by Court of Small Causes.” What
is the meaning of the phrase ‘Cognizable by Court of
Small Causes’?
39. The word ‘Cognizance’ has been defined in Black’s
Law Dictionary in following manner:
“ Cognizance
(1) A court’s right and power to try and to
determine cases; Jurisdiction,
(2) The taking of judicial or
authoritative notice.
40. Advanced Law Lexicon by P.Ramanatha Aiyar defines
‘Cognizance’ in the following manner:
“ Cognizance. Judicial notice or knowledge;
the judicial recognition or hearing of a
cause; jurisdiction, or right to try and
determine causes. It is a word of the largest
import:embracing all power, authority and
47
jurisdiction. The word “cognizance” is used
in the sense of “right to take notice of and
determine a cause.” Taking cognizance does
not involve any formal action, or indeed
action of any kind, but occurs as soon as a
Magistrate, as such, applies his mind of the
suspected commission of an offence…..”
41. This Court in (2004) 2 SCC 349, State of Himachal
Pradesh vs. M.P.Gupta, had occasion to consider the
expression ‘Cognizance’. The definition of word
‘Cognizance’ as given in Black’s Law Dictionary was
quoted with approval. In paragraph 10 of the judgment,
following was stated:
“10……According to Black’s Law Dictionary the
word “cognizance” means “jurisdiction” or
“the exercise of jurisdiction” or “power to
try and determine causes”. In common
parlance, it means taking notice of. A court,
therefore, is precluded from entertaining a
complaint or taking notice of it or
exercising jurisdiction if it is in respect
of a public servant who is accused of an
offence alleged to have been committed during
discharge of his official duty.
42. The statutory provisions of Section 15(2) of
Provincial Small Cause Courts Act, 1887 uses the
expression “shall be cognizable by the Court of Small
48
Causes”. The word ‘Cognizable’ is a word of wide import.
It takes into its fold institution, hearing and decision
of a case cognizable by it. In
Pankaj Hotels Case,
learned Single Judge of the High Court had noted the
statement of objects of U.P. Civil Laws (Amendment) Act,
2015 and has given emphasis on word “for institution”
and concluded that amendment is prospective in nature
and is applicable only to suits and appeals being
instituted after the amendment. When the plain word in
the statute i.e. Section 15(2) uses the word
“cognizable” whether “statements of objects and reasons”
which uses the word “institution” shall whittle down,
the word ‘cognizable’ as used in Section 15(2). The
statement of objects and reasons of U.P. Civil Laws
(Amendment) Act, 2015, are to the following effect:
“STATEMENT OF OBJECTS AND REASONS
WHEREAS the value of the subject matters
brought to the courts has increased
substantially, the pecuniary jurisdiction of
the Civil Courts as well as those of Small
Cause Courts in the State of Uttar Pradesh
requires to be raised for institution of
Civil Suits and appeals. It has, therefore,
49
become necessary to amend the Bengal, Agra
and Assam Civil Courts Act, 1887 and
Provincial Small Cause courts Act, 1887 to
increase the pecuniary jurisdiction of Civil
Courts and those of small Cause Courts in the
State of Uttar Pradesh for securing better
administration of Justice.
The Uttar Pradesh Civil Laws (Amendment)
Bill, 2015 is introduced accordingly.”
43. It is true that statement of objects noticed that
value of subject matters brought to the courts has
increased substantially, hence, pecuniary jurisdiction
of the Civil Courts as well those of Small Causes Courts
in State of Uttar Pradesh requires to be raised for the
institution of civil suits and appeals. The amendment
has raised pecuniary limits in Provincial Small Cause
Courts Act, 1887. The statement of objects and reasons
explains the reason for increase of pecuniary
jurisdiction but use of word ‘for institution’ in
statement of object cannot control the express language
of the statutory provisions.
44. A threeJudge Bench of this Court in S.S. Bola v.
B.D. Sardana , (1997) 8 SCC 522 , has held that statement
of objects and reasons of the statute can be looked into
50
only as extrinsic aid to find out the legislative intent
only when the meaning of statute by its ordinary
language is obscure and ambiguous. In paragraph 176,
following was laid down:
“176…..But it is a cardinal rule of
interpretation that the Statement of Objects
and Reasons of a statute is to be looked into
as an extrinsic aid to find out the
legislative intent only when the meaning of
the statute by its ordinary language is
obscure or ambiguous. But if the words used
in a statute are clear and unambiguous then
the statute itself declares the intention of
the legislature and in such a case it would
not be permissible for a court to interpret
the statute by examining the Statement of
Objects and Reasons for the statute in
question.”
