Gujarat High Court
Bharatbhai Nanabhai Harijan vs Mangalsingh Shyamsingh Gil on 8 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/227/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 227 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
CIRCULATE THIS JUDGMENT IN THE SUBORDINATE
JUDICIARY
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BHARATBHAI NANABHAI HARIJAN
Versus
MANGALSINGH SHYAMSINGH GIL
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Appearance:
MR. JAY M THAKKAR(6677) for the PETITIONER(s) No. 1,2
VIRAJ P THAKKAR(9333) for the PETITIONER(s) No. 1,2
MR YATIN SONI(868) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/08/2018
ORAL JUDGMENT
1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') is at the instance of the original defendants and is directed against the judgment and order dated 28th July 2017 passed by the 12th Additional Page 1 of 141 C/SA/227/2018 JUDGMENT District Judge, Vadodara, in the Regular Appeal No.87 of 2016 arising from the judgment and decree passed by the 12th Additional Senior Civil Judge, Vadodara, dated 28th October 2016 in the Special Summary Suit No.40 of 2007 (converted to Regular Money Suit No.761 of 2016).
2. It appears from the materials on record that the respondent herein - original plaintiff filed a Special Summary Suit No.40 of 2007 in the court of the learned Additional Civil Judge, Vadodara, for recovery of money to the tune of Rs.2,75,000=00. In view of the order dated 26th October 2016 passed by the 12th Additional Senior Civil Judge, Vadodara, the same came to be converted to Regular Money Suit No.761 of 2016. The appellants herein - original defendants appeared before the trial court and contested the suit by filing their written statement vide Exh.15. The trial court framed the following issues :
"[1] Whether the plaintiff proves that he had given Rs.1,00,000=00 in cash on 5.1.2005 and Rs.1,00,000=00 in cash on 10.1.2005 to the defendant nos.1 and 2 in lieu thereof the defendants had issued two promissory notes to the plaintiff ?
[2] Whether defendants prove that their signatures and thumb impressions were obtained on blank forms and on blank promissory notes ?
[3] Whether the plaint of the plaintiff is barred by Limitation ?Page 2 of 141
C/SA/227/2018 JUDGMENT [4] Whether the plaintiff is entitled to get the reliefs as prayed for in the plaint ?
[5] What order and decree ?"
3. The issues framed by the court below came to be answered as under :
"[1] In the affirmative.
[2] In the negative.
[3] In the negative.
[4] Party in the affirmative.
[5] As per final order."
4. The trial court, upon final adjudication of the controversy between the parties and upon appreciation of the oral as well as documentary evidence, partly allowed the suit and passed a decree of recovery of Rs.2 lac from the defendants at the rate of 9% interest from the date of filing of the suit.
5. The appellants herein - original defendants, being dissatisfied with the judgment and decree passed by the trial court, preferred the Regular Appeal No.87 of 2016 in the District Court at Vadodara.Page 3 of 141
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6. The lower appellate court, upon re-appreciation of the entire oral as well as documentary evidence, thought fit to affirm the judgment and decree passed by the trial court and thereby dismissed the appeal.
7. Being dissatisfied with the judgment and order passed by the lower appellate court dismissing the appeal, the appellants - original defendants are here before this Court with this Second Appeal under Section 100 of the Code.
8. The following questions have been formulated as the substantial questions of law in the memorandum of the second appeal :
"a. Whether the learned 12th Additional Senior Civil Judge, Vadodara was not having jurisdiction to hear and decide the Suit on account of Provincial Small Cause Courts (Gujarat Amendment) Act, 2015, which provides that all suits and applications of civil nature wherein the subject matter exceeds an amount of value of Rs.2 lac but does not exceed Rs.10 lac pending in the District Court immediately before the commencement of Provincial Small Cause Courts (Gujarat Amendment) Act, 2015 shall after such commencement, stand transferred to and can be disposed of by the Judge, Small Cause Court within the local limits of his ordinary jurisdiction and as the subject matter of the present Civil Suit is Rs.2,75,000/- at the commencement of the said amendment Act ?
b. Whether both the Courts below have committed an error in not considering that no documentary evidence is produced Page 4 of 141 C/SA/227/2018 JUDGMENT by the respondent - plaintiff to show that Rs.1 lac and Rs.1 lac were on hand on alleged date as the pension amount referred in document below exh.27 was received on 17.03.2013, whereas, the alleged promissory note is dated 05.01.2005 and 10.01.2005 ?
c. Whether both the Courts below committed an error in not considering that the appellants have not filled up the name, date, amount, etc. in the promissory note indicating that both the appellants were totally blank ?
d. Whether both the Courts below committed an error in placing the burden of proving the case upon the shoulder of the defendants by stating that the defendants failed to prove that the suit promissory note is forged one ?"
SUBMISSIONS ON BEHALF OF THE APPELLANTS -
ORIGINAL DEFENDANTS :
9. Mr.Jay Thakkar, the learned counsel appearing fort the appellants, vehemently submitted that the money decree passed by the trial court and affirmed by the lower appellate court is a nullity. The submission of the learned counsel is that the 12th Additional Senior Civil Judge, Vadodara, had no jurisdiction to hear and decide the suit having regard to the Provincial Small Cause Courts (Gujarat Amendment) Act, 2015 (for short, 'the Amendment Act, 2015'), which provides that all the suits and applications of a civil nature wherein the subject matter exceeds in amount or value two lacs rupees but does not exceed ten lacs rupees pending in the District Courts immediately before the commencement of the Provincial Small Cause Courts (Gujarat Page 5 of 141 C/SA/227/2018 JUDGMENT Amendment) Act, 2015 shall, after such commencement, stand transferred to and be disposed of by the Judge, Small Cause Court within the local limit of his ordinary jurisdiction.
10. It is submitted that in view of Section 16 of the Provincial Small Cause Courts Act, 1887 (for short, 'the Act, 1887'), the court of small causes or the court empowered under the Act, 1887, has the exclusive jurisdiction to entertain and try the suits. Section 16 bars the jurisdiction of the other courts from entertaining such suits.
11. The argument proceeds on the footing that as the Small Cause Court had the exclusive jurisdiction to adjudicate the money suit filed by the original plaintiff, the regular civil court could not have adjudicated the suit and passed the decree in favour of the plaintiff. Such decree, according to the learned counsel, could be termed as a nullity as there was an inherent lack of jurisdiction in the regular civil court to try the suit.
12. The learned counsel appearing for the appellants submitted that the Act, 1887, is a special enactment which provides a speedy and cheap means of settling small causes;
provides for the establishment of courts and conferral of special jurisdiction on them to try such causes; lays down a summary procedure for them; and takes away the jurisdiction of the ordinary court which otherwise had jurisdiction to try them, unless otherwise provided in the Act or any other enactment for the time being in force.
13. The learned counsel further submitted that a court of small causes as such is established under Section 5 of the Act and its territorial limits are defined by the State Government. Even Page 6 of 141 C/SA/227/2018 JUDGMENT where a court of small causes as such is not established, an ordinary court may be invested with jurisdiction of a court of small causes by virtue of any enactment for the time being in force and in that case, the latter court is, having regard to the provisions contained in Section 32 of the Act, practically a Small Cause Court. Section 33 of the Act then declares that in the latter case, such court shall be, for the purposes of the Act and of the Code of Civil Procedure, deemed to comprise of two different courts, that is, (i) a court of small causes in respect of the exercise of that jurisdiction: and (ii) an ordinary court of regular civil jurisdiction in respect of the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a court of small causes.
14. It is also submitted that where, by a legislative provision, the jurisdiction of a court is excluded in respect of a specified subject-matter, the court becomes deprived of the jurisdiction to try such matter. The legislative provision which takes away the jurisdiction of a court in respect of a specified subject-matter, is necessarily imperative and cannot be treated as directory. The word 'shall' in such a provision cannot be read as 'may' and it must be given its ordinary significance, i.e. mandatory. No doubt, if such a provision is declared by the legislature to be subject to any exceptions, those exceptions will also have their operation and will control the main provision.
15. Mr.Thakkar, the learned counsel appearing for the appellants, submitted that even otherwise both the courts below committed an error in holding that the plaintiff is entitled to recover the suit amount from the defendants. It is submitted Page 7 of 141 C/SA/227/2018 JUDGMENT that there is no evidence worth the name to arrive at the conclusion that the suit amount was borrowed by the defendants from the plaintiff.
16. In such circumstances referred to above, the learned counsel appearing for the appellants, prays that there being merit in this Second Appeal, the same may be allowed and the judgment and decree be quashed.
SUBMISSIONS ON BEHALF OF THE DECREE HOLDER (ORIGINAL PLAINTIFF) :
17. On the other hand, this Second Appeal has been vehemently opposed by Mr.Yatin Soni, the learned counsel appearing on caveat for the original plaintiff.
18. Mr.Soni submitted that the debt decree is not a nullity for contravention of Section 16 of the Act, 1887. He would submit that such a decree alleged to have been passed in contravention of Section 16 of the Act, 1887, does not become a nullity for trial of a small cause suit by a court of ordinary civil jurisdiction on the original side. Mr.Soni further submitted that it cannot be said that the case is one of inherent lack of jurisdiction. According to Mr.Soni, the other questions which have been formulated as the substantial questions of law in the memorandum of Second Appeal are all questions of fact. There are concurrent findings of the two courts below as regards the liability of the defendants to pay the suit amount. Mr.Soni would submit that in view of the concurrent findings of fact the two judgments of the courts below may not be disturbed.
Page 8 of 141C/SA/227/2018 JUDGMENT
19. Mr.Soni, in support of his submissions, has placed reliance on the following decisions :
(1) Deepa Jitendra Joshi W/o Apurva Vashishth Thakar v.
Apurva Vashishth Thakar, (2016)2 GLR 1362;
(2) Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, AIR 2007 SC 1077;
(3) Malati Sardar v. National Insurance Company Limited and others, AIR 2016 SC 247;
(4) Oil and Natural Gas Commission v. Utpal Kumar Basu and others, AIR 1994 SCW 3287;
(5) Mantoo Sarkar v. Oriental Insurance Company Limited and another, AIR 2009 SCW 136;
(6) Koopilan Uneen's daughter Pathumma and others v. Koopilan Uneen's son Kuntalan Kutty and others, AIR 1981 SC 1683;
(7) R.S.D.V. Finance Company Pvt. Ltd. v. Shree Vallabh Glass Works Limited, AIR 1993 SCW 2266.
20. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the courts below committed any error in passing the impugned judgments and orders.
Page 9 of 141 C/SA/227/2018 JUDGMENT
ANALYSIS :
21. In my opinion, only the question no.1 could be termed as a substantial question of law. The other three questions, in my view, are questions of fact and there are concurrent findings of the two courts below in that regard.
22. I propose to concentrate on the question no.1, i.e. with regard to the jurisdiction of the civil court to try the suit of a small cause nature.
23. I propose to address myself on the following questions :
(1) Where a suit of a small cause nature is instituted and tried as a regular suit in contravention of the provisions of Section 16 of the Act, 1887, then in such circumstances, whether the judgment so rendered in it could be termed as one without jurisdiction and, therefore, a nullity ?
(2) In view of the scheme of the Act, 1887, and Sections 15 and 16 of the Code, whether the court of small cause could be said to be a court of preferential jurisdiction and not of exclusive jurisdiction ?
(3) Could it be said that the civil court lacks inherent jurisdiction to try a suit of the nature specified in Section 15(2) of the Act, 1887 ?
(4) Whether the failure to comply with Section 16 of the Act, 1887, is merely a defect in the procedure in the proceedings in a court other than a small causes court having jurisdiction to try the case ?Page 10 of 141
C/SA/227/2018 JUDGMENT (5) Whether the court should apply the test of prejudice caused to the parties for the purpose of deciding whether the decree could be said to be without jurisdiction ?
24. Before adverting to the rival submissions canvassed on either side, let me look into few relevant provisions of law. Let me first start with the provisions of the Provincial Small Cause Courts Act, 1887. Section 5 of the Act, 1887, provides for the establishment of courts of small causes. Section 5 reads as under :
"5. Establishment of Courts of Small Causes.- (1) The State Government may, by order in writing, establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency-town.
(2) The local limits of the jurisdiction of the Court of Small Causes shall be such as the State Government may define, and the Court may be held at such place or places within those limits as the State Government may appoint."
25. Section 15 falling in Chapter-III of the Act, 1887, is with regard to cognizance of suits by courts of small causes. Section 15 reads as under :
"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.Page 11 of 141
C/SA/227/2018 JUDGMENT (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.
(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."
26. Section 16 of the Act, 1887, is with regard to the exclusive jurisdiction of courts of small causes. Section 16 reads as under :
"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 having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."
27. Let me now look into the Provincial Small Cause Courts (Gujarat Amendment) Act, 2015. The same reads as under :
"GUJARAT ACT NO.20 OF 2015 (First published, after having received the assent of the President, in the "Gujarat Government Gazette", on the 1st July, 2015).Page 12 of 141
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AN ACT
further to amend the Provincial Small Cause Courts Act, 1887 in its application to the State of Gujarat.
It is hereby enacted in the Sixty-sixth Year of the Republic of India as follows :-
1. (1) This Act may be called the Provincial Small Cause Courts (Gujarat Amendment) Act, 2015.
(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.
2. In the Provincial Small Cause Courts Act, 1887, in its application to the State of Gujarat, in Section 15, in sub- section (3), for the words "two lacs rupees", the words "ten lacs rupees" shall be substituted.
3. All suits and applications of a civil nature wherein the subject matter exceeds in amount of value of two lacs rupees but does not exceed ten lacs rupees pending in the District Courts immediately before the commencement of the Provincial Small Cause Courts (Gujarat Amendment) Act, 2015 shall, after such commencement, stand transferred to and be disposed of by the Judge, Small Cause Court within the local limit of his ordinary jurisdiction."
28. I must also look into Section 17 of the Gujarat Civil Courts Act, 2005. The same reads as under :
Page 13 of 141C/SA/227/2018 JUDGMENT "17. Investment of small cause powers to courts of Senior Civil Judges or Civil Judges. (1) The High Court may, by notification, invest, with such restrictions as it shall from time to time determine, any Court of Senior Civil Judge or a Court of Civil Judge, with the jurisdiction for the trial of suits cognizable by a Court of Small Causes established under the Provincial Small Cause Courts Act, 1887 upto such amount as it may deem proper.
(2) The High Court may, by notification withdraw or alter whenever it thinks fit such jurisdiction of any Court of Senior Civil Judge or Civil judge, so invested."
What is meant by inherent lack of jurisdiction ?
29. The adjective 'inherent' has its origin in the verb 'inhere'. According to the Oxford Dictionary 'inhere' means 'exist, abide in, be vested in'. Therefore, the adjective 'inherent' indicates something which exists or abides or vests in a person or authority. When this adjective is applied to a court's jurisdiction, it means that a jurisdiction to dispose of a cause is vested in it or abides in it. Consequently, inherent lack of jurisdiction means a power or jurisdiction which does not at all exist or vest in a Court. To put it in other words, a Court can be said to lack inherent jurisdiction when the subject-matter before it is wholly foreign to its ambit and is totally unconnected with its recognised jurisdiction. If it has the power to entertain causes of a particular category or nature, then it cannot be said that causes belonging to that category or nature are totally foreign to the jurisdiction of that Court for the reason that they could have Page 14 of 141 C/SA/227/2018 JUDGMENT been brought up before other Courts. It cannot be said that Court could not have seizin of a case when the subject-matter belongs to the nature of its jurisdiction.
30. In the aforesaid context, I may usefully refer to a decision of the Supreme Court in the case of Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199, where this aspect has been dealt with . Although that case was dealing with the question of territorial jurisdiction, yet the observations contained in paragraph 4 relating to the lack of inherent jurisdiction are quite apposite. Chief Justice Sinha clarified the position thus :
"The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject- matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it."
31. Keeping in mind the above clarification as to what is meant by inherent lack of jurisdiction, I now propose to examine the statutory provisions in regard to the jurisdiction of courts in entertaining suits and appeals, both territorial as well as pecuniary.
32. Section 6 of the Civil Procedure Code relates to pecuniary jurisdiction and it says:
Page 15 of 141C/SA/227/2018 JUDGMENT "Save in so far as otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."
33. Section 6 refers to the pecuniary limits of Court's ordinary jurisdiction and says that nothing contained in the Code shall confer higher pecuniary jurisdiction on any Court than what is prescribed. The Code by itself does not prescribe any pecuniary limits. At the same time, it should be remembered that Section 6 purports to deal only with the pecuniary limits of Court's ordinary jurisdiction to entertain suits. It does not purport to deal with appeals. Section 9, however, is the general provision which confers jurisdiction on Courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Sections 15 to 20 relate to the place of suing, that is to say territorial jurisdiction. Like Sections 16 to 20, there is no specific provision in the Code which prescribes the pecuniary jurisdiction. Section 21 before its amendment in 1976, laid down that no objection as to the place of suing shall be allowed by the 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. Before 1976 there was no corresponding provision in Section 21 in regard to the pecuniary limits of Court's jurisdiction. The Parliament thought it necessary to introduce an analogous provision in regard to the Page 16 of 141 C/SA/227/2018 JUDGMENT pecuniary limits of jurisdiction also in Section 21. In consequence, sub-section (2) has been added by the Civil Procedure Code (Amendment) Act, 1976, which reads as follows:
"No objection as to the 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 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."
34. Now, by virtue of the insertion of sub-section (2) also, no objection as to the place of suing or as to the pecuniary limits of Court's jurisdiction can be allowed by any Appellate or Revisional Court unless that objection was taken at the earliest possible opportunity in the Court of first instance. If that bar is applicable to appellate or Revisional Courts, it should apply with greater force to executing Courts.
35. It is true that sub-section (2) of Section 21 has been introduced by the Civil Procedure Code (Amendment) Act, 1976. But I find that the policy of saving the decrees of Courts despite lack of pecuniary jurisdiction if objections were not taken at the earliest opportunity and provided they did not cause any prejudice, has been in vogue all along.
36. I may, for instance, refer to Section 11 of the Suits Valuation Act, 1887. The section indicates that notwithstanding Page 17 of 141 C/SA/227/2018 JUDGMENT anything in Section 578 of the Code, an objection, that a Court, which had no jurisdiction over a suit or appeal, had exercised it by reason of over-valuation or under-valuation, should not be entertained by an appellate Court unless the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. It is immediately seen that though this provision of the law deals with over-valuation or under-valuation, it is concerned with the pecuniary jurisdiction of the Court. The principle behind the section is not far to seek. If the Court is vested with the jurisdiction to entertain a matter of a particular value, the change in that value on account of over-valuation or under-valuation shall not affect the validity of the decree passed by the Court, unless such over-valuation or under-valuation has prejudicially affected the disposal of the suit or appeal on its merits. This section is patently founded on the principle that a Court's decree shall not be affected on the ground of its lack of pecuniary jurisdiction if it had inherent jurisdiction to deal with such matters.
