Madras High Court
C.Ramalingam vs M/S.Central Bank Of India on 7 November, 2022
1 C.R.P.No.158 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07 .11.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
C.R.P.(PD)No.158 of 2022
in CMP.No.854 of 2022
1.C.Ramalingam
2.C.Sampath
...Petitioners/plaintiffs
Versus
M/s.Central Bank of India
Rep. By its Chief Manager,
Mylapore Branch,
New No.17, Old No.5, Luz Church Road,
Mylapore, Chennai. ...Respondent
PRAYER: Civil Revision Petition filed under Section 115 of CPC, praying to
set aside the fair order and decreetal order dated 01.11.2021 passed in
N.T.A.No.1 of 2021, by the learned Chief Judge, Small Causes Court,
Chennai, reversing the order dated 30.09.2021, passed in Distress
Application No.1 of 2020 by the learned Registrar, Small Causes Court,
Chennai and dismiss NTA.No.1 of 2021 by allowing D.A.No.1 of 2020.
For Petitioner :Mr.N.Nagu Sah
For Respondent :Mr.J.M.Hariharan
https://www.mhc.tn.gov.in/judis
2 C.R.P.No.158 of 2022
O R D E R
The Civil Revision Petition is filed by plaintiffs in a distress application, challenging the order passed by Chief Judge of Court of Small Cause, Chennai in new trial Appeal 1 of 2021 by setting aside the order passed by Registrar of the Small Causes Court, issuing distress warrant, in favour of petitioners against the movable of the respondent for the value of Rs.1,33,056/- towards arrears of rent from 01.09.2019 to 31.12.2019.
2. The petitioners herein filed distress application before the Registrar of the Small Causes Court, Chennai, claiming that the respondent was a tenant in respect of a non-residential building in the ground floor of premises bearing New Door No.17, Old Door No.5, Luz Church Road, Mylapore, Chennai – 4 and he committed default in payment of agreed monthly rent of Rs.33,264/- per month from September 2019 to December 2019. Thus, the total arrears of rent was Rs.1,33,056/- towards arrears of rent for four months and they prayed for issue of distress warrant against the movables of the respondent described in the schedule to the petition. https://www.mhc.tn.gov.in/judis 3 C.R.P.No.158 of 2022
3. The respondent herein filed a counter affidavit wherein it had averred that site of the building belonged to Sri Kabaleeswarar temple, Mylapore it was stated that the large extent of 24 grounds and 1288 sq.ft of land of which the building claimed by the petitioners was a portion, was let out by said temple to one Soundararaja Iyengar. The said lease period had expired on 05.01.1997. It was stated that the petitioners claimed right over a small portion of the said site namely 1600 sq.ft through one Soundararaja Iyengar. It was stated that the plaintiffs failed to renew the lease directly with the temple and consequently temple had initiated proceedings for eviction treating the petitioners and the respondent as trespassers. It was further submitted that in view of imminent threat of eviction by the paramount title holder namely the temple, the revision petitioners/plaintiffs have no right to sustain the distress application against the respondent. The distress application, having been filed by suppressing the above said material facts was not maintainable as there is a dispute with regard to the entitlement of the petitioners to claim rent. The Registrar of the Small Causes Court, Chennai, issued distress warrant as prayed for as against the movables of the respondent and aggrieved by the same, the respondent had filed new trial application in NTA.No.1 of 2021, before the Chief Judge, Small Causes https://www.mhc.tn.gov.in/judis 4 C.R.P.No.158 of 2022 Court, Chennai, under Section 38 of The Presidency Small Cause Courts Act, 1882 (hereinafter referred to as 'the Act'). The Chief Judge, Small Causes Court, Chennai, passed an order allowing the new trial application. Aggrieved by the same, the petitioners/plaintiffs have come up before this Court.
4. The learned counsel for the petitioners submitted that against the order passed issuing distress warrant in an application moved under Section 53 of the Act, remedy available to the aggrieved person is to invoke Section 60 of the said Act by filing an application before the Registrar, seeking discharge or suspension of the warrant or release of distrained articles. In the case on hand, invoking Section 60 of the Act, the respondent filed a new trial application under Section 36 r/w 38 of the said Act and the same is not at all maintainable. Secondly, the learned counsel for the petitioners submitted that even assuming the new trial application is maintainable, the said application has to be heard by a Bench of two Judges of the Small Causes Court and in the instant case, the certified copy issued by Court of Small Causes indicate that the new trial application was heard by only the Chief Judge of Small Causes Court and hence the same is liable to be set aside.
https://www.mhc.tn.gov.in/judis 5 C.R.P.No.158 of 2022
5. Per contra, the learned counsel for the respondent submitted that the question of invoking Section 60 of Presidency Small Cause Courts Act would arise only in cases where in pursuance of distress warrant issued by Registrar, the movables were seized. But, in cases where the defendant wants to challenge the order issuing the distress warrant before seizure of the goods, the remedy available to the aggrieved parties is filing new trial application under Section 36 r/w 38 of the Act. As far as second contention of the learned counsel for the petitioners regarding constitution of the Court is concerned, the learned counsel for the respondent submitted that the matter was heard by a Bench consisting two learned Judges of Court of Small Causes. However, it was signed only by the Chief Judge of Small Causes Court. The learned counsel further submitted in case, this Court comes to the conclusion that the order impugned in the revision is not sustainable on that technical ground, the matter may be remitted back for consideration by Bench of two learned Judges, Small Causes Court.