45. In Subha Ram vs. state of maharashtra, (2003) 1 SCC
506 , this court again laid down that statement of
objects and reasons can be looked into for limited
purpose of ascertaining condition prevailing at the time
which prompted or actuated the proposal of bill to
introduce the same and the extent of existing evil of
the society. Further, in Bhaiji vs. SubDivisional
Officer, (2003) 1 SCC 692 , this court again reiterated
51
the following principles of statutory interpretation in
paragraph 11:
“ Reference to the Statement of Objects
11.
and Reasons is permissible for understanding
the background, the antecedent state of
affairs, the surrounding circumstances in
relation to the statute, and the evil which
the statute sought to remedy. The weight of
judicial authority leans in favour of the
view that the Statement of Objects and
Reasons cannot be utilized for the purpose of
restricting and controlling the plain meaning
of the language employed by the legislature
in drafting a statute and excluding from its
operation such transactions which it plainly
covers. (See Principles of Statutory
Interpretation by Justice G.P. Singh, 8th
Edn., 2001, pp. 20609.)”
46. The statement of object of U.P. Civil Laws
(Amendment) Act, 2015 thus explains the reason for
bringing the amendment for increasing the pecuniary
jurisdiction but the word ‘institution’ used in
statement of object shall not control the expressed
language of Section 15. The expression ‘cognizance’ used
in Section 15 shall mean and include institution hearing
and decision of the case. When statute provides that
cognizance of particular cause is to be taken by a
particular court, no other court can take cognizance of
52
the cause, since legislature never creates or provides
for parallel jurisdiction in two different courts for
taking cognizance of a cause. When Section 15 provides
that all suits of civil nature of which the value does
not exceed Rs.25,000/ “shall be cognizable by the
Courts of Small Causes”, the cognizance shall be taken
by that very Court and no other Court.
47. As noted above, the proviso to subsection (2)
provides that figure Rs.5,000/ shall be construed to
Rs.25,000/. By U.P. Civil Laws (Amendment) Act, 2015,
the figure of Rs.25,000/ stood substituted by Rs.1 lac.
Reading subsection(2) read with proviso and U.P. Civil
Laws (Amendment Act), 2015 clearly means that Small
Cause suits with valuation not exceeding Rs.1 lac shall
be cognizable by Court of Small Causes. When a Small
Cause suit not exceeding value of Rs.1 lac is cognizable
by Court of Small Causes, obviously, no other court can
take cognizance. Additional District Judge to whom small
causes suit in question was transferred since its
valuation was more than of Rs.25,000/ was not competent
53
to take cognizance of the suit after U.P. Civil Laws
(Amendment Act), 2015 w.e.f.07.12.2015, when the suit in
question became cognizable by Small Causes Court i.e.
Court of Civil Judge, Senior Division. To the above
extent, the judgment of learned Single Judge in Shobhit
Nigam’s Case has to be approved and judgment of Single
Judge in Pankaj Hotels (Supra) laying down that even
after 07.12.2015, the Additional District Judge had
jurisdiction to decide the suit in question cannot be
approved.
48. We further observe that learned Single Judge in
Pankaj Hotels case having noticed an earlier view of
learned Single Judge in , and he
Shobhit Nigam’s case
being of the opinion that judgment does not lay down the
correct law, appropriate course open for Single Judge
was to refer the matter for consideration by a larger
bench. The judgments of the High Court are relied on and
followed by all subordinate courts in the State. It is
always better to achieve certainty by an authoritative
opinion by the High Court instead of giving conflicting
54
views by different learned Single Judges which may
confuse the litigants, lawyers and subordinate courts
in applying the law.
ISSUE NO.3
49. It is the submission of learned counsel for the
appellant that even if the Additional District Judge was
not competent to decide the small causes suit on
22.10.2016, the judgment of the Additional District
Judge was not liable to be interfered with by the
revisional court in view of Section 21 of the Code of
Civil Procedure. Section 21 of the Code of Civil
Procedure relates to objection to jurisdiction. Section
21 of the Code of Civil Procedure is as follows:
“ 21. Objections to jurisdiction. — [(1)] No
objection as to the place of suing shall be
allowed by any Appellate or Revisional Court
unless such objection was taken in the Court
of first instance at the earliest possible
opportunity and in all cases where issues are
settled at or before such settlement, and
unless there has been a consequent failure of
justice.