37. A Full Bench of the Madras High Court considered this question in Kelu Achan v. Parvathi, AIR 1924 Mad 6 (FB). Coutts Trotter, J. ( as he then was ) observed that the object of Section 11 is to provide a machinery for curing the original lack of jurisdiction in the circumstances mentioned therein. It was held that the clause in Section 11 of the Suits Valuation Act when referring to prejudically affecting the disposal of a suit or appeal on its merits, is not considering at all the different rules of procedure that there may be an appeal from one Court to another.
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38. The Supreme Court in the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, considered this principle behind Section 11. After pointing out that a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the section, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. Venkatarama Ayyar, J., who spoke for the Court, proceeded to enunciate the principle behind Section 11 of the Suits Valuation Act of 1887 vis-a-vis Sections 21 and 99 of the Code. The learned Judge observed that the principle that underlies Section 11 of the Suits Valuation Act, 1887, is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation, is not to be treated as what it would be but for the section, null and void and that an objection to jurisdiction based on over- valuation or under-valuation, should be dealt with under that section and not otherwise. The same principle has been adopted in Section 21 of the Code, with reference to the objection relating to territorial jurisdiction. The policy underlying Section 21 and Section 99, C.P.C. 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 a prejudice on the merits. This is an important pronouncement of the highest Court of the land on the proposition that the decision of a Court shall not be reversed purely on technical grounds like lack of territorial or pecuniary jurisdiction unless it has resulted in failure of justice of justice and the objection to the lack of jurisdiction was taken at the earliest possible time. The Supreme Page 19 of 141 C/SA/227/2018 JUDGMENT Court clearly explained the policy of the Legislature by stating that it is 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. This decision also makes it clear that the principle of Section 11 of the Suits Valuation Act relating to the pecuniary jurisdiction and that policy is further reiterated in Section 99 of the Code. It is this view which has now been incorporated in sub-section (2) of Section 21 of the Code by the 1976 Civil Procedure Code (Amendment) Act.
39. In Hira Lal (supra), the Supreme Court explained what is meant by inherent lack of jurisdiction. That case arose in regard to an objection to the local jurisdiction of a Court. The Supreme Court pointed out that the objection to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. As we have already pointed out, it could be said that the Court, which has passed a decree, is lacking in inherent jurisdiction only when it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction, or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.
40. A Full Bench of the Allahabad High Court, in the case of Manzurul Haq and another v. Hakim Mohsin, AIR 1970 Page 20 of 141 C/SA/227/2018 JUDGMENT Allahabad 604, had the occasion to consider the question, whether the decision given by a court of small causes in a suit for arrears of rent would operate as res judicata in a suit filed later in the court of Munsif for the recovery of arrears of rent for a different period and for ejectment. It is pertinent to note that the court of small causes had no jurisdiction to entertain a suit for ejectment and, therefore, the later suit had to be filed in the court of Munsif. His Lordship Justice S.D.Khare, in his separate but concurring judgment, held as under :
"20. By virtue of Section 15, Civil P. C. the court of Munsif is the only court in which civil suits upto a certain valuation can be filed. If the civil suits exceed that valuation, they have to be filed in the court of the Civil Judge. However, from that it cannot be inferred that the Civil Judge lacks the initial jurisdiction to entertain cases below a certain valuation. In view of the fact that the law requires that all the suits shall be instituted in the court of the lowest grade competent to try it, a civil suit upto a certain valuation is filed in the court of the Munsif. But for that provision it could have been filed in the court of the Civil Judge also. Even with the provision, where the court of Munsif does not exist and a court of Civil Judge exists, all the suits whatever their valuation might be, will have to be filed in the court of the Civil Judge. In such circumstances it cannot be said that the court of the Munsif has exclusive jurisdiction to try civil suits upto a certain valuation.
21. Similar is the effect of Section 16 of the Provincial Small Cause Courts Act. If a Small Cause Court has not been Page 21 of 141 C/SA/227/2018 JUDGMENT established for any particular area, all the civil suits, whether or not they might be cognizable by a court of small causes, shall have to be instituted in the court of the Munsif exercising jurisdiction in that area. It is only after a Small Cause Court has been established for that area that all suits cognizable by a court of small causes are to be instituted before the court of small causes and not before the court of the Munsif. The Court of small causes thus becomes a court of "preferential jurisdiction", and not of "exclusive jurisdiction".
22. The marginal heading of Section 16 of the Provincial Small Cause Courts Act shows that the court of small causes exercises exclusive jurisdiction. The meaning of the word "exclusive" in that heading is ambiguous. From a reading of Section 16 of the said Act it is clear that the court of small causes is merely a court of preferential and not of exclusive jurisdiction.
23. In this connection the relevant provisions of Sections 3, 5 (2), 6 and 9, Civil P. C. might be examined.
24. Section 3 provides that-
"For the purposes of this Code, the District Court is subordinate to the High Court and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court."Page 22 of 141
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25. Sections 5 and 6 read as follows:-
"5. (1) Where any revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent the State Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.
(2) 'Revenue Court' in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.
6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."
26. Section 9 lays down-
Page 23 of 141C/SA/227/2018 JUDGMENT "The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation:- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
27. The initial jurisdiction to try all suits of a civil nature vests in the civil court. However, that right can be restricted in two ways - one, by excepting suits of which their cognizance is either expressly or impliedly barred, and, second, as between the civil courts of different grades by providing the pecuniary jurisdiction of the civil court of the lowest grade.
28. A suit for the recovery of the rent being a suit of a civil nature can be filed in a civil court where there is no court of small causes. However, in an area where a court of small causes exercises jurisdiction, the suit for arrears of rent upto the valuation cognizable by the court of small causes shall have to be filed in the court of small causes and not in the court of the Munsif, which might be the ordinary court to try such suits. In the absence of a court of small causes the court of Munsif has the jurisdiction to entertain and decide such suit. Therefore, it cannot be said that it lacks inherent Page 24 of 141 C/SA/227/2018 JUDGMENT jurisdiction to try such suits. It only loses jurisdiction when a court of preferential jurisdiction (to wit, a court of small causes) exists.
29. The Court of the Munsif and also the court of small causes are subordinate to the District Court. Under section 24, Civil P. C. the District Court has got the power to transfer the case from the court of small causes to the court of the Munsif. It was held in the case of Dulare Lal v. Hazari Lal AIR 1914 All 229 that where a Small Cause Court suit is transferred from the court of small causes to the court of the Munsif, the decision given by the Munsif will not be appealable but it will not be res judicata in subsequent suits not cognizable by court of small causes. Again it was held in the case of Shakira Bibi v. Nandan Rai, AIR 1922 All 241 by a single Judge of this Court that the decision given by a Judge, Small Cause Court, will not operate as res judicata in a subsequent suit if the Small Cause Court was not competent to try the later suit. The same view was taken in the case of Ram Kishun v. Murlidhar Sharma, AIR 1960 Pat 484 by a learned single Judge. It was held in the case of Pateshwari Parshad v. A. S. Gilani, AIR 1959 Punj 420 that a Small Cause Court is not a court of exclusive jurisdiction, that it is a court of preferential jurisdiction only and that its decision will not bar any subsequent suit which the court of small causes was not competent to try.
In the case of Lala Jageshwar Prasad v. Shyam Behari Lal, AIR 1967 All 125 a learned Judge of this Court, relying on Page 25 of 141 C/SA/227/2018 JUDGMENT the case of AIR 1953 SC 33 (supra) has held that the court of small causes is a court of exclusive jurisdiction and therefore, the decision given by the Small Cause Court will operate as res judicata in a subsequent suit as general principles of res judicata could be applied. We have not been able to find in the case of Raj Lakshmi Dasi, AIR 1953 SC 33 (supra) any observation which might go to support the proposition that a court of small causes will also be a court of exclusive jurisdiction. The Supreme Court was only pleased to observe that the revenue court and the administrative courts like land acquisition courts will also be courts of exclusive jurisdiction. However, it has nowhere observed in that decision that a Small Cause Court will also be a court of exclusive jurisdiction. In my opinion, and for the reasons given above, a court of small causes is not a court of exclusive jurisdiction but only a court of preferential jurisdiction. With great respect, I do not find it possible to agree with the observation made in AIR, 1967 All 125 (supra) that the court of small causes is a court of exclusive jurisdiction.
30. It was held in the case of Mt. Ladli Begum v. Sunder Lal, AIR 1959 All 764 by a Division Bench of this Court that a court exercising its jurisdiction under Section 33 of the U. P. Agriculturists' Relief Act is a court of exclusive jurisdiction, and therefore, its decision will operate as res judicata in a subsequent suit. It is not at all necessary for us to decide whether or not the decision in that case was correct, for the simple reason that the facts of that case will hardly apply to the facts of the present case.
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31. It was held in the case of Jagannath Bheraji v. Harisingh Kishanji, AIR 1969 Madhya Pradesh 56 that where a Small Cause Court exists for any particular area, a decision given in any suit triable by such Small Cause Court will be a nullity on the ground that the civil court lacked the initial jurisdiction. In my opinion, this does not, if I may say so with great respect, lay down the correct law.
32. It was held in the case of Newton Hickie v. Official Trustee of East Bengal, AIR 1954 Cal 506 that the decision given by a court of small causes in a matter over which it had jurisdiction will bar a subsequent suit relating to the same subject-matter.' The reason given was that unless that was done no finality would be attached to a matter decided by a court of small causes which, in respect of the former proceedings, was a court of competent jurisdiction. With great respect I am unable to agree with the principle decided in Newton Hickie's case, AIR 1954 Cal 506 (supra). I have already given my reasons why a court of small causes is not a court of exclusive jurisdiction but is merely a court of preferential jurisdiction."
41. Justice Sinha, in his separate but concurring judgment, held as under :
"38. Two points are involved for consideration in this case:
(1) Whether the Courts of Small causes created under the Provincial Small Cause Courts Act are courts of Page 27 of 141 C/SA/227/2018 JUDGMENT exclusive jurisdiction or they are courts of preferential jurisdiction?
(2) Whether a decision given by a Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit later filed in the court of Munsif for the recovery of arrears of rent for a different period and for ejectment. Point No. 1
39. My brother Khare, J. in his proposed judgment has already made a reference to the different provisions contained in the Provincial Small Cause Courts Act and to the relevant decisions to make out that a court of Small Causes is not a court of exclusive jurisdiction, but that it is only a court of preferential jurisdiction. Brother Tripathi, J. has, however, arrived at a contrary conclusion and reliance for that purpose has been placed by him particularly on Sections 15 and 16 of the Provincial Small Cause Courts Act. Section 15 reads thus:
"15. (1). A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.Page 28 of 141
C/SA/227/2018 JUDGMENT (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."
40. A perusal of the section, as reproduced above, would show that it is only an enabling provision and not a disabling provision. In other words, it only says that a Court of Small Causes shall have the jurisdiction to take cognizance of all suits of the nature specified in sub-clause (2) thereof. It does not say that no other court shall have jurisdiction to take cognizance of such suits. Therefore, so far as section 15 is concerned, in my view, it cannot form the basis of an argument that a Court of Small Causes is a court of exclusive jurisdiction.
41. Section 16 of the Provincial Small Cause Courts Act reads thus:
"16. 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 having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."Page 29 of 141
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42. Now, a perusal of Section 16 of the Provincial Small Cause Courts Act, as reproduced above, would show that it starts with the words "Save as expressly provided by this Act or by any other enactment for the time being in force".
The effect of the above words occurring in Section 16 is that a court other than a Court of Small Causes can also take cognizance of a suit cognizable by a Court of Small Causes if any provision contained in the Provincial Small Cause Courts Act or in any other enactment for the time being in force permits it. Further, as has been pointed out by my brother Khare, J., in places where no Courts of Small Causes exist, the ordinary civil courts shall have the jurisdiction to take cognizance of the suits specified in Section 15 (2) of the Act.
43. Aid was sought to be taken before us from the marginal note of Section 16 for the contention that the Courts of Small Causes are courts of exclusive jurisdiction. Now, it is a well entrenched principle of interpretation of Statutes that when the language of a section is plain and unambiguous and leads to a certain conclusion, it is not permissible to take the aid of the marginal notes of the section to draw a different conclusion. (See Legislation and Interpretation by Jagdish Swamp, I Edition, Pages 161-164, and Maxwell on Interpretation of Statutes, XII Edition, page 9).
44. Coming to the case law on the subject, I need not refer again to those Single Judge decisions which have already been noticed by my brothers Khare and Tripathi, JJ. in the judgments prepared by them. I would, however, add to that list the case of Smt. Anantamoni Dasi v. Bhola Nath, AIR Page 30 of 141 C/SA/227/2018 JUDGMENT 1941 Cal 104. In this case, a suit for rent had first been filed in the court of Small Causes. One of the contentions raised in that suit was whether the tenancy was governed by the Bengal Tenancy Act or by the Transfer of Property Act and the Court of Small Causes decided that it was governed by the Transfer of Property Act. In the subsequent suit, it was urged that the decision of the Court of Small Causes on that point operated (sic) (as a bar?-Ed.) on the general principles of res judicata . Aid was sought to be taken for the contention from a Privy Council case. The contention was negatived with the following observation:-
"But, obviously, those decisions cannot be interpreted to mean that the provisions of Section 11 may be flouted or overridden or that the prohibitions or reservations express or implied in that section may be ignored. To adopt such an interpretation would lead to the impossible position where one would have to hold that the provisions of the Code have been abrogated by judicial decision."
Further on, it was said:
"None of the decisions referred to by the learned advocate for the appellant has laid down that the rule of res judicata could be invoked in a case when the Court which tried the first suit had not the jurisdiction to try the second suit."Page 31 of 141
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45. For his conclusions, the learned Single Judge placed reliance on two decisions of the Privy Council in Gokul Mandar v. Pudmanund Singh, (1902) 29 Ind App 196 (PC) and Rajah Run Bahadur Singh v. Mt. Lachoo Koer, (1884) 12 Ind App 23 (PC).
46. It would thus appear that so far as Single Judge decisions are concerned, the consensus is in favour of the view that the Court of Small Causes is not a Court of exclusive jurisdiction and that the decision of that Court will not act as res judicata in a subsequent suit not cognizable by it.
47. As for the Bench decisions on this subject, it has been explicitly held in the case AIR 1959 Punj 420 that a Court of Small Causes is not a Court of exclusive jurisdiction, but that it is a Court of preferential jurisdiction.
48. Reference was, however, made before us to the Bench decision in case AIR 1954 Cal 506 in support of the contention that the decisions of a Court of Small Causes also act as res judicata . I have carefully gone through this case and I find that it is clearly distinguishable. In that case, the Court of Small Causes while giving its decision exercised a special jurisdiction under Section 16 of West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, which read as follows:-
"Notwithstanding anything contained in any other law, a suit by a landlord against a tenant in which recovery Page 32 of 141 C/SA/227/2018 JUDGMENT of possession of any premises to which this Act applies is claimed, shall lie to the Courts, as set out in Schedule B, and no other Court shall be competent to entertain or try such suit".
49. The underlined portion in Section 16, as reproduced above, would show that it imposed a blanket ban on the jurisdiction of every other court to take cognizance of suits specified therein. Section 16 of the Provincial Small Cause Courts Act is, however, differently worded. It starts with the words "Save as expressly provided by this Act or by any other enactment for the time being in force."
50. Because of the above words, occurring in Section 16 of the Provincial Small Cause Courts Act, the ban imposed by it on taking cognizance of the suits cognizable by the Courts other than Court of Small Causes is not as complete as that imposed by Section 16 of West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The observations made in the case of AIR 1954 Cal 506 (supra) cannot, therefore, be applicable to the case before us.
51. The only other Bench decision to which reference had been made before us in support of the contention that the Court of Small Causes is a court of exclusive jurisdiction is the case AIR 1969 Madh Pra 56. A perusal thereof reveals that for the conclusion that the Court of Small Causes is a Court of exclusive jurisdiction, the Hon'ble Judges deciding the case relied on two earlier decisions of their own High Page 33 of 141 C/SA/227/2018 JUDGMENT Court. No reference has been made to any of other decisions. With respect I confess my inability to agree with the view expressed by the Madhya Pradesh High Court in the said case.
52. Therefore, having given my careful thought to the relevant provisions of law and to the cases cited at the bar, I feel inclined to take the view that the Court of Small Causes is not a Court of exclusive jurisdiction. I am thus in total agreement with my brother Khare, J. on point No. 1. Point No. 2
53. The principle that when both the cases are suits, general principles of res judicata cannot be made applicable to the previous decision finds support, in the first instance, from the case AIR 1953 SC 33. After taking into account various decisions on the subject it was observed:-
"A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc."
54. At an early stage, while commenting upon the view taken by the High Court, it was observed by the Supreme Court:
"The learned Judges posed certain questions and then attempted to answer them in view of the limited Page 34 of 141 C/SA/227/2018 JUDGMENT provisions of Section 11, Civil P. C., which in terms apply only to suits, forgetting for the moment, if we may say so with respect, that the doctrine of res judicata is based on general principles of jurisprudence."
55. From the two observations of the Supreme Court reproduced above, a conclusion can be culled to the effect that in the view of the Supreme Court when both the proceedings are suits, it is only Section 11, Civil P. C. which can be made use of and that a plea of res judicata on general principles cannot be invoked in that situation, but, if one of the two proceedings is not a suit or if both the proceedings are not suits then a plea of res judicata can be successfully taken in respect of courts of exclusive or competent jurisdiction."
42. Justice Tripathi, however, by his separate dissenting judgment, took the view that the jurisdiction exercised by the Small Cause Courts is not only preferential but exclusive in nature. The findings recorded by His Lordship Justice Tripathi are as under :
"69. Courts of Small Causes are constituted in accordance with Section 5 of the Provincial Small Cause Courts Act of 1887. Section 15 of the Act provides that, (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. (2) Subject to the Page 35 of 141 C/SA/227/2018 JUDGMENT 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 a particular amount shall be cognizable by a Court of Small Causes.
Section 16 reads: "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 having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."
The marginal note of this section reads: "Exclusive jurisdiction of Courts of Small Causes.
The provisions of Section 16 are imperative in terms and exclude the jurisdiction of other Courts from the suits cognizable by a Court of Small Causes. In other words, as is evident from the marginal note to this section, the jurisdiction exercised by the Courts of Small Causes is exclusive in nature and there is no apparent reason why it should be held otherwise when the legislature has termed it as exclusive jurisdiction in unequivocal terms.