https://www.mhc.tn.gov.in/judis 6 C.R.P.No.158 of 2022
6. Section 60 of Presidency of Small Cause Courts Act, reads as follows:
“The debtor or any other person alleging himself to be the owner of any property seized under this Chapter, or the duly constituted attorney of such debtor or other person, may, at any time within five days from such seizure, apply to any Judge of the said Court to discharge or suspend the warrant, or to release a distrained article, and such Judge may discharge or suspend such warrant or release such article accordingly, upon such terms as he thinks just and any of the Judges of the said Court may in his discretion give reasonable time to the debtor to pay the rent due from him. Upon any such application, the costs attending it and attending the issue and execution of the warrant shall be in the discretion of the Judge, and shall be paid as he directs.”
7. The reading of the above provision would suggest that cause of action for invoking Section 60 would arise only on seizure of property in pursuance of distress warrant issued in an application filed under Section 53. As far as the case on hand is concerned, admittedly, the movables of the respondent have not been seized in pursuance of distress warrant issued by https://www.mhc.tn.gov.in/judis 7 C.R.P.No.158 of 2022 the Registrar, Court of Small Causes. Therefore, the contention made by the learned counsel for the petitioners that remedy lies under Section 60 of the Act, not under Section 36 r/w 38 of said Act cannot be countenanced.
8. Sections 36 and 38 of Presidency of Court of Small Cause Act read as follows:
“Section 36 Decrees and orders of Registrar to be subject to new trial as if made by a Judge. Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court.
Section 38 New trial of contested cases. - Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure) order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
https://www.mhc.tn.gov.in/judis 8 C.R.P.No.158 of 2022 Explanation. - Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.”
9. Section 36 of the Presidency Small Cause Courts Act, 1882 makes it clear that every decree and order made by Registrar in any suit or proceedings shall be subject to the same provisions, in regard to the new trial, as if made by the Judge of Small Causes Court. In the case on hand, the distress warrant was issued by Registrar in a proceedings initiated under Section 53 of the Act. Admittedly, in pursuance of distress warrant, no seizure has been made so far. Therefore, there is no cause of action to invoke Section 60 of the Act. Hence, the remedy lies in invoking Section 36 r/w 38 of the Act. Hence, I hold that new trial application filed by the respondent is maintainable.
10. The learned counsel for the petitioners relied upon the judgment of this Court reported in 1988 (1) MLJ 122 in Sadhanandhan Vs Leelavathy, for the proposition that only after seizure of the movable property found in and upon the houses mentioned in the warrant, the affected persons can come forward with an application either under Section 60 or 61 of the https://www.mhc.tn.gov.in/judis 9 C.R.P.No.158 of 2022 Act. As between the applicant and the debtor, the Act does not contemplate adjudication of any disputed questions. Even as per the decision cited by the learned counsel for the petitioners, question of invoking Section 60 of the Act would arise only after seizure of movables. In the case on hand, admittedly, the movables were not seized. At that stage, the respondent is not entitled to invoke Section 60 of the Act. In view of the clear wordings in Section 36 that every order made by Registrar in any proceedings shall be subject to the same provisions, with regard to the new trial application, I hold that NTA.No.1 of 2021 filed by respondent is maintainable.
11. As per Order XLI Rule 3 of the Rules framed under the Presidency Small Cause Courts Act, 1882, an application under Section 38 of the Presidency Small Cause Courts Act, 1882 shall be heard by a Bench consisting of atleast two Judges constituted by the Chief Judge or in his absence by the next available Judge in rank and precedence. The said Rule reads as follows:-
“3. Constitution of Court to hear such application.- The application shall be heard by a Bench consisting of at least two Judges constituted by the Chief Judge or in his absence by the next available Judge in rank and precedence.” https://www.mhc.tn.gov.in/judis 10 C.R.P.No.158 of 2022 In the case on hand, the learned counsel for the respondent submitted that the matter was heard by Chief Judge, Court of Small Causes, along with another learned Judge, but, it was signed only by Chief Judge of Court of Small Causes. I have perused the original records received from the Court below.
12. There is nothing on record to suggest that the matter was heard by Chief Judge of Court of Small causes along with another learned Judge of Court of Small Causes. The impugned order was signed only by the Chief Judge of Court of Small Causes. The preamble portion of the order also would suggest chief Judge of the Court of Small Causes, alone heard the matter. In these circumstances, the new trial application was not heard and disposed of in accordance with the Order XLI Rule 3 of Rules framed under the Presidency Small Cause Courts Act, 1882. Since the non-compliance of said Rule going to the root of the Constitution of Court and Coram, I am inclined to set aside the order passed in new trial application and remand the matter back to the file of Court of Small Causes to re-hear the matter in the light of Order XLI Rule 3 as indicated above.
https://www.mhc.tn.gov.in/judis 11 C.R.P.No.158 of 2022
13. Accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
07.11.2022 Index: Yes/ No Speaking Order / Non-Speaking Order ub To
1. The Chief Judges, Small Causes Court, Chennai.
2. The Registrar, Small Causes Court, Chennai.
S.SOUNTHAR, J.
ub https://www.mhc.tn.gov.in/judis 12 C.R.P.No.158 of 2022 C.R.P.No.158 of 2022 07.11.2022 https://www.mhc.tn.gov.in/judis