[(2) No objection as to the competence of a
Court with reference to the pecuniary limits
55
of its jurisdiction shall be allowed by any
Appellate or Revisional Court unless such
objection was taken in the Court of first
instance at the earliest possible
opportunity, and, in all cases where issues
are settled, at or before such settlement,
and unless there has been a consequent
failure of justice.
(3) No objection as to the competence of the
executing Court with reference to the local
limits of its jurisdiction shall be allowed
by any Appellate or Revisional Court unless
such objection was taken in the executing
Court at the earliest possible opportunity,
and unless there has been a consequent
failure of justice.]”
50. The policy underlying Section 21 of Code of Civil
Procedure is that when the case has been tried by a
court on merits and the judgment rendered, it should not
be liable to be reversed purely on technical grounds,
unless it has resulted in failure of justice. The
provisions akin to Section 21 are also contained in
Section 11 of the Suit Valuation Act, 1887 and Section
99 of Code of Civil Procedure. This Court had occasion
to consider the principle behind Section 21, Code of
Civil Procedure and Section 11 of the Suit Valuation
Act, 1887 in ,
AIR 1954 SC 340 Kiran Singh v. Chaman
56
Paswan . In paragraph 7 of the judgment following was
laid down:
“7……The policy underlying Sections 21 and 99
of the Civil Procedure Code and Section 11 of
the Suits Valuation Act is the same, namely,
that when a case had been tried by a court on
the merits and judgment rendered, it should
not be liable to be reversed purely on
technical grounds, unless it had resulted in
failure of justice, and the policy of the
legislature has been to treat objections to
jurisdiction both territorial and pecuniary
as technical and not open to consideration by
an appellate court, unless there has been a
prejudice on the merits. The contention of
the appellants, therefore, that the decree
and judgment of the District Court, Monghyr,
should be treated as a nullity cannot be
sustained under Section 11 of the Suits
Valuation Act.”
51. One more submission which was raised in the said
appeal was considered by this Court. One of the
submission of the appellant who had instituted the suit
in the subordinate court was that as per the revised
valuation, the appeal against the decree of subordinate
judge did not lay before the District Court but to the
High Court, hence, the judgment of the District Judge in
appeal should be ignored. The appeal in the High Court
be treated as first appeal. It was contended that
57
appellant has been prejudiced in the above manner.
Rejecting the above submissions, this court laid down
following in paragraphs 11 and 12:
“ 11 .………This argument proceeds on a
misconception. The right of appeal is no doubt
a substantive right, and its deprivation is a
serious prejudice; but the appellants have not
been deprived of the right of appeal against
the judgment of the Subordinate Court. The law
does provide an appeal against that judgment
to the District Court, and the plaintiffs have
exercised that right. Indeed, the
undervaluation has enlarged the appellants’
right of appeal, because while they would have
had only a right of one appeal and that to the
High Court if the suit had been correctly
valued, by reason of the undervaluation they
obtained right to two appeals, one to the
District Court and another to the High Court.
The complaint of the appellants really is not
that they had been deprived of a right of
appeal against the judgment of the Subordinate
Court, which they have not been, but that an
appeal on the facts against that judgment was
heard by the District Court and not by the
High Court. This objection therefore amounts
to this that a change in the forum of appeal
is by itself a matter of prejudice for the
purpose of Section 11 of the Suits Valuation
Act.
The question, therefore, is, can a decree
12.
passed on appeal by a court which had
jurisdiction to entertain it only by reason of
undervaluation, be set aside on the ground
that on a true valuation that court was not
competent to entertain the appeal? Three High
Courts have considered the matter in Full
Benches, and have come to the conclusion that
58
mere change of forum is not a prejudice within
the meaning of Section 11 of the Suits
Valuation Act. Vide Kelu Achan v. Cheriya
Parvathi Nethiar Mool Chand v. Ram Kishan and
Ramdeo Singh v. Raj Narain . In our judgment,
the opinion expressed in these decisions is
correct………”
52. The above principle has been reiterated by this
Court in AIR (1962) SC 199, Hiralal vs. Kalinath and AIR
1963 SC 634, Bahrain Petroleum Co. vs. P.J.Pappu and
Another.