70. Section 17 of the Act provides a special procedure for such a Court and the provisions of the Code of Civil Procedure have been made applicable only in an amended form as indicated in the aforesaid section. It is true that Page 36 of 141 C/SA/227/2018 JUDGMENT under Section 28 of the Act, the Court of Small Causes shall be subject to the administrative control of the District Court and to the superintendence of the High Court but that does not derogate from the fact that it is not a link in the regular hierarchy of the Civil Courts as is evident from Section 33 of the Act which provides that:
"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 be deemed to be different Courts."
71. It is true that Section 35 of the Act provides for the continuance of proceedings of abolished Courts but that is not in derogation of the special nature of the jurisdiction exercised by the Small Cause Courts. I am, therefore, of opinion that the jurisdiction exercised by the Small Cause Courts is not only preferential but exclusive in nature.
72. On the second question posed above, also, there is a conflict of judicial opinion but in view of the latest decision of the Supreme Court it is not necessary to notice each case on the point.
73. In 1966 All LJ 481 : (AIR 1967 All 28) and in 1967 All LJ 32 : (AIR 1967 All 442), two Division Benches of this Court Page 37 of 141 C/SA/227/2018 JUDGMENT have successively held that, where both the proceedings are civil suits, the general principles of res judicata have no application and the case must be confined to the four corners of Section 11 of the Code of Civil Procedure.
74. In the case of AIR 1953 SC 33 it was, inter alia, observed:
"The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. This case was relied upon by a learned single Judge of this Court in 1966 All WR (HC) 782 :
(AIR 1967 All 125) for holding that a decision by the Court of Small Causes will operate as res judicata by the application of the general doctrine governing the principles of res judicata."Page 38 of 141
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75. In the case of Ramchandra Rao v. Ramachandra Rao, AIR 1922 PC 80, it was inter alia observed that, "the importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute. The principle which prevents the same case being twice litigated is of general application, and is not limited by the specific words of the Code in this respect."
76. In Janakirama Iyer's case, AIR 1962 SC 633 it was observed that:
"It has been fairly conceded that in terms Section 11 of the Code cannot apply because the present suit is filed by the creditors of the defendants 1 to 6 in their representative character and is conducted as a representative suit, under Order 1, Rule 8, and it cannot be said that defendants 1 to 6, who were plaintiffs in the earlier suit and the creditors who have brought the present suit, are the same parties or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata . We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion, Page 39 of 141 C/SA/227/2018 JUDGMENT therefore, there is no substance in the ground that the present suit is barred by res judicata."
77. In AIR 1965 SC 1153 the decision in Janakirama Iyer's case, AIR 1962 SC 633 (supra) was noticed and explained by Hon'ble Raghubar Dayal, J., who was delivering the majority judgment, and it was, inter alia, held that:
"The judgment of a Court of exclusive jurisdiction is to be treated as res judicata upon the same matter in another Court which will not be a Court having jurisdiction over that matter......"
and further that, "the provisions of Section 11, Civil P. C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial."
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78. In this case the minority opinion was expressed by Hon'ble Mr. Justice Subba Rao who held that the observations in Janakirama Iyer's case, AIR 1962 SC 633 that, "where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata . We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provision of Section 11 and no other", correctly represented the law on the subject. In view of the majority decision in the aforesaid case it is obvious that on the general principles of res judicata a previous decision on a matter in controversy, decided after full contest, will operate as res judicata in a subsequent regular suit irrespective of the fact whether the Court deciding the matter formerly had or had not been competent to decide the subsequent suit.
79. The dispute between the parties in the Court of Small Causes was about the rate of rent. That dispute had been determined by that Court in a fair manner. In the subsequent suit out of which the revision applications arise, the plaintiffs, while praying for ejectment of the defendants, claimed rent for the period preceding the second suit on a different rate. In these circumstances the question arose whether the decision given by the Judge Small Cause Court about the rate of the rent will operate as res judicata in the subsequent suit filed before the Munsif for arrears of rent Page 41 of 141 C/SA/227/2018 JUDGMENT and ejectment. In the light of the principle laid down by the Supreme Court in the case of Gulabchand Chhotalal, AIR 1965 SC 1153 (Supra), I am of opinion that the decision of the Judge Small Cause Court shall operate as res judicata on the question of the rate of rent both because it is a Court of exclusive jurisdiction and also on the basis of the general principles of res judicata."
43. Thus, the majority view in the Full Bench decision is that the initial jurisdiction to try all the suits of a civil nature vests in the civil court. However, that right can be restricted in two ways
- one, by excepting suits of which their cognizance is either expressly or impliedly barred, and, second, as between the civil courts of different grades by providing the pecuniary jurisdiction of the civil court of the lowest grade. A Small Cause Court is not a court of exclusive jurisdiction but is a court of preferential jurisdiction only and its decision will not bar any subsequent suits which the court of small causes was not competent to try. The majority view of the Full Bench of the Allahabad High Court fortifies the submissions of Mr.Soni, the learned counsel appearing for the original plaintiff, that the decree could not be termed as a nullity, or to put it in other words, the regular civil court did not lack inherent jurisdiction to try the money suit.
44. The above takes me now to look into one Full Bench decision of the Madhya Pradesh High Court in the case of Bhaiyalal Girdharilal Shrivastaya v. Tikaram Udaichand Jai, AIR 1970 Madhya Pradesh 237. The question referred to the Full Bench of the Madhya Pradesh High Court was as under :
Page 42 of 141C/SA/227/2018 JUDGMENT "...whether the decisions of a Division Bench of this Court reported in Jagannath v. Harisingh, 1968 Jab LJ 566 : (AIR 1969 Madh Pra 56) and Poonamchand v. Ramprasad, 1968 Jab LJ 583 : (AIR 1969 Madh Pra 44) laid down the correct law. According to the aforesaid decisions, where a suit of a small cause nature is instituted and tried as a regular suit in contravention of the provisions of Section 16 of the Provincial Small Cause Courts Act, the judgment so rendered in it is one which is without jurisdiction and nullity."
45. In the case before the Full Bench of the Madhya Pradesh High Court, the plaintiff - decree holder initiated proceedings for the execution of the decree. The defendant - judgment debtor raised an objection that the suit as framed, being one for payment of money, was exclusively triable by a court of small causes and that as it had been tried as a Regular Civil Suit by a court of Civil Judge, Class-II, in contravention of the provisions of Section 16 of the Provincial Small Cause Courts Act, its decree, being one without jurisdiction, was a nullity. The objection was overruled by the executing court; but, on appeal, the objection was upheld by the Additional District Judge. The plaintiff - decree holder came up in Second Appeal. Before the learned Single Judge, it was argued that where a civil court tries a suit of a small cause nature as a regular civil suit, i.e. as a long cause, its judgment and decree are not nullities and the two judgments which are referred to in the question framed by the reference court required reconsideration. Justice Naik, by his separate judgment, held as under :
Page 43 of 141C/SA/227/2018 JUDGMENT "10. Examining the reasons for the decision, we find that the decision mainly rests on an interpretation of Section 16 of the Provincial Small Cause Courts Act; and in the opinion of the learned Judges:
(i) that section was 'imperative in its terms';
(ii) it 'takes away jurisdiction of the regular Court to try a suit of small cause nature as an ordinary suit if there is at the time of the institution a Court of small Causes having jurisdiction to try the suit as a Small Cause Suit';
(iii) the words "shall not be tried by any other Court having jurisdiction within the local limits ..............."
mean that a regular Court is incompetent to try a suit cognizable by a Court of Small Causes having jurisdiction to try it;
(iv) the expression "Save as expressly provided by this Act or by any other enactment for the time being in force", with which Section 16 of the Provincial Small Cause Courts Act begins, only emphasizes the fact that if a regular Court by error tries a suit which is of small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits, then the proceedings of such Court are without jurisdiction and a nullity; and Page 44 of 141 C/SA/227/2018 JUDGMENT
(v) the observations in Jodha v. Maganlal, AIR 1930 Bom 80 that failure to comply with Section 16 was merely a defect in procedure were obiter."
11. The learned single Judge in support of his order of reference for a reconsideration of the aforesaid decisions says :-
(i) A contravention of Section 16 has so far not been held to invalidate a decree.
(ii) The failure to comply with Section 16 of the Provincial Small Cause Courts Act seems to be merely a defect in procedure in proceeding in a Court other than the Small Cause Court having jurisdiction to try the suit, and non-compliance with the provisions of that section would not, therefore, render the proceedings or the decree therein a nullity; and that this must be the correct view is apparent from the provisions of Sections 24(4), 102 and O. XLVI, R.7. Code of Civil Procedure.
(iii) The Division Bench decisions have not taken full note of the facts-
(a) that in Madhya Pradesh there are no Courts of Small Causes as such established under Section 5 of the Act, Page 45 of 141 C/SA/227/2018 JUDGMENT
(b) that in Madhya Pradesh Civil Courts have been invested with the powers to try suits of small cause nature under Section 9 of the Madhya Pradesh Civil Courts Act, and
(c) that Section 15 of the Madhya Pradesh Civil Courts Act may enable a District Judge by a Distribution Memo to overcome the inhibition contained in Section 16 of the Provincial Small Cause Courts Act, because that section in terms is again subject to the restriction 'Save as expressly provided by this Act or by any other enactment for the time being in force' which necessarily qualifies the operation of that section; and that the Madhya Pradesh Civil Courts Act is an 'any other enactment' within the meaning of Section 16 of the Provincial Small Cause Courts Act can hardly be denied.
12. We shall now examine the provisions of Section 16 of the Provincial Small Cause Courts Act to understand its true import and meaning in the context of the Act, the Code and the Madhya Pradesh Civil Courts Act.
13. Section 16 of the Provincial Small Cause Courts Act reads as follows:-
"Save as expressly provided by this Act or by any other enactment for the time being in force, a suit Page 46 of 141 C/SA/227/2018 JUDGMENT cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable." The section in terms says that-
(i) a suit cognizable by a Court of Small Causes,
(ii) Shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which suit is triable, (iii) save as expressly provided by this Act or by any other enactment for the time being in force.
14. In order to clearly understand the legislative intent underlying the aforesaid provision, we shall have to resort to the rules of statutory construction where-under we are enjoined to look not only at the phraseology of the section but also to consider its nature, its design and the consequences which would follow from construing it in one way or the other. In the words of Lord Campbell:
"No universal rule can be laid down for the Construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be Page 47 of 141 C/SA/227/2018 JUDGMENT construed." [Liverpool Borough Bank v. Turner, (1860) 29 LJ Ch 827].
15. The learned Judges of the Division Bench in Jagannath's case, 1968 Jab LJ 566 : (AIR 1969 Madhya Pradesh 56) (supra) have held that Section 16 of the Provincial Small Cause Courts Act is imperative in its terms and it takes away the jurisdiction of the regular Court to try a suit of a Small Cause nature as an ordinary suit if there is at the time of the institution a Court of Small Causes having jurisdiction to try the suit as a small cause suit. In coming to the aforesaid conclusion, the Division Bench considered only the phraseology of the section and does not appear to have considered the nature and object of the Act, and the consequences which would follow from construing it the one way or the other in the light of the provisions of Section 102 and Rr. 6 and 7 of O. XLVI of the Code of Civil Procedure.
16. It is settled law that an Act must be judged as a whole regard being had not only to the language in which it was clothed but also to the object sought to be achieved by its enactment. It must be construed to harmonise with the provisions of the other Acts which have a bearing on its construction and to avoid any mischievous results which may seem to follow from its construction one way or the other.
17. It is, no doubt, true that Section 16 of the Provincial Small Cause Courts Act uses the words 'shall not be tried' and 'shall' is ordinarily a command which has to be obeyed; but Page 48 of 141 C/SA/227/2018 JUDGMENT the legislatures have often used the words 'shall' and 'may' interchangeably necessitating the Courts to enquire into the legislative intent, which alone is the sure guide to statutory construction. Nevertheless, we must start with the presumption that the legislature intended to use the words in their natural meaning and then to determine, in the light of the other circumstances, whether their natural meaning was clearly contrary to the obvious intention of the legislature.
18. Having given the matter our careful consideration, we have come to the conclusion that the expression 'shall not be tried' in Section 16 of the Provincial Small Cause Courts Act is no doubt imperative in the sense that it directs the Courts not to try suits of a small cause nature in contravention of the provisions of that section, but it is not so imperative as to result in judgments and decrees in cases tried in contravention of its provisions being- rendered void or nullities. Our reasons for so holding may briefly be summarised as follows:
19. However, before doing so, we may first briefly refer to the provisions of Section 24 of the Code of Civil Procedure which are said to have a bearing on the construction of the aforesaid provision in the Provincial Small Cause Courts Act.
20. In our opinion, Section 24 of the Code is not of much help, because, even though the section provides for a transfer of a suit from a Court competent to try suit of a small cause nature to a Court which is not so competent, sub- section (4) of that section by a legal fiction makes the Page 49 of 141 C/SA/227/2018 JUDGMENT transferee Court a Court of Small Causes for the purposes of the trial of such a suit.
21. First as to the object and purpose of the Act, the Provincial Small Cause Courts Act is a complete code on matters of establishment, jurisdiction, practice and procedure of Small Cause Courts. It provides for the establishment of Courts of Small Causes and invests them with jurisdiction to try civil suits, except those of which cognizance is barred under Section 15(1) of the Act and the value of which does not exceed the pecuniary limit of their jurisdiction as provided in subsections. (1) and (2) of Section 15 of the Act, but no such Courts have been established in this State so far.
22. But, Section 9 of the Madhya Pradesh Civil Courts Act, however, empowers the High Court to invest Civil Courts within their jurisdiction with the powers of a Court of Small Causes. In pursuance of the aforesaid provision, the District Judges and the Additional District Judges have been invested with powers to try suits of a small cause nature, the value of which does not exceed Rs. 1,000/-, the Civil Judge Class I, with powers to try such suits the value of which does not exceed Rs. 500/-, and the Civil Judge, Class II, with powers to try such suits the value of which does not exceed Rs. 200/-.
23. Under Section 15 of the Madhya Pradesh Civil Courts Act, the District Judge has been empowered to direct by an order in writing that any civil business cognizable by it and Page 50 of 141 C/SA/227/2018 JUDGMENT the Courts under its control shall be distributed among those Courts in such manner as he thinks fit: provided that, except in so far as it may affect the exclusive jurisdiction of Court of Small Causes, or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under "this section shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction.
24. In Madhya Pradesh, we thus do not have Small Cause Courts established under Section 5 of the Provincial Small Cause Courts Act, but only Courts which have been invested with the powers of a Court of Small Causes under Section 9 of the Madhya Pradesh Civil Courts Act. But, under Section 33 of the Provincial Small Cause Courts Act, 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, be deemed to be different Courts. It has been further provided in Section 32 of the Act that so much of Chapters III and IV 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, Page 51 of 141 C/SA/227/2018 JUDGMENT
(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 orders 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, so that the provisions of Sections 15 and 16, which deal with jurisdiction of the Courts of Small Causes, become applicable to such Courts.
25. No assistance can, therefore, be derived from the fact that the Civil Courts exercising the powers of a Court of Small Causes under Section 9 of the Madhya Pradesh Civil Courts Act are not Courts of Small Causes established under Section 5 of the Provincial Small Cause Courts Act, because even to such Courts as we have the provisions of Section 16 of the Provincial Small Cause Courts Act are applicable.
26. Now, the object of the Act is to reduce the burden on the regular Civil Courts in respect of trials of suits of as minor character which are designated as small cause as defined in the Act and at the same time to give speedy and cheap Page 52 of 141 C/SA/227/2018 JUDGMENT justice to the litigant public in respect of such cases. With this end in view, the trial procedure is simplied : cases are at once posted for final disposal, the judgments are permitted to be short, and there is no right of appeal. Only one revision is provided to the High Court, which only empowers it to satisfy itself that the decree of the Court of Small Causes is according to law. As the cases are expected to be disposed of in one sitting and the judgments are permitted to be short without any right of appeal, the jurisdiction to try them is entrusted to experienced judges with due regard to their pecuniary valuation. Thus cases of a pecuniary value up to Rs. 200/- only are to be tried by a Civil Judge, Class II, up to Rs. 500/- by a Civil Judge, Class I, and up to Rs. 1,000/- by an Additional District Judge or the District Judge. It thus appears that when a small Cause is tried as a regular civil suit, which we may, for convenience, call 'a long cause' or a long cause is tried as a small cause, only the mode of the trial is altered which, at the worst, is only a defect in the procedure of the trial and cannot be held to be such an error of jurisdiction as would or should vitiate the trial in contradistinction to a trial of a cause by a coram non judice .
27. Secondly, the expression 'shall not be tried' is addressed to the Courts; and the general rule is that a statute, which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience, and neither public nor private rights will be injured or impaired thereby. The rule further is that if the statute is negative in form or if Page 53 of 141 C/SA/227/2018 JUDGMENT nothing is stated regarding the consequences or effect of non-compliance, the indication is all the stronger that it should not be considered mandatory: (see Crawford's 'The Construction of Statutes', para 266). In the instant case, the purpose of the prohibition is to secure uniformity in the observance of the Act and to effectively achieve the purpose of removing the congestion of such cases in the ordinary Civil Courts and to give speedier and cheaper justice to the litigant public. No doubt, the language of Section 16 of the Act would prevent any conscious and deliberate disregard of its provisions by any Court; but, if a long cause, through error or inadvertence, were tried as a small cause or vice versa , there are enough safeguards in the Act and in the Code of Civil Procedure to guard against any miscarriage of justice caused thereby; and consequently, in our opinion, the disregard of the provisions per se cannot be said to so injure or impair public or private rights as to render all judgments and decrees given in contravention of Section 16 of the Act per se null and void.
28. Thirdly, the Act does not prescribe the effect of non- compliance with the provisions of Section 16 of the Act. In this connection, we may usefully compare the phraseology of Section 15 of the Code which says:
"Every suit shall be instituted in the Court of the lowest grade competent to try it;"
and in respect of this section, it has been held that it prescribes only a rule of procedure and not of jurisdiction:
Page 54 of 141C/SA/227/2018 JUDGMENT Nidhilal v. Mazhar Husain, (1885) ILR 7 All 230 (FB) and Fazlur Rahim Abu Ahmed v. Dwarka Nath Chowdhry, (1903) ILR 30 Cal 453 (FB). In the words of Mahmood, J. in Nidhilal's case, (1885) ILR 7 All 230 (FB) 'the provision is no doubt imperative; but it is merely a matter of procedure and does not affect the question of jurisdiction'. On a parity of reasoning, we agree with the observations in AIR 1930 Bom 80 (supra), Parshotamdas v. Bhagubhai, AIR 1932 Bom 486 and Kollipara Seetapathy v. Kankipati Subbayya, (1910) ILR 33 Mad 323 that the non-observance of the provisions of Section 16 of the Act was merely a defect in procedure and not of jurisdiction. It is, no doubt, true that in Nidhilal's case, (1885) ILR 7 All 230 (FB), Mahmood, J. had contradistinguished the phraseology of Section 15 of the Code with Section 6 of the Small Cause Courts Act (Act No. XI of 1865) and held that the rule contained in Section 12 (which is akin to Section 16 of the present Act) was 'imperative upon the Courts' and affected their jurisdiction; but the observations were obiter and based on an interpretation of Section 12 of the then Provincial Small Cause Courts Act without reference to the provisions in the Code contained in Section 102 and Rules 6 and 7 of Order XLVI.