53. This court in (1993) 2 SCC 130, R.S.D.V. Finance
Company Private Limited vs. Shree Vallabh Glass Works
Ltd. had again considered Section 21 of the Code of
Civil Procedure. In paragraphs 7 and 8, following has
been laid down:
“ 7 ………It may be further noted that the learned
Single Judge trying the suit had recorded a
finding that the Bombay Court had
jurisdiction to entertain and decide the
suit. Subsection (1) of Section 21 of the
Code of Civil Procedure provides that no
objection as to the place of suing shall be
allowed by any appellate or revisional court
unless such objection was taken in the court
of first instance at the earliest possible
opportunity and in all cases where issues are
settled at or before such settlement and
unless there has been consequent failure of
59
justice. The above provision clearly lays
down that such objection as to the place of
suing shall be allowed by the appellate or
revisional court subject to the following
conditions:
(i) That such objection was taken in the
court of first instance at the earliest
possible opportunity;
(ii) in all cases where issues are
settled then at or before such settlement
of issues;
(iii) there has been a consequent failure
of justice.
8. In the present case though the first two
conditions are satisfied but the third
condition of failure of justice is not
fulfilled. As already mentioned above there
was no dispute regarding the merits of the
claim. The defendant has admitted the deposit
of Rs 10,00,000 by the plaintiff, as well as
the issuing of the five cheques. We are thus
clearly of the view that there is no failure
of justice to the defendant by decreeing of
the suit by the learned Single Judge of the
Bombay High Court, on the contrary it would
be totally unjust and failure of justice to
the plaintiff in case such objection relating
to jurisdiction is to be maintained as
allowed by the Division Bench of the High
Court in its appellate jurisdiction.”
54. In (2005) 7 SCC 791, Harshad Chiman Lal Modi vs.
DLF Universal Ltd. , this court had again considered
Section 21 and other provisions of Code of Civil
60
Procedure. In paragraph 30, following has been laid
down:
“30…………The jurisdiction of a court may be
classified into several categories. The
important categories are (i) territorial or
local jurisdiction; (ii) pecuniary
jurisdiction; and (iii) jurisdiction over the
subjectmatter. So far as territorial and
pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be
taken at the earliest possible opportunity
and in any case at or before settlement of
issues. The law is well settled on the point
that if such objection is not taken at the
earliest, it cannot be allowed to be taken at
a subsequent stage. Jurisdiction as to
subjectmatter, however, is totally distinct
and stands on a different footing. Where a
court has no jurisdiction over the subject
matter of the suit by reason of any
limitation imposed by statute, charter or
commission, it cannot take up the cause or
matter. An order passed by a court having no
jurisdiction is a nullity.”
55. Again in
(2007) 13 SCC 650, Subhash Mahadevasa
Habib v. Nemasa Ambasa Dharmadas , this court held that
there is distinction between lack of inherent
jurisdiction and objection to territorial and pecuniary
jurisdiction. This court noticed the amendments made in
Section 21 in the year 1976. Following was stated in
paragraph 34, 37 and 41:
61
“ 34. It may be noted that Section 21 provided
that no objection as to place of the suing
can be allowed by even an appellate or
revisional court unless such objection was
taken in the court of first instance at the
earliest possible opportunity and unless
there has been a consequent failure of
justice. In 1976, the existing section was
numbered as subsection (1) and subsection
(2) was added relating to pecuniary
jurisdiction by providing that no objection
as to competence of a court with reference to
the pecuniary limits of its jurisdiction
shall be allowed by any appellate or
revisional court unless such objection had
been taken in the first instance at the
earliest possible opportunity and unless
there had been a consequent failure of
justice………
37. As can be seen, Amendment Act 104 of 1976
introduced subsection (2) relating to
pecuniary jurisdiction and put it on a par
with the objection to territorial
jurisdiction and the competence to raise an
objection in that regard even in an appeal
from the very decree. This was obviously done
in the light of the interpretation placed on
Section 21 of the Code as it existed and
Section 11 of the Suits Valuation Act by this
Court in Kiran Singh v. Chaman Paswan5
followed by Hiralal Patni v. Kali Nath6 and
Bahrein Petroleum Co. Ltd. v. P.J. Pappu4.
Therefore, there is no justification in
understanding the expression “objection as to
place of suing” occurring in Section 21A as
being confined to an objection only in the
territorial sense and not in the pecuniary
sense. Both could be understood, especially
in the context of the amendment to Section 21
brought about by the Amendment Act, as
objection to place of suing.
62
41. In the light of the above, it is clear
that no objection to the pecuniary
jurisdiction of the court which tried OS No.