29. Fourthly, the Courts, whether, exercising jurisdiction as Courts of Small Causes or as Courts of general jurisdiction, always have the power to determine whether they have jurisdiction to try the cause submitted to them, and their determination on the point, however wrong, cannot be disturbed, except by taking recourse to the methods Page 55 of 141 C/SA/227/2018 JUDGMENT prescribed by law for setting matters right. In this connection, we may usefully recapitulate what is meant by the word 'jurisdiction' in relation to the jurisdiction of the Courts, whether regular or those which exercise the power of the Courts of Small, Causes.
30. Various attempts have been made to define the word 'jurisdiction'. According to West, J. in Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurkar, (1887) ILR 11 Bom 488, jurisdiction consists in taking cognisance of a case involving the determination of some jural relation, in ascertaining the essential points of it, and in pronouncing upon them. According to the order of reference in Sukhlal Sheikh v. Tarachand Ta, (1906) ILR 33 Cal 68, jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. In other words, by jurisdiction is meant the authority by which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision.
31. Jurisdiction of the Courts is sought to be restricted by the legislature in a variety of ways. It may be restricted with reference to the place of suing; it may be restricted with reference to the pecuniary valuation of suits; and it may be restricted with reference to their subject-matter. These aforesaid categories are often designated as territorial jurisdiction, pecuniary jurisdiction and jurisdiction according to the subject-matter of the suit. All the aforesaid categories Page 56 of 141 C/SA/227/2018 JUDGMENT have a bearing on the existence of jurisdiction; but existence of jurisdiction has to be distinguished from the exercise of jurisdiction which is a very different thing: Govind Prasad v. Pawankumar, ILR (1952) Nag 444 : (AIR 1952 Nag 278) (FB). Broadly speaking, an authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction over the person and the subject-matter, the decision of all other questions arising in the case is but an exercise of it. A jurisdiction to decide a cause is independent of the manner of its exercise, as also of correctness of the decision therein. The Judicial Committee of the Privy Council in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shiwappa, (1900) 27 Ind App 216 at p. 225 (PC) has said:
"A Court has jurisdiction to decide wrong as well as fight. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed."
32. Jurisdiction may again be considered in its two-fold aspect - one where a Court has inherent jurisdiction over the subject-matter of litigation, and the other where it has not such inherent jurisdiction. In the leading case of Ledgard v. Bull, (1886) 13 Ind App 134 at p. 145 (PC), the Judicial Committee of the Privy Council said:
"When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their Page 57 of 141 C/SA/227/2018 JUDGMENT mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit."
We shall have to bear in mind that it is in this sense of inherent lack of jurisdiction that the dictum of the Court that no amount of consent, acquiescence or waiver can confer jurisdiction where there is none, nor oust it where there is has to be understood.
33. Courts may broadly be classified as of two kinds - Courts of superior or, plenary jurisdiction, and Courts of inferior or limited jurisdiction, and it is settled law that while the Courts of plenary jurisdiction have always jurisdiction to decide whether they have jurisdiction to try and determine the cause submitted to them, the Courts of limited jurisdiction have no such power, because no tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction, and it would be contradiction in terms to create a tribunal with Page 58 of 141 C/SA/227/2018 JUDGMENT limited jurisdiction and unlimited power to determine such limits at its own will and pleasure. See Rex v. Shoreditch Assessment Committee, (1910) 2 KB 859.
34. Whether a Court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by the Court: Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621. An enquiry, however, whether the Court has jurisdiction in any particular case is not an exercise of jurisdiction over the case itself. It is really an investigation as to whether the conditions of cognisance are satisfied. Therefore, Court is always clothed with jurisdiction to see whether it has jurisdiction to try the cause submitted to it:
Bhatia Co-op. Housing Society Ltd. v. D. C. Patel, 1953 SCR 185 : (AIR 1953 SC 16).
35. We have already seen that the legislature has restricted jurisdiction of Courts in a variety of ways, namely, territorial, pecuniary and according to the subject-matter. It is also settled law that where a Court has no jurisdiction over a litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and can be declared to be void by every Court in which they may be presented: See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. There are, however, exceptions to the rule. One is contained in Section 21 of the Code of Civil Procedure, in regard to the territorial jurisdiction of Courts as to the place of suing; and another is contained in Section 11 of the Suits Valuation Act, in regard to the pecuniary jurisdiction of Page 59 of 141 C/SA/227/2018 JUDGMENT Courts. We shall have, therefore, to examine whether there is any such exception in respect of cases of small cause nature tried by the regular Civil Courts and vice versa . And, in our opinion, such an exception is provided in the provisions of Rules 6 and 7 of Order XLVI of the Code of Civil Procedure as we shall hereinafter show.
36. Fifthly, it has to be borne in mind that what are small causes is not always easy to determine. The question is often times one of difficulty on which there may be no clear guidance either from the Small Cause Courts Act or from decided cases.
37. We may here briefly refer to the jurisdiction of the Courts of Small Causes under the Provincial Small Cause Courts Act. The present Act (Act No. IX of 1887) is the successor of the Act No. 1 of 1865 and was passed on the repeal of the earlier Act. In regard to the jurisdiction of Small Cause Courts, the schemes of the two Acts are different. Under Section 6 of the old Act, certain specified matters were alone small causes, which could be tried under the Act; but under Section 15 of the present Act, suits falling within the pecuniary limits of Rs. 1,000/- are small causes, unless they or any of them are expressly excluded from the cognizance of Small Cause Courts by the Second Schedule of the Act.
38. A perusal of the Second Schedule would further show that it contains 44 Articles which are not capable of easier classification, and it is often times a matter of some doubt Page 60 of 141 C/SA/227/2018 JUDGMENT and difficulty to determine whether a particular cause falls within or outside the cognizance of the Courts of Small Causes.
39. Now, the principle is well settled that where enquiry into existence of facts is necessary to give jurisdiction to a Court, a party may waive such an enquiry. Similarly, where a party submits to the jurisdiction of a Court and takes a chance of getting decision in its favour, it cannot be permitted to challenge the jurisdiction of that Court after the decision has gone against it. Thus in National Coal Co. Ltd. v. L. P. Dave, AIR 1956 Pat 294, it has been held that where the want of jurisdiction has to depend upon proof of certain facts, then, if those facts have not been raised and proved, a party cannot be permitted to raise a plea of want of jurisdiction so as to render its decision void and ineffective. Also, as said earlier when a party submits to the jurisdiction of a Court and takes a chance of getting a decision in its favour, it cannot be permitted to challenge the jurisdiction of that Court after the decision has gone against it. In such a case, there is no question of estoppel creating jurisdiction where there is none but of preventing a party from raising a question.
40. Thus, if a litigant does not place before the Court all the facts namely all the real allegations of fact contained in the plaint as well as the revelant articles in Schedule II of the Act applicable to them, from which it could reasonably be ascertained, whether a suit is cognizable by a Court of Small Causes or is not so cognizable and the Court proceeds to Page 61 of 141 C/SA/227/2018 JUDGMENT adjudicate on the merits of dispute without expressly finding that the conditions of its cognizance are satisfied, he cannot later on complain that the Court has assumed jurisdiction which it did not possess, as he would be deemed to have waived his objection to an enquiry whether the conditions of the Court's cognizance were fully satisfied. This would be all the more so when it is realised that often times the parties may themselves be in doubt either through ignorance or through misinformation whether the suit was of a small cause nature or not and may not, therefore, raise any objection on the point at the trial.
41. Sixthly, as we have pointed out in paragraph 35 above, the provisions of Rules 6 and 7 of Order XLVI of the Code provide an exception to the rule that an error in the assumption of jurisdiction by a Court necessarily vitiates its judgment and decree.
42. Rule 6 and Rule 7 of Order XLVI of the Code read as follows:-
"R. 6: (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.Page 62 of 141
C/SA/227/2018 JUDGMENT (2) On receiving the record and statement the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit."
"R. 7. (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Courts with respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement, the High Court may make such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.
(4) A court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule."Page 63 of 141
C/SA/227/2018 JUDGMENT
43. The scheme of the two rules aforesaid appears to be that after a suit has been instituted in a Court which is otherwise competent to try it, and a doubt arises whether the suit is cognizable by a Court of Small Causes or not so cognizable, then,-
(i) If the doubt arises before the judgment and the doubt is of the Court, the Court may refer the case to the High Court which shall either
(a) order the referring Court to proceed with the trial of the suit presumably because, in its opinion, the referring Court was quite competent to try it, keeping in view the provisions of the Provincial Small Cause Courts Act, or
(b) order the referring Court to return the plaint for presentation to the proper Court and
(ii) If the doubt arises after judgment, then a power has been given to the District Court to make a reference to the High Court, either suo motu or on being moved to do so by any of the parties to the suit, subject to the condition that in the opinion of the District Court the trial Court has by erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so Page 64 of 141 C/SA/227/2018 JUDGMENT cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested. The exercise of the power has been made discretionary so that it may be exercised by the District Court only in suitable cases where ends of justice required it. This was presumably because the legislature did not intend any seeming error of jurisdiction to necessarily vitiate the judgment of the trial Court, whether exercising the power as a Court of Small Causes or otherwise, on the merits of the dispute-
(i) if the parties themselves were satisfied with the decision and did not seek to challenge it, and
(ii) if the District Court itself did not consider that the error of jurisdiction in trying a regular suit as a small cause suit or vice versa had resulted in any failure of justice.
But the exercise of the power was obligatory when the parties themselves or any of them challenged the decision on the ground of jurisdiction and the District Court considered that the trial Court had decided the question of jurisdiction erroneously: See Simson v. McMaster, (1890) ILR 13 Mad
344. It is significant to note that the power of reference is a limited one and can be exercised only in case where-
(a) the trial Court has given a decision on the question of its jurisdiction, and Page 65 of 141 C/SA/227/2018 JUDGMENT
(b) the District Court is of opinion that its decision on the question was erroneous:
Madan Gopal v. Bhagwan Das, (1889) ILR 11 All 304, Ramlal v. Kabul Singh, (1903) ILR 25 All 135, Oor Nayakkan v. Arunachala Chettiar, AIR 1948 Mad 245 and Prabhakar Bhaskar v. Kashiram Vithoba, ILR (1958) Bom 340 : (AIR 1958 Bom 201). The last named case is the case of an ex parte decree which had been put into execution and in which a reference under Rule 7 of Order XLVI was refused on the ground that the question of jurisdiction had neither been raised nor decided by the trial Court passing the ex parte decree.
44. Examining the provisions of Rule 6 once again it is pertinent to note that under the Rule, where the trial Court itself is in doubt as to whether a suit is cognizable by a Court of Small Causes or not, it may refer the question to the High Court for decision. Suppose the High Court erroneously decides that a suit is not cognizable by a small cause nature, it cannot be suggested that if ever it is found that the suit was really of a small cause nature and had been erroneously tried as a long cause suit in contravention of Section 16, the judgment and decree rendered therein become nullities and can be completely ignored. The objection would be barred on the principles of res judicata .
Does it make any difference if the question has not been expressly decided? The determination that a Court has Page 66 of 141 C/SA/227/2018 JUDGMENT jurisdiction to try a particular cause may be expressed or implied; and as this enquiry by a Court that conditions of its cognizance are satisfied must necessarily precede the determination of the cause on merits, we must necessarily imply such a determination when a Court proceeds to try a cause submitted to it on merits. Thus, in all cases, where it is found that a Court has proceeded to try a cause on merits in contravention of Section 16 of the Act, it must be presumed that it was due to an erroneous decision by it on the question of its initial assumption of jurisdiction which had to be corrected only by the methods prescribed by law. We see no reason why the objection should not be held barred on the principle of constructive res judicata . Any mistake as to erroneous assumption of jurisdiction in contravention of Section 16 of the Act could certainly be corrected in appropriate proceedings as provided by law, but such a mistake could not result in rendering judgments and decrees in cases tried in contravention of Section 16 of the Act as nullities.
45. Now examining the provisions of Rule 7, we find that the intention of the legislature appears to be that where, the question of jurisdiction was neither raised nor decided by the trial Court, the reference was incompetent; and where the judgment and decree of the Court were not challenged in an appeal or in revision, as prescribed by law, the judgment and decree, howsoever erroneous, cannot be disturbed. Thus, in (1903) ILR 25 All 135, where no question as to the Court's jurisdiction was raised by either party, and the Court of Small Causes proceeded to judgment as if the case was Page 67 of 141 C/SA/227/2018 JUDGMENT properly cognizable by it, the High Court refused to interfere upon a reference made by the District Judge purporting to be made under Sec. 646-B of the Code of Civil Procedure. The learned Judges said:
"The defendant lost his case, and then, for the first time, had it suggested to him that there was a plea which he might have raised before a Court of Small Causes with effect, and thereupon tried to get the decision reversed by an application to the District Judge. We are not in favour of assisting parties to set aside decrees upon points which they did not raise before the Court which tried the matters in issue, and of which they gave no notice to the opposite party. The plea of want of jurisdiction could have been met by facts showing that the want alleged did not exist, and if the other side had had notice, it might have shown that the alleged act was an act of want on mischief, or some similar kind which would have rebutted the plea of want of jurisdiction."
No doubt, the remedies under Rules 6 and 7 of Order XLVI of the Code are in addition to the remedies prescribed by Sections 96 and 115 of the Code against judgments and decrees of the Civil Courts exercising ordinary civil jurisdiction and by Section 25 of the Provincial Small Cause Courts Act against judgments and decrees of the Civil Courts exercising small cause jurisdiction. But, even when entertaining a revision under Section 115 of the Code, the Page 68 of 141 C/SA/227/2018 JUDGMENT provisions of Rule 7 of Order XLVI of the Code should be borne in mind.
46. In Suresh Chunder Maitra v. Kristo Rangini Dasi, (1894) ILR 21 Cal 249 (supra), a suit which was cognizable by a Court of Small Causes was filed in a Munsiff s Court and tried as a long cause. The Munsiff, without any objection being raised, tried the suit and dismissed it. The plaintiff appealed in the Court of the District Judge where also no objection to the trial by the Munsiff was raised. The District Judge allowed the appeal, set aside the judgment of the Munsiff and decreed the plaintiff's suit. In the second appeal, in answer to the objection by the plaintiff that no second appeal lay, the defendant contended that the Munsiff had no jurisdiction to try the suit which was of a small cause nature, the Division Bench said:
"Section 16 of Act 9 of 1887 of the Provincial Small Courts Act, declares that a suit cognizable by a Small Cause Court shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. So that under that section the suit could not have been tried by the ordinary Courts as it has been. But Act VII of 1888, Section 60, has introduced Section 646-B (now Rule 7 of Order XLVI) into the Code of Civil Procedure which modifies the operation of Section 16 of the Small Cause Courts Act, and introduces an entirely different principle ............... so Page 69 of 141 C/SA/227/2018 JUDGMENT that, as we read the law, on a case so submitted the High Court has full power to consider the matter of jurisdiction or to deal with the case on the merits, so as to do substantial justice without necessarily putting the parties to the expense of a fresh trial. Unless this is the intention of the Legislature, the enactment of Section 646-B seems to be without any meaning or object. Consequently, Section 646-B must be read with Section 16 of the Provincial Small Cause Courts Act so as to modify its full effect in a case wrongly tried by an ordinary Civil Court and taken on appeal to the District Court. In this view of the law, we are of opinion that the parties having in both the Lower Courts submitted to the jurisdiction of the ordinary Courts, it is not competent to either of them on second appeal to plead the want of jurisdiction in those Courts so as to render all proceedings taken in the suit void. The defendant, however, contends that he is entitled to a second appeal, and to ask for judgment on points other than that of the special jurisdiction. But the suit is of the nature cognizable by a Court of Small Causes, and the amount of the subject-matter does not exceed five hundred rupees, so that a second appeal is barred by Section 586 of the Code of Civil Procedure."
47. In Parmeshwaran Nambudiri v. Vishnu Embrandri, (1904) ILR 27 Mad 478, a case of a small cause nature was tried as a regular suit and decreed in plaintiff's favour. The defendant, who had raised no objection to the mode of trial, preferred a regular appeal to the District Court making no Page 70 of 141 C/SA/227/2018 JUDGMENT reference to the question of jurisdiction. The District Judge dismissed the appeal. On the question of jurisdiction being raised for the first time in a revision before the High Court, the Division Bench consisting of Sir Subramania Ayyar, Officiating Chief Justice, and Benson, J. said:
"Section 16 of the Provincial Small Cause Courts Act must be read along with Section 646-B of the Civil Procedure Code. The latter section gives the High Court a discretion to pass such orders as it thinks proper in cases referred for its orders under that section and, such cases include a case like the present where the small cause suit has been irregularly tried by an ordinary Civil Court. The obvious object of the section is to enable the High Court to pass such order as the justice of the case requires without being compelled to decide the case solely with reference to jurisdiction, and thus perhaps put the parties to the expenses and trouble of fruitlessly litigating the same question again before the very Judge, sitting as a Small Cause Court, who had already tried the case on the ordinary civil side, and with the greater formality thereby required and with the safeguard of an appeal.
Though the present case comes before us under Section 622, Civil Procedure Code, it seems but reasonable that the principle of the express provision in Section 646-B should be followed in the exercise of the discretion allowed by Section 622, at least in cases like Page 71 of 141 C/SA/227/2018 JUDGMENT the present where the petitioner made no objection to the trial in the Court of First instance and raises the objection for the first time in this Court."
48. In (1910) ILR 33 Mad 323 (supra), a case of a small cause nature was tried as a regular suit and decreed in favour of the plaintiff by the District Munsiff. On appeal to the Sub-Judge, the decree was reversed. When the plaintiff filed an application in the High Court for revising the said order, contending that the order of the Sub-Judge on appeal was without jurisdiction as the suit was of a small cause nature in which no appeal lay to the District Judge, the learned single Judge declined to interfere for the reason that the plaintiff himself had instituted the suit on the original side and would not, therefore, be heard to complain that the defendant had filed an appeal against the decree in the original suit. On appeal to a Division Bench under the Letters Patent, Sankaran Nair and Abdur Rahim, JJ. doubted the correctness of the decision in (1904) ILR 27 Mad 478 (supra) so far as the appellate decision was concerned and referred the question to a Full Bench which said:
"We are unable to agree with the view taken by the learned Judges in (1904) ILR 27 Mad 478, as regards the appellate decision in that case. As the decision of the appellate Court in the case before us was made without jurisdiction, we think this Court is bound to set it aside. As regards the decision of the Appellate Court, we think the cases Ramasamy Chettiar v. R. G. Orr, Page 72 of 141 C/SA/227/2018 JUDGMENT ILR 26 Mad 176 and Shankarbhai v. Somabhai, (1902) ILR 25 Bom 417 were rightly decided."
With due deference to the learned Judges of the Full Bench, we see no reason to distinguish between the judgments of the trial Court and the Appellate Court, in this respect, nor do we see the necessity to hold that the appellate judgment must necessarily be set aside as one without jurisdiction. If a small cause suit is tried as regular suit, it is open to one appeal, though a second appeal is barred because of Section 102 of the Code. The first appeal, cannot, therefore, be held to be one without jurisdiction. We also agree with Sankaran Nair, J. in his order of reference that the District Court referred to in Rule 7 of Order XLVI is not necessarily the appellate Court to which an appeal from the judgment and decree of a small cause case tried regularly is preferred; but, even so, we see no reason to hold that the appeal is one without jurisdiction. In our opinion, if the case, which is triable by a Court of Small Causes, is tried regularly, one appeal shall lie from such judgment; and if a case, which is triable by a regular Civil Court, is tried by a Court of Small Causes, it shall be open to a revision under Section 25 of the Provincial Small Cause Courts Act, because the right of appeal or revision arises from what a court actually does and not from what it ought to have done. In our opinion, (1901) ILR 25 Bom 417 and (1902) ILR 26 Mad 176, which hold to the contrary, are not correctly decided.
49. That this has been the view of this Court is amply clear from the decision in Kamruddin v. Mt. Indrani, 19 Nag LR Page 73 of 141 C/SA/227/2018 JUDGMENT 179 : (AIR 1924 Nag 17), where a suit cognizable by a Court of Small Causes had been tried by a Munsiff and decreed in favour of the plaintiff. The defendant appealed to the District Judge without reference to the question of jurisdiction, who reversed the decree of the Munsiff. On a revision under Section 115 of the Code to the Court of the Judicial Commissioner, Baker, the Officiating J. C. held:
"In this case the parties have had a full trial before the Munsiff and an appeal to the District Judge without objection on the point of his jurisdiction, and I respectfully agree with the view of the Allahabad and Calcutta High Courts. I, therefore, decline to interfere and dismiss the application with costs."
The Allahabad and Calcutta view referred to above are those of (1903) ILR 25 All 135 and (1894) ILR 21 Cal 249. The decisions in (1901) ILR 25 Bom 417 and (1910) ILR 33 Mad 323 (supra) were distinguished on the ground that in those cases, the trial Judges having Small Cause Court jurisdiction, had tried the suits on the regular side and as, in the opinion of those courts, the character of the suits was not altered by the mode in which they were tried, the judgments and decrees in those cases must be held to be judgments and decrees of a Court of Small Causes which were not liable to appeal.
50. In our opinion, the distinction is not well founded. Under Section 33 of the Act, a Court when trying a cause as a long Page 74 of 141 C/SA/227/2018 JUDGMENT cause and the same Court trying a cause as a small cause are different Courts, so that no distinction can be made on the ground that when the same Court has both the jurisdictions, an appeal is not competent.
51. In AIR 1930 Bom 80 (supra), a case triable by a Court of Small Causes was tried as a long cause by the Joint Subordinate Judge. The claim was decreed; but, on appeal, the District Court reversed the decree. On a revision under Section 115 of the Code of Civil Procedure, the learned Judge set aside both the decrees - the appellate decree on the authority of,(1910) ILR 33 Mad 323 (supra), (1904) ILR 27 Mad 478 (supra) and Abdul Majid v. Bidyadhar Saran Das, ILR 39 All 101 : (AIR 1917 All 159) and the decree of the trial Court on the ground that the trial of the suit as an ordinary suit had prejudiced the parties because the Joint Subordinate Judge was not a Judge of sufficient seniority to be entrusted with Small Cause Court's powers and, therefore, not a proper tribunal for the trial of the suit. In our opinion, with respect, the reasoning of the judgment is faulty and we cannot agree with the conclusions reached in it. In the first place, the decision is contrary to 19 Nag LR 179 :
(AIR 1924 Nag 17) (supra) with which we substantially agree; and, in the second place, we do not see how and why an appeal would not lie against the judgment and decree in a small cause suit tried as a long cause by a Judge who had not both the jurisdictions, the basis on which the learned Officiating Judicial Commissioner had distinguished the case in (1910) ILR 33 Mad 323 and (1901) ILR 25 Bom 417 (supra) in 19 Nag LR 179 : (AIR 1924 Nag 17) (supra).Page 75 of 141
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52. In Rajjupuri v. Deva, 30 Nag LR 133 : (AIR 1933 Nag
221) in a revision under Section 25 of the Provincial Small Cause Courts Act, Grille, A. J. C. held that before seeking his remedy in the High Court, it was incumbent on a person, whose plaint had been returned for presentation to the proper Court, both by the Court of Small Causes and that of the Subordinate Judge, to exhaust the remedies open to him by making an application to the District Judge under Order XLVI, Rule 7, of the Civil Procedure Code. This again shows that a challenge to the jurisdiction of a Court on the allegation that it has acted or failed to act in conformity with the provisions of Section 16 of the Provincial Small Cause Courts Act must first be made under the provisions of Rule 7 of Order XLVI of the Code of Civil Procedure.
53. In U. K. Seal v. Aramugam Chettyar, AIR 1938 Rang 35, the question arose whether the judgment and decree of a Township Court, who had tried a cause of a small cause nature as a long cause on its regular side even though it had jurisdiction to try it as a small cause, were a nullity.
Repelling the contention, Dunkley, J., said:-
"Order 46, Rule 7 of the Code makes it clear that where a suit which is cognizable by a Court of Small Causes has been tried by a Court which is not a Small Cause Court, in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, then the only procedure which may be taken to correct that error is for a party to the suit to require the District Page 76 of 141 C/SA/227/2018 JUDGMENT Court to make a reference to the High Court, and upon that reference, the High Court may make such order in the case as it thinks fit. This provision clearly shows that the proceedings of the Regular Court, although the suit has been tried by it in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, are by no means a nullity, but may be upheld it the High Court considers that substantial justice has been done. This is, the view which was taken by Nanavutty, J. in ILR 56 Bom 387 at P. 393 : (AIR 1932 Bom 486 at pp. 488-89) with which I respectfully agree. Moreover, whether the present application in revision be looked upon, as an application under Section 25, Provincial Small Cause Courts Act, or under Section 115, Civil Procedure Code, the power of this Court to interfere to reverse or vary the decree of the original Court is discretionary, and in regard to this matter, I desire to remark that if the contention which has been put forward on behalf of the applicant is correct, then it would appear that the present application must have been made under Section 115, Civil Procedure Code, although it purports to have been brought under Section 25, Provincial Small Cause Courts Act. Learned counsel for the applicant is unable to contend that his client has been prejudiced in any way by the fact that the suit has been tried as a regular suit instead of as a small cause and it would scarcely be possible for either party to contend as in the regular trial they have had a better opportunity of placing their respective cases before the Court, and Page 77 of 141 C/SA/227/2018 JUDGMENT also they have obtained a full record of the evidence and considered judgment. Consequently, I should be unable to hold that it was a proper exercise of the discretion which is vested in me to interfere in this case on the sole ground that the Township Court tried the suit without jurisdiction, when it has to be admitted that neither party has been prejudiced by that action."
54. It is further significant to note that on a reference being made to the High Court, it has been given the power to pass such order in the case as it thinks fit, which means that the legislature did not intend any error of jurisdiction in this behalf by the trial Court to necessarily vitiate its judgment and decree as void or as nullities. Because, if the trial of a suit in contravention of Section 16 of the Provincial Small Cause Courts Act was to necessarily result in a void judgment and a void decree as passed without jurisdiction, there was no point, in the first place, in giving discretionary power to the District Court to make a reference or not and, in the second place, in empowering the High Court on a reference being made to pass such orders as it thinks fit. Any Court where the question of their legal validity arose could have under its general jurisdiction declared them as void and nullities. Thus, it has been held in AIR 1915 Cal 619, (1894) ILR 21 Cal 249, Jaduni Pande v. Sheonandan Pande, ILR 11 Pat 690 : (AIR 1933 Pat 31) and Sawnkey Mian v. Zabunnissa Begum, 1957-1 Andh WR 261 that in a reference under the aforesaid rule, the High Court is not bound to set aside the proceedings in all cases as null and void being without jurisdiction, but has been specifically Page 78 of 141 C/SA/227/2018 JUDGMENT empowered to go into the merits of the case so as to do substantial justice, without unnecessarily putting the parties to the expenses of a fresh full trial de novo , on such a technical plea of jurisdiction.
55. In our opinion, if a contravention of Section 16 of the Act was a defect of jurisdiction, power could not have been given to the High Court on a reference under Rule 7 of Order XLVI of the Code to pass such orders in respect of it as it thought fit. If the judgments and decrees were nullities for want of jurisdiction, all that had to be done or could be done was to declare them null and void. The want of jurisdiction, if there was one, could neither be ignored nor condoned; but as the Legislature did provide in Rule 7 of Order XLVI of the Code that it could be so ignored or condoned, if substantial justice had been done, it would only mean that a contravention of Section 16 of the Act was not intended to be a defect of jurisdiction vitiating the trial and rendering the judgments and decrees nullities.
56. Lastly, the provisions of Sec. 102 of the Code of Civil Procedure also support the view we have taken. Section 102 of the Code says:-
"No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed one thousand rupees."Page 79 of 141
C/SA/227/2018 JUDGMENT The provision can have no reference to proceedings under the Provincial Small Cause Courts Act because Section 27 of the Provincial Small Cause Courts Act provides that the judgment and decrees of Courts of Small Causes are final and they are only subject to a revision to the High Court under Section 25 of the Act, so that no question of a second appeal can arise from a judgment and decree of a Court of Small Causes. But the provisions can have reference to following four situations arising out of trial of suits of Small Cause nature by regular Courts as long causes. The first is where a case of the nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit, because the question was not raised at the trial. The second is where it is so tried because, though the question was raised, it was erroneously decided by the Court or by the High Court on a reference under Order 46, Rule 6 of the Code of Civil Procedure. The third is where a case is sent to a regular Civil Court for a trial in a regular way as a long cause under Section 23 of the Provincial Small Cause Courts Act. And the fourth is where it is so tried because there are no Small Cause Courts or Courts invested with the powers of Small Cause Courts for the local area so that there is no option but to try them as regular suits or as long causes.
57. The fourth situation would very seldom arise and if the provisions were confined to such cases, it would practically become a dead letter. It is also significant that its operation had so far not been confined to such cases only. Similarly, Page 80 of 141 C/SA/227/2018 JUDGMENT when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit because of Section 23 of the Act, the suit remains a suit of the nature cognizable by a Court of Small Causes and as such governed by the provisions of Section 102 of the Code. See Sk. Fannu v. Ali Mia, AIR 1943 Cal 464. But if the Section applies to the first two situations also, as we think that it does, then it would be anomalous to say that such cases do not admit of a second appeal, when on the view that their trial was without jurisdiction and as such a nullity, no appeal or revision of any kind was permissible. It, therefore, appears more appropriate to hold that when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit by a competent Court for any reason, whatsoever, either through inadvertence of error or because of the provisions of Section 23 of the Act or through the absence of a Court of Small Causes for that local area, its judgment and decree is not a nullity but that it would not admit of a second appeal so that by implication, it would be subject to one appeal only.
58. Thus, interpreting the Section, it has been held that if, instead of trying a small cause suit in a summary way, it is tried in the ordinary manner as a regular suit, the mistake will not alter the character of the suit which will nevertheless be a suit of the nature cognizable by a Court of Small Causes and as such subject to the limitations of Section 102 of the Code and that therefore, no decree or order in such a suit will admit of a second appeal. See Bapu Suryabhan v. Kisan, AIR 1928 Nag 136(1), Ganpat Laxman v. Nathu, AIR 1934 Nag 121; Deokali v. Abhram Bali, AIR 1931 Oudh 49;
Page 81 of 141C/SA/227/2018 JUDGMENT Samir Khan v. Basi Ram, AIR 1925 All 821; Bansi Lal v. Chairman, Town Area Committee, Saidpur, AIR 1941 All 144; Balwantrao Naik v. Biswanath Missir, AIR 1945 Pat 417; Naranappa v. Venkataraman, AIR 1917 Mad 897; Subbiah v. Rajah of Venkatagiri, AIR 1922 Mad 352 and Chidambara Thevar v. Subbaravar, AIR 1926 Mad 623.
59. We, however, do not agree with the view taken by some Courts that such cases will not admit even of one appeal nor with the view that such cases will only admit of a civil revision under the provisions of Section 25 of the Provincial Small Cause Courts Act. The right of a litigant to go up in appeal or revision depends on what the Court actually does and not on what it ought to have done. So, when a suit of a nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit, it is futile to enquire if that Court had powers of a Court of Small Cause Court also because when exercising the powers of a Court of Small Causes, it is a distinct and a separate Court in view of the provisions of Section 33 of the Provincial Small Cause Courts Act. If it has tried a suit of a nature cognizable by a Small Cause Court as a regular suit, the case would be governed by the incidents of a regular suit subject to the limitations contained in Section 102 of the Code, namely, that such a case shall not admit of a second appeal. But, in our opinion, it would not be correct to hold that such a judgment and decree should none-the-less be held to be the judgment and decree of a competent Small Cause Court which shall not admit of any appeal whatsoever.
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60. In AIR 1934 Nag 121, Staples, A. J. C. said-
"The applicant Ganpat brought a suit for damages in the Court of the Subordinate Judge, Second Class, Amraoti. His suit was dismissed and he then preferred an appeal to the Additional District Judge.
The Additional District Judge held that the suit was one that was cognizable by a Court of Small Causes, that the appeal was, therefore, incompetent and that a reference could be made to this Court under O. 46, R.
7. He, therefore, referred the case. The case is similar to that in AIR 1924 Nag 17 ..................I can find however no reported decision to the effect that a suit cognizable by a Small Cause Court, which has been tried against the provisions of Section 16, Provincial Small Cause Courts Act, as an ordinary suit by a Judge who is not invested with Small Cause Court powers, the parties to the suit having raised no objection to the trial, should be considered as a Small Cause suit, and that no appeal would lie from the decision. The decision in AIR 1924 Nag 17 would appear to take the contrary view and I am also of opinion that in a case of this kind the matter would fall under Section 102, Civil P. C., and that there will be an appeal against the decree of the trial Court, but no second appeal where the amount or value of the subject-matter of the original suit does not exceed Rs.
500..............."Page 83 of 141
C/SA/227/2018 JUDGMENT The aforesaid decision as well as the decision in Bapu Suryabhan v. Kisan, AIR 1928 Nag 136 were doubted by Chaturvedi, J. in Abdeali v. Fidahussain, AIR 1957 Madh Bha 122 who was of opinion that where a Court who tries a case of a Small Cause nature according to the ordinary procedure, is invested with the powers of a Court of Small Causes, he must be held to have dealt with the case under that jurisdiction even though he was not quite alive to it at the time but where he was not so invested and there was another Judge at the station invested with such powers, his orders were nullity and had to be set aside. In our opinion, there was no basis for such a distinction and we do not agree with him that in the first class of cases the judgments and decrees should be treated as judgments and decrees of a Court of Small Causes and in the latter case nullities being without inherent jurisdiction.
61. There is, on the other hand, the decision of Krishnan, J. (C.R. 377 of 1966 dated 27-3-1967) that there was no inherent lack of jurisdiction if a Court which is otherwise competent tries a suit in breach of Section 16 of the Provincial Small Cause Courts Act and that if the point of jurisdiction is not raised by the defendant in the Court below, he cannot be permitted to raise the objection for the first time in revision. We agree with him that there was no inherent lack of jurisdiction if a Court which is otherwise competent tries a suit in breach of Section 16 and it will be a question to be decided in each case whether the applicant should be Page 84 of 141 C/SA/227/2018 JUDGMENT permitted under the facts and circumstances of the case to raise the question of jurisdiction for the first time in a revision in view of the provisions of O. 46, Rr. 6 and 7 of the Code of Civil Procedure. We are however clearly of the opinion that the provisions of Section 102 of the Code are inconsistent with the view that the judgments and decrees rendered by a Court in contravention of Section 16 of the Act are nullities.
62. We are, therefore, of opinion that the decisions in 1968 Jab LJ 566 : (AIR 1969 Madhya Pradesh 56) and 1968 Jab LJ 583 : (AIR 1969 Madhya Pradesh 44) (supra) do not lay down the correct law and are erroneous. In our opinion, the judgments and decrees passed in contravention of Section 16 of the Provincial Small Cause Courts Act are not null and void as having been passed without jurisdiction. On the other hand, they are good and effective, until set aside in accordance with law.
63. We may, however, mention that it was unfortunate that the question whether the suit giving rise to the execution proceedings was really cognizable by a Court of Small Causes has never so far been critically examined by any Court. It has all along been assumed that it was a case which was cognizable by a Court of Small Causes. A perusal of the plaint, however, shows that it was a suit by a vendor for the recovery of the balance of his sale consideration due on the sale of immovable property and for compelling the vendee to fulfil his part of the contract by satisfying the future taccavi liability of the plaintiff by paying the Page 85 of 141 C/SA/227/2018 JUDGMENT instalments in respect of it to the State Government as and when they fell due, and was as such not cognizable by a Court of Small Causes because of the provisions of Art. 15 of Schedule II of the Provincial Small Cause Courts Act. The question has, however, not been tried so far, and we do not consider it necessary to pronounce on it as it is not a question referred to us. We, however, note the fact and leave it for the consideration of the learned referring Judge."
46. Hon'ble Justice Tare, in his separate but concurring judgment, held as under :
"88. Although, originally I proposed to concur with the opinion of my brother, Naik, J., on going through the opinion of my brother, Shiv Dayal, J., I think it necessary to express my own opinion by giving reasons as to why agreeing with the conclusion of Naik, J. and some observations of Shiv Dayal, J. I am unable to agree with certain observations made by my learned brothers in their separate opinions.
89. At the outset it may be observed that the present suit was not at all a suit triable by a Court of Small Causes, nor could it be said to be a suit of the nature of small causes, as has been rightly observed by Naik, J. in the concluding portion of his opinion. As, however, a reference was made by the learned Single Judge to this Full Bench probably without recording a finding whether the present suit was triable by a regular Court or by a Small Cause Court, it is necessary for the Full Bench to answer the reference and record its opinion, as the two Division Bench decisions of this Court in Page 86 of 141 C/SA/227/2018 JUDGMENT 1968 Jab LJ 566 : (AIR 1969 Madhya Pradesh 56) and in 1968 Jab LJ 583 : (AIR 1969 Madhya Pradesh 44) have created a lot of confusion and the decrees passed by the regular Courts in numerous cases have been rendered null and void on account of those two decisions.