61 of 1971 could be raised successfully even
in an appeal against that very decree unless
it had been raised at the earliest
opportunity and a failure of justice or
prejudice was shown. Obviously therefore, it
could not be collaterally challenged. That
too not by the plaintiffs therein, but by a
defendant whose alienation was unsuccessfully
challenged by the plaintiffs in that suit.”
56. Now, reverting back to facts of this case it is
apparent from the judgment dated 22.10.2016 of
Additional District Judge, that no objection to the
competence of Additional District Judge to decide the
case was taken by any of the parties. No objection
having been taken to the pecuniary jurisdiction of the
Additional District Judge, Section 21 of the Civil
Procedure Code comes into play. Subsection (2) of
Section 21 provides that no objection as to the
competence of the Court with reference to the pecuniary
limits of the jurisdiction shall be allowed by any
Appellate or Revisional Court unless conditions
mentioned therein are fulfilled. No objection has been
63
raised by respondent tenant regarding competence of the
Court. Subsection (2) precludes the revisionist to
raise any objection regarding competence of the court
and further revisional court ought not to have allowed
such objection regarding competence of Court of
Additional District Judge to decide the suit. The
respondent tenant did not raise any objection regarding
competence of the Court and took a chance to obtain
judgments in his favour on merits, he cannot be allowed
to turnround and contend that the court of Additional
District Judge had no jurisdiction to try the Small
Cause Suit and the judgment is without jurisdiction and
nullity. Section 21 has been enacted to thwart any such
objection by unsuccessful party who did not raise any
objection regarding competence of court and allowed the
matter to be heard on merits. Further, in deciding the
small cause suit by Additional District Judge, the
tenant has not proved that there has been a consequent
failure of justice.
64
57. The High Court in the impugned judgment has not
adverted to Section 21 of the Code of Civil Procedure.
In judgment of also, affect of
Shobhit Nigam(Supra)
Section 21 was neither considered nor raised. Section 21
contains a legislative policy which policy has an object
and purpose. The object is also to avoid retrial of
cases on merit on basis of technical objections.
58. There is another judgment of Single Judge of the
High Court referred to by the learned counsel for the
respondent i.e. SCC Revision No.305 of 2016, Tejumal vs.
Mohd. Sarfraz, 2017 (121) ALR 392 . In the above case,
learned Single Judge had allowed the revision under
Section 25 against the judgment dated 12.08.2016 passed
by Additional District and Sessions Judge on the ground
that the judgment of Additional District Judge was
without jurisdiction. In paragraph 6 of the judgment,
High Court had noticed judgment of this court in
R.S.D.V. Finance Company Private Limited vs. Shree
Vallabh Glass Works Ltd . where it was held that in view
of Section 21(1) of the Code of Civil Procedure,
65
objection as to the place of suing should be taken by
the party concerned in the court of first instance at
the earliest possible opportunity and the objection to
this effect shall not be allowed by the Appellate or
Revisional Court but relying on the judgment of this
Court in Kiran Singh Vs. Chaman Paswan , learned Single
Judge held that defect of jurisdiction whether pecuniary
or territorial or to the subject matter cannot be cured
and can be set up at any stage of the proceeding.
59. We are of the view that the above view of the
learned Single Judge is neither in consonance with the
judgment of this Court in Kiran Singh’s case nor with
R.S.D.V. Finance Company Private Limited (supra) which
has been noted and referred to by learned Single Judge.
Section 21 is statutory recognition of the legislative
policy which cannot be ignored or given a goby by the
litigants who challenges an unfavourable decision.
66
60. We thus of the view that the view of the learned
Single Judge in Tejumal Vs. Mohd. Sarfraj does not lay
down the correct law and cannot be approved.
61. In the foregoing discussion, we are of the view
that High Court committed error in allowing the S.C.C.
Revision filed by the respondent tenant without taking
into consideration Section 21 of the Civil Procedure
Code.
62. We thus hold that even when the court of Additional
District Judge was not competent to decide the Small
Causes Suit in question on the ground that the pecuniary
jurisdiction is vested in Court of Small Causes i.e.
Civil Judge, Senior Division w.e.f. 07.12.2015, no
interference was called in the judgment of Additional
District Judge in the exercise of Revisional
Jurisdiction by High Court in view of the provisions of
Section 21 of Civil Procedure Code.
67
63. In result, the appeals are allowed. The judgment of
the High Court dated 07.12.2016 is set aside. Parties
shall bear their own costs.
.....................J.
( A.K. SIKRI )
.....................J.
( ASHOK BHUSHAN )
NEW DELHI
October 12,2018.