90. The controversy arose initially when S. B. Sen, J. in Mukund v. Firm Kashilal, Civil Revn. No. 178 of 1965, D/- 29-9-1965 (MP) expressed the view that a decree passed in contravention of Section 16 of the Provincial Small Cause Courts Act, was a nullity, which could be challenged in execution. The contrary opinion was expressed by Krishnan, J. in Manakchand v. Rajmal, Civil Revn. No. 377 of 1966, D/-29-3-1967 (MP) wherein he expressed the opinion that the trial of a case in contravention of Section 16 of the Provincial Small Cause Courts Act would be a matter relating to procedure and not relating to jurisdiction. Therefore, according to Krishnan, J. the decree passed would not be a nullity and the same could not be challenged in execution proceedings, if no objection be raised during the trial of the suit. It was on account of that conflict that the question was referred by Nevaskar, J. to a larger Bench in 1968 Jab LJ 566 : (AIR 1969 Madh Pra 56) (supra) and by Singh, J. in 1968 Jab LJ 583 : (AIR 1969 Madh Pra 44) (supra), and the Division Bench in both those cases, presided over by Dixit, C. J. and S. B. Sen, J., answered the reference by holding that such decrees would be nullities, which could be challenged not only in execution proceedings, but also in collateral proceedings, on the principle laid down by Their Lordships of the Supreme Court in AIR 1954 SC 340.Page 87 of 141
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91. The relevant provisions have been reproduced by my learned brothers, Naik and Shiv Dayal, JJ. in their separate opinions. Therefore, I find it unnecessary to reproduce all those provisions. Section 16 of the Act which relates to exclusion of jurisdiction of other Courts provides as follows:-
"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 having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."
My Brother, Naik, J. has given eight reasons for holding that a trial held in contravention of the said section would not affect the initial jurisdiction of a Civil Court to try a suit of civil nature and therefore the same would not be a nullity. Therefore, Naik, J. has opined that if no objection be raised during trial, the same cannot be raised in execution proceedings and the decree can in no case be challenged in collateral proceedings and the principle laid down by their Lordships of the Supreme Court in AIR 1954 SC 340 (supra) would not be attracted. On the other hand, mv brother, Shiv Dayal, J. has expressed the opinion that as Section 16 provides for the exclusive jurisdiction of Small Cause Courts thereby excluding jurisdiction of the ordinary Courts, a trial in contravention of the said section would relate to a question of jurisdiction and as the regular Court would be lacking in Page 88 of 141 C/SA/227/2018 JUDGMENT initial jurisdiction, its decree in contravention of the said section would be a nullity so as to attract the dictum laid down by their Lordships of the Supreme Court in AIR 1954 SC 340 (supra). My learned brothers in their separate opinions differ only to this extent; while in respect of other matters. I find practically no conflict.
92. So far as the conclusions Nos. 2 and 3 mentioned by my brother, Shiv Dayal, J. are concerned. I do not find any difficulty in agreeing with them. From the separate opinion of my brother, Naik, J., I find that he has made observations which accord with the said conclusions of Shiv Dayal, J. But the only difference between the two is regarding the conclusion No. 1 and partly conclusion No. 4, and I propose to elaborate on that.
93. At this stage I might record my dissent with the observations made by my brother, Naik, J. to the effect that the same principle would be applicable to decree of regular Courts passed in contravention of Section 16 of the Provincial Small Cause Courts Act as to the decrees passed by a Small Cause Court in contravention of Section 15 of the Provincial Small Cause Courts Act. With due respect to my learned brother, I may observe that the question whether a decree passed by a Small Cause Court in contravention of Section 15 of the Provincial Small Cause Courts Act, would be a nullity does not arise in the present case and I would reserve my opinion for some suitable occasion.
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94. As regards proposition No. 1, propounded by my learned brother, Shiv Dayal, J., I may observe that Section 16 of the Act is no doubt framed in mandatory terms and on the face of it, it might suggest that the prohibition against trial of a suit of the nature of small causes by a regular Court would be absolute. If that be the interpretation, I would have no hesitation in holding that a decree passed in contravention of Section 16 of the Provincial Small Cause Courts Act would be a nullity.
95. But what prevents me from coming to that conclusion and instead persuades me in agreeing with the view expressed by my learned brother, Naik. J., is that Section 16 of the Act has made a provision for a saving clause. The Division Bench in 1968 Jab LJ 566 : (AIR 1969 Madh Pra 56) (supra) and 1968 Jab LJ 583 : (AIR 1969 Madh Pra 44) (supra) expressed its opinion without examining the implication and scope of the saving clause. If the implication and scope of the saving clause had been examined by that Division Bench in details. I am sure, the conclusion of the Division Bench would have been otherwise and in consonance with the view expressed by Naik, J. To illustrate it, I may observe that the Division Bench assumed that a trial of a suit of small cause nature by a regular Court would be in contravention of Section 16 of the Provincial Small Cause Courts Act. With due respect to the learned Judges constituting the said Division Bench, I may observe that it is not every trial that would be in contravention of Section 16 of the Act. A trial which is covered by the saving clause under Section 16 of the Act would be perfectly valid and to that Page 90 of 141 C/SA/227/2018 JUDGMENT extent I am in full agreement with the view expressed by my learned brother, Shiv Dayal, J. Further, 1 feel that the view as expressed in the said two Division Bench cases needs to be overruled by this Full Bench and accordingly agreeing with my brother. Naik, J., I would overrule the said two Division Bench decisions.
96. If we examine the scope of the saving clause of Section 16 of the Act, it would encompass cases which are mentioned in Section 102 of the Code of Civil Procedure; in Section 24(4) of the Code of Civil Procedure, in O. 46, R. 7, Civil P. C., in Section 23 of the Provincial Small Cause Courts Act and also in Section 15 of the M. P. Civil Courts Act, 1958.
97. These provisions have been elaborately scrutinised and examined by learned brothers, Naik and Shiv Dayal. JJ. However, Section 15 of the M. P. Civil Court Act, 1958, has an overriding effect over the provisions of the Code of Civil Procedure and the Provincial Small Cause Courts Act. It may be relevant to reproduce the said Section, which is as follows:
"S. 15. Power to distribute business.- Notwithstanding anything contained in the Code of Civil Procedure. 1908 (5 of 1908). or the law relating to Courts of Small Causes, in force for the time being in any area, the District Judge may, by order in writing direct that any civil business cognizable by it and the Courts under its control shall be distributed among those Courts in such manner, as he thinks fit:Page 91 of 141
C/SA/227/2018 JUDGMENT Provided that, except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes, or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction."
Therefore, it is open to a District Judge to send a case of Small cause nature for trial by a regular Court, notwithstanding the provisions of Section 16 of the Provincial Small Cause Courts Act and if such a trial is held by a regular Court, it will not be vitiated, nor can that decree be attacked as a nullity. Of course, according to the proviso to the Section, the Court to which the case is sent for trial should not lack in inherent jurisdiction to try a case of that kind and it must not be beyond the limits of its proper jurisdiction. In that event if the trial is not vitiated. Section
102. Civil P. C. will be attracted, with the result that there will be one appeal under S. 96 of the Code of Civil Procedure, but there will be no Second appeal and the appellate decision, at the most, would be revisable by the High Court under Section 115. Civil P. C. Such a trial would be regularised by the saving clause contained in Section 16 of the Provincial Small Cause Courts Act.
98. Section 23 of the Provincial Small Cause Courts Act also provides for return of the plaint for presentation to a regular Court, where a question of title to immovable property or Page 92 of 141 C/SA/227/2018 JUDGMENT other title is involved, which a Small Cause Court cannot adjudicate upon. The trial of such a question by the regular Court would also be valid by virtue of the saving clause in Section 16 of the Provincial Small Cause Courts Act.
99. Furtheron Section 24(4) of the Code of Civil Procedure empowers the High Court or the District Court to transfer a case from a Small Cause Court to regular Court. But the only provision is that for the purposes of such a suit, the transferee Court will also be deemed to be a Court of Small Causes.
100. Order 46, Rule 6, Civil P. C. provides for a reference by a regular Court or by a Small Cause Court to the High Court, where that Court is in doubt whether the suit is cognizable by a Court of Small Causes or is not so cognizable. Such a reference has undoubtedly to be made before the delivery of judgment. In that event the High Court can resolve the doubt and can order the trial of the case by a particular Court. A similar reference is provided for by R. 7, O. 46, Civil P. C. by subordinate Court. The District Court can make a reference to the High Court and on such reference, the High Court can pass an appropriate order. As has been pointed out by my learned brother. Shiv Dayal, J., the decree passed by the subordinate Court cannot be treated to be a nullity, because the High Court has not been given the power to validate a nullity, but only to pass an appropriate order as in the circumstances of a case may appear to the High Court to be just and proper. All these instances which come within the Page 93 of 141 C/SA/227/2018 JUDGMENT ambit of the saving clause of Section 16 of the Provincial Small Cause Courts Act, would make the decree valid. In my opinion, these are the eventualities in which the trial of a case would be saved by the saving clause and the trial in such cases, at least, cannot be said to be a nullity. I may further observe that if the matter comes to the High Court either on appeal or in revision, the matter can be set right in exercise of appellate or revisional powers. There is no bar to that course being adopted. In my opinion, it would be a matter relating to procedure only, as has been suggested by my learned brother. Naik, J. Under Section 9 of the Code of Civil Procedure, a Civil Court has the jurisdiction to try all causes of civil nature and as such it would have jurisdiction to try even a small cause suit or a suit of a small cause nature, but for the provisions of Section 16 of the Provincial Small Cause Courts Act, which, however, has provided for a very comprehensive saving clause so as to include many categories of cases, and moreover, Section 15 of the M. P. Civil Courts Act, 1958 having an overriding effect over the provisions of the Code of Civil Procedure and the Provincial Small Cause Courts Act, the trial of a case in contravention of Section 16 of the Provincial Small Cause Courts Act, can, in my opinion, not be said to be vitiated so as to be treated as trial without jurisdiction and to render the decree passed in such a trial an utter nullity. For this reason. I would agree with the view expressed by my learned brother, Naik. J. with due respect to my learned brother, Shiv Dayal, J. with whom I am unable to agree with respect to conclusion No. 1 and conclusion No. 4 (partly) mentioned in the concluding portion of his opinion.
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101. Therefore, I would answer the reference by agreeing with the view expressed by Naik, J. on the question referred to this Full Bench."
47. However, Justice Shiv Dayal Shrivastava, dissented with the majority view. Justice Shrivastava took the view that the decree would be a nullity. The findings recorded by Justice Shrivastava are as under :
"65. The Provincial Small Cause Courts Act (No. 9 of 1887; hereinafter called "the Act") is a special enactment which provides a speedy and cheap means of settling small causes; provides for the establishment of Courts and conferral of special jurisdiction on them to try such causes; lays down a summary procedure for them; and takes away the jurisdiction of the ordinary Court which otherwise had jurisdiction to try them, unless otherwise provided in the Act or any other enactment for the time being in force.
66. A Court of Small Causes as such is established under Section 5 of the Act and its territorial limits are defined by the State Government. Even where a Court of Small Causes as such is not established, an ordinary Court may be invested with jurisdiction of a Court of Small Causes by virtue of any enactment for the time being in force and in that case, the latter Court is, having regard to the provisions contained in Section 32 of the Act, practically a Small Cause Court. Section 33 of the Act then declares that in the latter case, such Court shall be, for the purposes of the Act and of Page 95 of 141 C/SA/227/2018 JUDGMENT the Code of Civil Procedure, deemed to comprise of two different Courts, that is, (i) a Court of Small Causes in respect of the exercise of that jurisdiction: and (ii) an ordinary Court of regular civil jurisdiction in respect of the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes.
67. Section 16 of the Act reads thus:
"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' having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."
This section clearly enacts that if a suit is cognizable by a Court of Small Causes, and if there exists a Small Cause Court having jurisdiction to try it, then the suit shall not be tried by any other Court. This section expressly takes away the jurisdiction of an ordinary Civil Court (which otherwise has jurisdiction) to try a suit of a small cause nature as a regular suit, provided a Court of Small Causes having jurisdiction to try it is in existence for that place. This is the meaning of the expression "shall not be tried by an ordinary Court having jurisdiction". That meaning is emphatically reinforced by the expression "the exclusion of the jurisdiction of other Courts in those suits" employed in Section 32(1) (b) Page 96 of 141 C/SA/227/2018 JUDGMENT of the Act. Therefore, the trial by an ordinary Court in contravention of Section 16 of the Act will be without jurisdiction.
68. It seems to me incontestable that where, by a legislative provision, the jurisdiction of a Court is excluded in respect of a specified subject-matter, the Court becomes deprived of the jurisdiction to try such matter. The legislative provision which takes away the jurisdiction of a Court in respect of a specified subject-matter, is necessarily imperative and cannot be treated as directory. The word "shall" in such a provision cannot be read as "may" and it must be given its ordinary significance, i.e. mandatory. No doubt, if such a provision is declared by the legislature to be subject to any exceptions, those exceptions will also have their operation and will control the main provision.
69. It is not possible to accept the proposition that where the jurisdiction of a Court is, by an express legislative provision, taken away in respect of a specified subject-matter, still the parties can have an option to invoke that jurisdiction which has been excluded; or the Court has still the option to exercise such jurisdiction; or a decree passed by it can still be treated as valid unless set aside. To accept such a proposition will create utter confusion, which the law cannot tolerate.
70. It is well established that where jurisdiction of a Court has been excluded in respect of a specified subject-matter, Page 97 of 141 C/SA/227/2018 JUDGMENT no amount of acquiescence, waiver, consent, ignorance of law, bona fides , good faith or any other consideration can confer such jurisdiction on such Court. In 9 Halsbury (Simonds) 452, it is stated:-
"Where, by reason of any limitation imposed by statute, charter, or commission, a court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court".
71. We are clearly of the view that the language of Section 16 of the Act is plain, unambiguous, emphatic and mandatory. It does not admit of any meaning other than this that no Court other than the Court of Small Causes can try a suit cognizable by a Court of Small Causes within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. In AIR 1954 SC 340, their Lordships have laid down the law emphatically in these words:-
"It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a Page 98 of 141 C/SA/227/2018 JUDGMENT defect cannot be cured even by consent of parties."
In Govinddas v. Parmeshwaridas, AIR 1957 Madh Pra 71, it was held that a decree passed by a Small Cause Court in a suit not cognizable by it is a nullity. Hidayatullah, C. J. (now Chief Justice of India), speaking for the Full Bench held thus:-
"It is well settled that the consent of parties cannot confer jurisdiction on the Court and an objection to jurisdiction can be taken at any stage in the proceeding. See (1886) 13 Ind App 134 (PC), Meenakshi Naidoo v. Subramaniya Sastri, (1887) 14 Ind App 160 (PC) and Ramlal v. Kisanchandra, AIR 1924 PC 95 ..................... The matter is again open because an objection as to inherent jurisdiction can be taken even in execution. This was laid down by the Supreme Court in AIR 1954 SC 340. It is also a well established rule of law that a nullity remains a nullity and can be so declared at any stage."
It is true that that case was on a converse proposition, but it is the ratio decidendi , that is, the principle of the case, which has binding force.
72. Section 21 of the Code of Civil Procedure is confined in its application to territorial jurisdiction and not to the competence of the Court to try a suit. In Hiralal v. Kalinath, AIR 1962 SC 199: 1962-2 SCR 79, their Lordships said:-
Page 99 of 141C/SA/227/2018 JUDGMENT ".........It is well settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case goes to the very root of the, jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure ............... The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking, in inherent jurisdiction in the sense that it could not have seizin of the case because the subject- matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject- matter of the suit or over the parties to it..........."
73. Section 102 of the Code of Civil Procedure bars a second appeal when the suit is of the nature cognizable by a Court of Small Causes. It is obvious enough that this section has no application to a suit which is tried by a Small Cause Court because no appeal at all lies (vide Section 27 of the Act). Section 102 comes into play only when a suit, although cognizable by a Court of Small Causes, is tried by an ordinary Court either for the reason that there is no Court of Page 100 of 141 C/SA/227/2018 JUDGMENT Small Causes in existence for that place or that the suit was, under the provisions of any enactment and subject to those provisions, transferred to an ordinary Court for trial. Section 102 has no application to any other situation.
74. No analogy can be taken from Section 15 of the Code of Civil Procedure. It is undoubted that while directing that a suit must be instituted in the Court of the lowest grade, the jurisdiction of a Court of higher grade has not been ousted. But it is not possible to accept that a Court of Small Causes is of a "lower grade" than an ordinary Civil Court. It is unnecessary to dilate further upon that point.
75. It is an argument that a Court of Small Causes is specially constituted or has special powers only to try a suit of the nature cognizable by a Court of Small Causes and it has no jurisdiction to try a suit which falls under the second schedule of the Act, but an ordinary Court has inherent jurisdiction to try a suit which is cognizable by a Court of Small Causes so that while in the former case there is inherent want of jurisdiction, in the latter, it is a mere irregularity in the procedure. In our opinion, this argument is not sound. The distinction between jurisdiction having not been conferred at all and jurisdiction having been taken away is without difference. In either case, jurisdiction does not exist when the suit is tried. It cannot be said to be a mere irregularity in the procedure. If that was so, S. 16 of the Act would have been differently worded. That section does not simply say that a suit cognizable by a Court of Small Causes Page 101 of 141 C/SA/227/2018 JUDGMENT shall not be tried in a manner other than that provided in the Act. What it enacts is that a suit shall not be tried by any other Court. In our opinion, the language is precise and unambiguous.
76. Another argument is that where a suit is tried in an ordinary Court, there is a full trial, that is to say, issues are framed, parties have better opportunity to produce evidence and depositions of witnesses are recorded in full, so that there is no prejudice to the parties and it is merely an irregularity or defect in the procedure. This argument too is untenable. Such a meaning cannot be spelt out from the language of the section. Once the mandate of the legislature is that a suit shall not be tried by any other Court, there is no jurisdiction to try it and a search for prejudice or want of prejudice is idle.
77. An irregularity or defect of procedure is one which occurs in the course of a trial, while following a certain, procedure, by a Court which has the initial jurisdiction to try it.
78. The untenability of both the above arguments can be illustrated by the following instance. In the case of a motor accident within the area for which a Motor Accident Claims Tribunal under Section 110 of the Motor Vehicles Act 1939, exists, a suit is instituted in a Civil Court of ordinary jurisdiction and a decree is passed. The trial will be without jurisdiction and the decree will be a nullity (vide Section 110- F of the Motor Vehicles Act) although, but for the establishment of the Claims Tribunal for the area, the Page 102 of 141 C/SA/227/2018 JUDGMENT ordinary Civil Court would have had jurisdiction and although the suit has been tried with elaborate procedure under the Code of Civil Procedure and the substantive provisions of the law of torts have been applied.
79. Their Lordships have recently said in M. K. Rappaiva v:
John, Civil Appeal No. 1787 of 1966, D/-27-8-1969 (SC). :-
"It is well settled that if any matter is directly prohibited, the same cannot be achieved indirectly."
In State of Rajasthan v. Leela, AIR 1965 SC 1296, Mr. Justice Ayyangar, speaking for the Court, expressed himself in emphatic language thus:-
"Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the one and reject the other on the ground of repugnance."
In Solmon v. Solomon and Co., 1897 AC 22 at p. 28, it was observed that the Court is not at liberty to give-
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"speculative opinion as to what the Legislature
probably would have meant although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done or not to be done, can only legitimately be ascertained from that which it has chosen to enact either in express words or by reasonable and necessary implication."
In Narayan Swami v. Emperor, AIR 1939 PC 47 at p. 51, their Lordships said:-
"When the meaning of words is plain it is not the duty of the courts to busy themselves with supposed intentions."
Lord Macnaghten said in Vacher and Sons Ltd. v. London Society of Compositors, 1913 AC 107 at p. 118 (HL):-
"Some people may think the policy of the Act unwise and even dangerous to the community............... But a judicial tribunal has nothing to do with the policy of the Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction."
In Mungilal v. Sugan Chand, AIR 1965 SC 101, their Lordships observed:-
Page 104 of 141C/SA/227/2018 JUDGMENT "It is certainly not open to a Court to usurp the functions of a legislature. Nor again is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it........."
It was held in I. T. Commr. v. Indian Bank Ltd., AIR .1965 SC 1473:-
"If there is ambiguity in the terms of a provision recourse must naturally be had to well established principles of construction but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principle."
In Rananjaya Singh v. Baijnath Singh, AIR 1954 SC 749 it was observed:-
"The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder."
In State of M.P. v. Vishnu Prasad, AIR 1966 SC 1593, the Supreme Court observed:-
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"A supposed difficulty would not provide any
justification for accepting an interpretation of a statute against the ordinary meaning of the language used in it".
80. We shall now turn to the opening words of Section 16:-
"Save as expressly provided by this Act or by any other enactment for the time being an force".
Section 23 of the Act is such an exception. Section 24(4) of the Code of Civil Procedure is another exception. If Section 16 of the Act was not mandatory, it was unnecessary to incorporate Section 23 in the Act and it was also unnecessary to enact Section 24(4) of the Code of Civil Procedure, or, likewise, O. 46, Rr. 6 and 7 of the Code of Civil Procedure, to which I shall presently refer.
81. Section 15 of the M. P. Civil Courts Act, 1958 is another provision which falls within the saving clause under Section 16 of the Act, The said section reads thus:
"15. Power to distribute business.- Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or the law relating to Courts of Small Causes, in force for the time being in any area, the Page 106 of 141 C/SA/227/2018 JUDGMENT District Judge may, by order in writing, direct that any civil business cognizable by it and the Courts under its control shall be distributed among those Courts in such manner, as he thinks fit:
Provided that, except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction."
Under this section, the District Judge is empowered to direct civil business cognizable by him and the Courts under his control to be distributed among them in such manner as he thinks fit. Because of such a distribution, Courts will have jurisdiction to try cases assigned to them according to the distribution. But the proviso lays down the exception that such a direction of the District Judge shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction. Thus, for instance, a Court of Small Causes shall not simply because of such distribution of business, have jurisdiction to try a suit not cognizable by it under the provisions of the Small Cause Courts Act, because such suits are beyond the limits of its proper jurisdiction. But as regards the converse case, the question is whether an ordinary Court can try a suit cognizable by a Court of Small Causes by virtue of the direction of the District Judge given under Section 15 of the M. P. Civil Courts Act, while distributing business among the Courts subordinate to it?
Page 107 of 141C/SA/227/2018 JUDGMENT The answer must be in the affirmative because of the words "except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes or of a Court invested with jurisdiction of a Court of Small Causes" in the proviso to Section 15. These words make it abundantly clear that even though it is the exclusive jurisdiction of a Court of Small Causes (or of a Court invested with jurisdiction of a Small Cause Court) to try a suit cognizable by it and that no other Court can try such a suit, such a suit will be beyond the limits of the proper jurisdiction of an ordinary Court, yet, the ordinary Court shall be competent to try such a suit. This special provision contained in Section 15 of the M. P. Civil Courts Act, 1958, squarely falls within the purview of the saving clause of Section 16 of the Small Cause Courts Act:
"Save as expressly provided by this Act or by any other enactment for the time being in force". Let it be mentioned here that the M. P. Civil Courts Act, 1958, was enacted after the assent of the President having been accorded to it.
82. We shall now advert to the provisions contained in O. 46, Rr. 6 and 7 of the Code of Civil Procedure.
83. According to the known consequences provided in the law, whenever there is want of jurisdiction to try a suit, the only course open is to direct return of the plaint for presentation to the proper Court. And, if in the meantime, the limitation for the suit has run out, the plaintiff has to seek shelter under Section 14 of the Limitation Act. It is only then that the question of good faith becomes crucial. Once it is Page 108 of 141 C/SA/227/2018 JUDGMENT held that the Court had no jurisdiction to try a suit, its judgment or decree is a nullity and no consideration can make it valid or effective. Hardship is wholly beside the point. See for instance, the illustration given by us of a suit arising out of a motor accident being tried by an ordinary Court when there is a Motor Accident Claims Tribunal established for that area.
84. However, there are two peculiarities about a suit of the nature cognizable by a Court of Small Causes. One, by its very nature, it is a petty matter and if substantial justice can be done on the basis of the material before it, it may be unduly harsh to drive the parties to a fresh trial; second, it, is sometimes not easy to determine whether the suit is really of the nature cognizable by a Court of Small Causes. It is evident from the provisions contained in Rules 6 and 7 that the legislature took a special note of these exceptional circumstances and conferred an extraordinary power upon the High Court. Rule 6 runs thus:-
"6(1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement, the High Court may order the Court either to proceed with the Page 109 of 141 C/SA/227/2018 JUDGMENT suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit."
This Rule empowers the High Court to determine the nature of the suit being cognizable by a Court of Small Causes or not, and further to order whether that suit shall be continued to be tried by the Court which is trying it, or shall be tried by the Court which is trying it, or shall be tried by another Court which the High Court declares to be competent to take cognizance of it. Rule 7 of Order 46, reads thus:-
"7(1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case, 'submitted to the High Court under Page 110 of 141 C/SA/227/2018 JUDGMENT this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule".
Three things must first be made clear about this Rule. Firstly, this Rule can be invoked not only when a suit is pending but also when it has been decided. Secondly, this Rule applies equally to a case where a suit cognizable by a Court of Small Causes is tried by an ordinary Court and to a case " vice versa ". Thirdly, a Court subordinate to a District Court within the meaning of Cl. (1) of the Rule may be the trial Court or the executing Court. It is clear from the language of the Rule that it enjoins the High Court to first determine the nature of the suit - whether it was cognizable by a Court of Small Causes or not - and to consequently hold whether it was tried by a Court having jurisdiction or not. In case, the High Court comes to the conclusion that truly speaking the Court which tried the suit had no jurisdiction to try it, it may make such order as it thinks fit. There can be no doubt that the decree passed in such a suit shall be a nullity, but the language of Cl. (2) of the Rule makes it quite clear that the High Court can as well deal with the case on merits so as to do substantial justice to the parties and save them from being put to unnecessary expense and botheration of a fresh trial, for instance, both the parties may have led all their evidence and the case be of such a nature that the High Page 111 of 141 C/SA/227/2018 JUDGMENT Court thinks that on the material before it, substantial justice can be done to the parties by a fresh decree to be made by it. In such a case, the High Court will not merely stop by saying that the Court which tried the suit had no jurisdiction but to pass such decree as it thinks fit, that is to say, it may pass a decree in favour of the plaintiff wholly or in part or may dismiss the suit, or may make such other order as it thinks fit. The language of the Rule invests in the High Court large and discretionary power. We have no doubt that unless this was the intention of the legislature, there would have been no meaning or object in enacting this Rule. The reason is this: (i) Ordinarily, it is the trial Court or the Court exercising appellate or revisional jurisdiction which decides the question of jurisdiction and the known consequences provided in the law then necessarily follow; and (ii) if, on the other hand, the provisions of Section 16 of the Act were merely directory and the decree passed in its contravention can be given effect to unless set aside, then also this Rule was redundant. No Court can arrogate to itself, nor can a superior Court confer on an inferior Court jurisdiction not vested in it by the legislature; nor can any Court validate a decree which is a nullity by reason of lack of jurisdiction. But by this extraordinary provision contained in R. 7, the High Court has been given large and discretionary power to make a fresh decree to do substantial justice to the parties, having regard to all the facts and circumstances and the material on record before it. See (1894) ILR 21 Cal 249; (1904) ILR 27 Mad 478; AIR 1915 Cal 619 and ILR 11 Pat 690 : (AIR 1933 Pat 31). As already pointed out, this extraordinary Power has for its basis the two exceptional considerations which Page 112 of 141 C/SA/227/2018 JUDGMENT are attached to a suit of the nature cognizable by a Court of Small Causes. The High Court is not bound under Rule 7 to make a fresh decree when the one made by the subordinate Court is without jurisdiction and the High Court may leave the matter to follow the ordinary consequences; for instance, return of the plaint for presentation to proper Court. Rule 7 merely invests the High Court with jurisdiction but not necessarily directs the ordinary consequences to follow but to make a fresh decree as it thinks fit. But it must be well understood that the expression "the High Court may make such order as it thinks fit" does not mean that the High Court validates a decree which is a nullity, or condones or cures the defect of jurisdiction. What the expression does it to confer upon the High Court the large and discretionary power to pass a fresh decree of its own on the basis of the material on record and then it is the decree of the High Court which, by its own force, becomes executable or operative and not because the defect of jurisdiction is condoned or cured. Therefore, this Rule cannot be called in aid to hold that the provisions of Section 16 are directory.
85. In our opinion, it cannot be argued that where the consequences of non-compliance with a provision excluding the jurisdiction of a Court are not specifically provided in the law, such a provision excluding jurisdiction of a Court can be treated as directory. Where jurisdiction of a Court is excluded, that is, when there is want of jurisdiction, the well known consequence is that the decree rendered by it is a nullity. This principle has been called, by their Lordships of the Supreme Court, "a fundamental principle well Page 113 of 141 C/SA/227/2018 JUDGMENT established". See Kiran Singh's case, AIR 1954 SC 340 (supra).
86. The conclusions we have reached may now be summed up thus:- (1) There is no practical difference between a Court of Small Causes constituted under Section 5 of the Small Cause Courts Act and a Court invested with jurisdiction of a Small Cause Court; for instance, under Section 9 of the M. P. Civil Courts Act, 1958. (2) A Court so invested with jurisdiction of a Small Cause Court is to be deemed, for the purposes of the Small Cause Courts Act and of the Code of Civil Procedure to comprise of two different Courts; (i) a Court of Small Causes with respect to the exercise of jurisdiction of a Small Cause Court; and (ii) a Court with respect to the exercise of its jurisdiction in suits not cognizable by a Court of Small Causes. (3) When there is a Court of Small Causes which has jurisdiction to try a suit, the jurisdiction of all other Courts, which otherwise had jurisdiction to try it, is excluded by Section 16 of the Small Cause Courts Act. (4) The language of Section 16 is precise, unambiguous, emphatic and mandatory, (5) There is no difference between a Court which never had jurisdiction but it is excluded by a legislative provision. In either case, there is want of jurisdiction. And, the decree which is passed by a Court without jurisdiction is a nullity. Such a decree cannot be executed, nor can otherwise be given effect to. (6) Where jurisdiction of a Court has been excluded in respect of a specified subject-matter, no amount of acquiescence, waiver, consent, ignorance of law, inadvertence, error, bona fides , good faith, or any other consideration such (will-Ed) confer Page 114 of 141 C/SA/227/2018 JUDGMENT such jurisdiction on such Court. (7) When a suit is tried by a Court whose jurisdiction has been excluded, it is a case of jurisdictional want, not a mere procedural defect. A defect in the procedure is an irregularity which occurs in the course of a trial, while following a certain procedure, by a Court which has the initial jurisdiction to try it. (8) A legislative provision, which excludes jurisdiction of a Court, is necessarily imperative and cannot be treated as directory. The word "shall" in such a provision must be given its ordinary significance (that is mandatory); it cannot be read as "may". (9) It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in a collateral proceeding, (10) The provisions in the Small Cause Courts Act (for instance. Section 23) and those contained in any other enactment for the time being in force (for instance. Section 24, Civil P. C.; O. 46, Rr. 6 and 7, Civil P. C.; Section 15 of the M. P. Civil Courts Act) must be given effect to by virtue of the saving clause in Section 16 of the Small Cause Courts Act, (11) Under O. 46. R. 7, Civil P. C., even if the High Court finds that a decree has been made by an ordinary Court in a suit cognizable by a Small Cause Court, the High Court has large and discretionary power to do substantial justice to the parties by making a fresh decree of its own, having regard to the entire facts and circumstances of the case and the material on record, and thus save the parties of the expense and botheration of a fresh trial. In doing so, the High Court does not validate a decree which is a nullity for want of Page 115 of 141 C/SA/227/2018 JUDGMENT jurisdiction, nor condones or cures the defect of jurisdiction. The decree which it makes in exercise of the large and discretionary powers under the Rule is a fresh one and shall operate and be given effect to by its own force.
87. I answer the reference thus:-
(1) Where a suit of the small cause nature is instituted and tried as a regular suit by an ordinary Court in contravention of the provisions of Sec. 16 of the Small Cause Courts Act (No. 9 of 1887), the decree or order rendered in it is without jurisdiction and a nullity.
(2) However, the provisions in the Small Cause Courts Act (for instance. Section 23) and those contained in any other enactment for the time being in force (for instance, S. 24, Civil P. C.; O. 46, Rr. 6 and 7, Civil P. C., Section 15 of the M. P. Civil Courts Act) must be given effect to by virtue of the saving clause in Section 16 of the Small Cause Courts Act. In these and such other cases, the decree passed by an ordinary Court is not in contravention of S. 16 of that Act.
(3) When, by virtue of an order of the District Judge under S. 15 of the M. P. Civil Courts Act, 1958, any civil business cognizable by the District Judge and the Courts under his control is distributed among them and if because of such distribution any cases cognizable by Page 116 of 141 C/SA/227/2018 JUDGMENT a Court of Small Causes are assigned to ordinary Courts, then the decrees passed by the latter are not nullities; they are valid being within the saving clause of Section 16.
(4) Once the High Court is seized of a case under O. 46, R. 7, Civil P. C., it has large and discretionary power to make such fresh decree as it may think fit, having regard to all the facts and circumstances of the case and the material on record, even though it finds that an ordinary Court has tried a suit cognizable by a Small Cause Court; and the decree or order passed by such Court is a nullity, being without jurisdiction. Such a decree made by the High Court is a fresh one and is executable and given effect to by its own force, not because it validates, cures or condones the nullity."
48. The majority view taken by the Full Bench of the Madhya Pradesh High Court referred to above is quite commendable and I propose to follow the same view in the present case.
49. Let me refer to and rely upon one decision of the Calcutta High Court in the case of Smt.Satyabala Samanta and others v. Bishnupada Adak and other, AIR 1991 Calcutta 78. The findings are as under :
"5. The revision has been preferred by the defendant in the suit. He mainly attacks the judgment on the ground that the Page 117 of 141 C/SA/227/2018 JUDGMENT suit was cognizable by a court of small causes and the trial of the suit as a long cause in the manner has vitiated the proceeding. The court having no jurisdiction to try the suit on the original side the decree is void. A suit of small cause nature is tried on the original side by a court not invested with powers of a Court of Small Causes. Courts have been faced with the question as to whether the decree in such a case is without jurisdiction and consequentially void.
6. Divergent opinion has been expressed by courts. One view is that the decree is void. Ram Lakhan v. Mist. Janka, AIR 1925 Oudh 101, Checkiah Thevar v. Shanmugasundaram, AIR 1956 Mad 610. The other view is that it is an irregularity or defect in procedure. The decree is not a nullity, Jodha Bijal v. Maganlal Chaganlal, AIR 1930 Bom 80; Bhaiyalal Giridharilal v. Tikaram Udaichand Jain, AIR 1970 Madh Pra 237 (1713).
6A. Section 16 of the Provincial Small Cause Courts Act reads as follows "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 having jurisdiction within the local limits of the jurisdiction of the court of small causes by which suit is triable".Page 118 of 141
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7. The provision bars the trial of a small cause suit by a court of Ordinary Civil Jurisdiction provided there is a court of small causes to try the suit.
8. Mr. Bhattacharya appearing for the petitioners very much relies upon Section 9 of the Civil Procedure Code. Code of Civil Procedure ordinarily applies in small cause suits excepting Section 7, Order 21 Rule 82, Order 38, Rule 13 and Order 50 of the Code of Civil Procedure. Section 9 of the Code lays down:-
"The courts shall (subject to the provision herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
The two provisions read together clearly indicate that the court of ordinary civil jurisdiction will not try a suit of small cause nature.
9. In the instant case, the trial of an alleged suit of small cause nature has been tried as a long cause by a civil court on the original side. The petitioner contends that the decree awarded by the two courts below is void. The main ground that weighed with the court of appeal below to repel the argument is that such a belated plea cannot be allowed to be taken. The plea was taken during argument only. Mr. Bhattacharya relied upon Section 99 of the Code of Civil Procedure.
Page 119 of 141C/SA/227/2018 JUDGMENT "No decision shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any procedure in the suit, not affecting the merits of the case or the jurisdiction of the Court".
10. Relying upon this provision it is contended that the question of jurisdiction can be raised even in appeal and in revision. The petitioners are substantially correct. The question of jurisdiction can be taken even in appeal or in revision if such jurisdiction is inherently lacking in the trial Court.
11. In this connection we may also look to Section 21 of the Code as amended in 1976.
"Section 21(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 competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court Page 120 of 141 C/SA/227/2018 JUDGMENT 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).................................."
12. Supreme Court observed in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 :
"It is a fundament all principle well established that a decree passed by a Court without jurisdiction is a nullity. Invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceeding. A defect in jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
13. The argument of the petitioner is that Section 16 of the Provincial Small Cause Court Act read with Section 9 of the Code of Civil Procedure bars the jurisdiction of the Civil Court to try a suit of small cause nature on the original side and therefore the decree is a nullity. In view of the decision in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) (supra) such a void decree can be challenged in revision. Therefore, Page 121 of 141 C/SA/227/2018 JUDGMENT the reasoning of the Court of appeal below, it is urged, will fail. It is further contended that in view of the provision contained in Order 7, Rule 10 of the Code of Civil Procedure the plaint should be returned to the opposite party for presentation in proper court.
14. Section 99 of the Code of Civil Procedure is qualified by Section 21 of the Code. In other words, the Court will not entertain the plea of want of jurisdiction even under Section 99 of the Code in so far as such plea is untenable under Section 21 of the Code.
15. Section 21(2) has been engrafted in the Code by Amendment Act of 1976. In the decision in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) (supra) while the Supreme Court found defect of jurisdiction, refused to interfere on the ground that no prejudice had been caused in that case on valuation given in plaint. Appeal would lie before the District Judge. On revision of valuation first appeal would lie only in High Court. But the first appeal was heard by the District Judge. Supreme Court found that no prejudice had been caused in that case. The consideration of absence of prejudice weighed with the Court to reject the objection.
16. Two considerations must weigh with the Court. The paramount consideration in such cases would be whether the Court was inherently lacking jurisdiction. The distinction between inherent want of jurisdiction and irregular exercise Page 122 of 141 C/SA/227/2018 JUDGMENT of jurisdiction cannot be overlooked. Second consideration is prejudice of the parties or failure of justice. In the former case the question of prejudice or consideration of failure of justice are immaterial. In the latter they are very material.
17. The scheme of the Provincial Small Cause Court Act has been designed to ensure speedy trial and a cheap remedy. Elaborate procedure in a civil suit need not be followed in the trial of a small cause by Small Cause Court. Therefore, a summary procedure is followed to try a small cause. A Munsif exercising original civil jurisdiction can try a money suit on the original side. Such a suit may be maintainable in a court of small causes. On account of the bar under Section 16 of the Provincial Small Cause Court Act and Section 11 of the Code of the Civil Procedure the former does not or rather cannot try a suit of small cause nature. Therefore if the former court tries a small cause by following an elaborate procedure of a civil suit the parties to the suit do not get prejudiced. What they actually lose are a speedy trial and a cheaper remedy. But they get chances of appeal. In the contrary case, of course, there shall be prejudice. A money suit not triable by a court of small causes cannot be decided by following a summary procedure by the court of small causes since the parties were entitled to an elaborate procedure of a civil suit on the original side.
18. So the Munsif was not inherently lacking jurisdiction to adjudicate a money claim on the original side. In deciding a case of a small cause nature on the original side there was an irregular exercise of jurisdiction. In Jodha Bijal v.
Page 123 of 141C/SA/227/2018 JUDGMENT Maganlal Chhagalal (AIR 1930 Bom 80) (supra) and Bhaiyalal Giridharilal Shrivastava v. Tikaram (AIR 1970 Madh Pra 237) (FB) this has been termed as 'defect in procedure'.
19. The second testis failure of justice or prejudice of the parties as pointed out. The Munsif who was competent to adjudicate a money claim has tried the case on the original side and the parties had full opportunity to contest the case. There has been no failure of justice or prejudice of the parties.
20. In this context the incorporation of sub-section (2) of Section 21 of C.P. Code may be considered. If a suit is triable by an Assistant District Judge is tried by a Munsif objection on this score cannot be entertained in a superior forum unless such objection had been taken in the trial court before settlement of issues. In the instant case the jurisdiction has been questioned during the time of argument. Once the trial is concluded the defendant cannot be heard to say that the Court had no jurisdiction.
21. Similar problem has been dealt with by the Full Bench of the Madhya Pradesh High Court in Bhaiyalal Giridharilal Shrivastava v. Tikaram Udaichand Jain, AIR 1970 Madh Pra
237. The question was considered from different points of view and it has been finally held that the decree is not a nullity for contravention of Section 16 of the Provincial Small Cause Court Act. I am in agreement with the view. In accepting the view I do not propose to lay down that a suit of Page 124 of 141 C/SA/227/2018 JUDGMENT small causes can be filed in a court of civil jurisdiction on the original side despite the existence of a court of small causes which can take cognizance of the case. But I find that the decree does not become a nullity for trial of a small cause suit by a court of ordinary civil jurisdiction on the original side inadvertently or otherwise provided the parties submitted to the jurisdiction of the court or did not raise objection at the earliest opportunity.
22. This revisional application must fail on another ground. The small causes Court will not take into cognizance any dispute which involves intricate question of title. In the instant case the opposite parties claim title to the property. The defence denies the title and sets up another as the owner. According to the defence the property belongs to the Barwari Committee under whom the defendant is a tenant. So the Court has to decide this disputed question of title. An ordinary Court of civil jurisdiction should adjudicate this dispute."
50. I may also take support of a Full Bench decision of the Bombay High Court in the case of Jodha Bijal v. Maganlal Chhaganlal Desai, AIR 1930 Bom 80. I may quote the relevant two paragraphs thus :
"2. The facts have been stated at considerable length in the Judgments of the lower Courts. We are of opinion that Suit No. 10 of 1926, out of which revision application No. 429 of 1929 arises, was for recovery of the amount paid under threat of seizure plus the penalty and interest by way of Page 125 of 141 C/SA/227/2018 JUDGMENT damages for the detention of the money. This being so, it was a suit cognizable by a Court of Small Causes. The plaintiff filed it as a Small Causes Court suit before the Subordinate Judge with Small Causes Court powers who directed that it should be tried as an ordinary suit. Subsequently it was transferred to the Joint Subordinate Judge who had no Small Causes Court powers and he tried it as an ordinary suit. We think the cause of action was not one under the Second Schedule, Clause 33 (j), merely because there was a claim for interest. The interest was claimed by way of damages for detention of the money and not as compensation under Clause (j).
3. The Joint Subordinate Judge decreed the plaintiff's claim. The District Court reversed his decree. The plaintiff applies here in revision. We think that on the authority of Koilipara Seetapathy v. Kankipati Subbayya (1908) I.L.R. 33 Mad. 323, Parameshwaran Nambudiri v. Vishnu Embrandri (1904) I.L. 27 Mad 478, and Abdul Majid v. Bedyadhar Saran Das (1916) I.L.R. 39 All. 101, the procedure which we might have followed would have been to set aside the lower appellate Court's decree. But sitting as we are in revision we think that the trial of the suit as an ordinary suit has prejudiced the parties because the Joint Subordinate Judge was not a Judge of sufficient seniority to be entrusted with Small Causes Court powers and therefore not a proper tribunal for the trial of this suit. We do not mean to infer from this that he had no jurisdiction to try the suit because failure to comply with Section 16 of the Provincial Small Causes Courts Act seems to us to be merely a defect in procedure in proceeding Page 126 of 141 C/SA/227/2018 JUDGMENT in a Court other than the Small Causes Court having jurisdiction to try the case. Had the suit been tried as a Small Causes Court suit there would have been no appeal from the decree under Section 27 of the Small Causes Courts Act. But the suit would then have been tried by a Judge invested with Small Causes Court powers and therefore one whose decision the Legislature invested with finality."
51. Mr.Thakkar, the learned counsel appearing for the appellants - original defendants, placed reliance on one decision of the Supreme Court in the case of Harshad Chimanlal Modi v. DLF Universal Limited and another, (2005)7 SCC 791. The appeal before the Supreme Court was filed against the order passed by the Additional District Judge, Delhi and confirmed by the High Court of Delhi, holding that the Delhi Court had no jurisdiction to try the suit and the plaint should be returned to the plaintiff for presentation to the proper court. The suit was one for specific performance of agreement relating to immovable property. It was argued before the Supreme Court that in accordance with the provisions of Section 16 of the Code, such suit can be instituted where the immovable property is situated. Indisputably, the suit property in the said case was situated in Gurgaon (State of Haryana). The Delhi Court, therefore, had no jurisdiction to entertain the suit for specific performance of agreement of purchase of a plot situated outside Delhi. The Supreme Court took notice of the fact that the defendants were having their Head Office at Delhi. The agreement was entered into between the parties at Delhi. The payment was to be made at Delhi and some installments were also paid at Delhi. However, the pertinent question that the Supreme Court posed for its Page 127 of 141 C/SA/227/2018 JUDGMENT consideration was that in which court a suit for specific performance of agreement relating to immovable property would lie. The Supreme Court took the view that the parties by themselves could not have conferred jurisdiction over a particular court which had none. In the said case, the parties had agreed that the Delhi Court alone would have the jurisdiction in the matters arising out of the transaction. The Supreme Court observed that such a provision would apply to those cases where two or more courts have jurisdiction to entertain the suits and the parties have agreed to submit to the jurisdiction of one court. In the aforesaid factual background, the Supreme Court held as under :
"15. Now, Sections 15 to 20 of the Code contain detailed provisions relating to jurisdiction of courts. They regulate forum for institution of suits. They deal with the matters of domestic concern and provide for the multitude of suits which can be brought in different courts. Section 15 requires the suitor to institute a suit in the court of the lowest grade competent to try it. Section 16 enacts that the suits for recovery of immovable property, or for partition of immovable property, or for foreclosure, sale or redemption of mortgage property, or for determination of any other right or interest in immovable property, or for compensation for wrong to immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Proviso to Section 16 declares that where the relief sought can be obtained through the personal obedience of the defendant, the suit can be instituted either in the court within whose jurisdiction the property is situate or in the court Page 128 of 141 C/SA/227/2018 JUDGMENT where the defendant actually or voluntarily resides, or carries on business, or personally works for gain. Section 17 supplements Section 16 and is virtually another proviso to that section. It deals with those cases where immovable property is situate within the jurisdiction of different courts. Section 18 applies where local limits of jurisdiction of different courts is uncertain. Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to movable property. Section 20 is a residuary section and covers all those cases not dealt with or covered by Sections 15 to 19.
16. Section 16 thus recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. Proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on well known maxim "equity acts in personam, recognized by Chancery Courts in England, Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that courts could grant relief in suits respecting immovable property situate abroad Page 129 of 141 C/SA/227/2018 JUDGMENT by enforcing their judgments by process in personam, i.e. by arrest of defendant or by attachment of his property.
19. In the instant case, the proviso has no application. The relief sought by the plaintiff is for specific performance of agreement respecting immovable property by directing the defendant No.1 to execute sale deed in favour of the plaintiff and to deliver possession to him. The trial court was, therefore, right in holding that the suit was covered by clause (d) of Section 16 of the Code and the proviso had no application.
20. In our opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court.
21. A plain reading of Section 20 of the Code leaves no room of doubt that it is a residuary provision and covers those cases not falling within the limitations of Sections 15 to 19. The opening words of the section "Subject to the limitations aforesaid" are significant and make it abundantly clear that the section takes within its sweep all personal actions. A suit falling under Section 20 thus may be instituted in a court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain or cause of action wholly or partly arises.Page 130 of 141
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26. The question, however, is whether Delhi Court has jurisdiction in the matter. If the answer to that question is in the affirmative, the contention of the plaintiff must be upheld that since Delhi Court has also jurisdiction to entertain the suit and parties by an agreement had submitted to the jurisdiction of that court, the case is covered by Section 20 of the Code and in view of the choice of forum, the plaintiff can be compelled to approach that court as per the agreement even if other court has jurisdiction. If, on the other hand, the contention of the defendant is accepted and it is held that the case is covered by Section 16 of the Code and the proviso to Section 16 has no application, nor Section 20 would apply as a residuary clause and Delhi Court has no jurisdiction in the matter, the order impugned in the present appeal cannot be said to be contrary to law. As we have already indicated, the suit relates to specific performance of an agreement of immovable property and for possession of plot. It is, therefore, covered by the main part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary provision) would apply and hence Delhi Court lacks inherent jurisdiction to entertain, deal with and decide the cause.
29. Ms.Malhotra, then contended that Section 21 of the Code, requires that the objection to the jurisdiction must be taken by the party at the earliest possible opportunity and in any case where the issues are settled at or before settlement of such issues. In the instant case, the suit was filed by the Page 131 of 141 C/SA/227/2018 JUDGMENT plaintiff in 1988 and written statement was filed by the defendants in 1989 wherein jurisdiction of the court was 'admitted'. On the basis of the pleadings of the parties, issues were framed by the court in February, 1997. In view of the admission of jurisdiction of court, no issue as to jurisdiction of the court was framed. It was only in 1998 that an application for amendment of written statement was filed raising a plea as to absence of jurisdiction of the court. Both the courts were wholly wrong in allowing the amendment and in ignoring Section 21 of the Code. Our attention in this connection was invited by the learned counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein Petroleum Co. v. P.J. Pappu, 1966(1) SCR 461.
30. We are unable to uphold the contention. 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 subject matter. 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 subject matter, 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 nullity.Page 132 of 141
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34. The case on hand relates to specific performance of a contract and possession of immovable property. Section 16 deals with such cases and jurisdiction of competent court where such suits can be instituted. Under the said provision, a suit can be instituted where the property is situate. No court other than the court where the property is situate can entertain such suit. Hence, even if there is an agreement between the parties to the contract, it has no effect and cannot be enforced.
37. In the instant case, Delhi Court has no jurisdiction since the property is not situate within the jurisdiction of that court. The trial court was, therefore, right in passing an order returning the plaint to the plaintiff for presentation to the proper court. Hence, even though the plaintiff is right in submitting that the defendants had agreed to the jurisdiction of Delhi Court and in the original written statement, they had admitted that Delhi Court had jurisdiction and even after the amendment in the written statement, the paragraph relating to jurisdiction had remained as it was, i.e. Delhi Court had jurisdiction, it cannot take away the right of the defendants to challenge the jurisdiction of the court nor it can confer jurisdiction on Delhi Court, which it did not possess. Since the suit was for specific performance of agreement and possession of immovable property situated outside the jurisdiction of Delhi Court, the trial court was right in holding that it had no jurisdiction."Page 133 of 141
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52. In my view, the decision of the Supreme Court in the case of Harshad Chimanlal Modi (supra) is of no avail to the appellants.
53. I have reached to the conclusion that the decree passed by the civil court and affirmed by the lower appellate court cannot be said to be without jurisdiction and, therefore, a nullity.
54. The above takes me to look into the other three questions formulated in the memorandum of the Second Appeal as the substantial questions of law.
55. In my view, they cannot be termed as the substantial questions of law. At the most, they can be termed as mixed question of law and fact.
56. In this regard, I must look into the findings recorded by the trial court.
"(9.4) The defendants have not submitted any evidence on oath or produced any documentary evidence to prove the facts and defense taken in their written statement produced at Exhibit-15. Moreover, the conduct of the defendant is also required to be taken into consideration under Section-8 of the Indian Evidence Act, 1872 as the defendant has stated that Page 134 of 141 C/SA/227/2018 JUDGMENT the plaintiff has committed fraud with him but there is no such facts on the record that he lodged complaint or initiated any action against the plaintiff. Further, the defendant could not prove any such fact in the cross examinations of the plaintiff and the witnesses. Moreover, considering the oral as well as documentary evidence on record, it is found that the defendant could not rebut the presumption of Section - 118(a) of the Negotiable Instrument Act made against him. As discussed herein above by the court, the defendants could not prove that the defendants of this case had given promissory notes towards security and the plaintiff has misused it. The defendants could not prove any fact in their favour in the cross examination of the plaintiff and the witness examined by them.
Thus, answer of the issue no.1 is given in affirmative as discussed herein above by the court, whereas, the answer of issue no.2 is given in negative.
Issue No.3:-
(10) The plaintiff Mangalsing Shyamsing Gill has stated in deposition on oath of Exhibit-20 that the plaintiff had given Rs.1,00,000/- on 05/01/2005 and Rs.1,00,000/- on 10/01/2005 in cash. Date in the promissory note of Exhibit-
25 in the said suit is of 05/01/2005, whereas, date in the promissory note of Exhibit-26 is of 10/01/2005. Considering the writings of the promissory note, it is stated "money will be returned as and when demanded". The plaintiff has filed present suit on 12/02/2007. Considering the legal provision Page 135 of 141 C/SA/227/2018 JUDGMENT of Article - 35 of the Limitation Act, the plaintiff has filed present suit within three years, therefore, the suit of the plaintiff is within limitation period. The Civil Suit of the plaintiff is not barred by Section-3 of the Limitation Act, therefore, the answer of issue no.2 is given in negative by this court.
Issue No.4 & 5:-
(11) As discussed herein above by the court, the plaintiff is entitled to recover Rs.2,00,000/- from the defendants..
Moreover, the plaintiff had given Rs.1,00,000/- to the defendant, and in response thereof, the defendant had issued promissory note on 05/01/2005 and therefore, the plaintiff has demanded for interest of Rs.37,500/- at 18% p.a. accumulating from 06/01/2005 to 05/02/2007 for 25 months and another amount of Rs.1,00,000/- was given by the plaintiff to the defendant, for which the defendant has issued promissory note on 10/01/2005, therefore, the plaintiff has demanded for interest of Rs.37,500/- at 18% p.a. accumulating from 06/01/2005 to 05/02/2007 for 25 months. Thus, the amount of total interest of Rs.75,000/- and Rs.2,00,000/-, aggregating to Rs.2,75,000/- has been demanded. The court deems fit to consider legal provisions of the Section-34 of the C.P.C. at this stage. There is no reference or agreement regarding interest in the promissory notes of Exhibit-25 and 26. As discussed in issue no.1 and 2 above by the court, the plaintiff of the case is entitled to get the amount of Rs.2,00,000/- (Rupees Two Lakh only) from Page 136 of 141 C/SA/227/2018 JUDGMENT the defendants. Moreover, considering the legal provisions of Section-34 of the Civil Procedure Code, it appears just and proper to order for interest of 9% p.a. from the date of suit for Rs.2,00,000/- till the actual payment. Further, considering the legal provisions of Section-35 of the Civil Procedure Code, as the plaintiff has to file the present suit due to the fault on the part of the defendants, it appears just and proper to award the cost to the plaintiff. In these circumstances, this court has answered issue no.4 in partly affirmative, whereas, following order is passed towards the answer of issue no.5."
57. The aforesaid findings came to be affirmed by the lower appellate court, holding as under :
"(13) The plaintiff has deposed vide Ex-20. He has reiterated all the facts stated in his suit during deposition on oath and further stated that he has retired on 31-01-2003.
The weddings of son-daughter of the defendants were to be held on 14-02-2005 and therefore, having the need of money, they approached the plaintiff and asked for Rs.2,00,000/- in January-2005. The plaintiff gave them rupees two lakh. He gave Rs.1,00,000/- on 05-01-2005 and Rs. 1,00,000/- on 10-01-2005. In lieu of the same, the defendants issued two promissory notes. The said promissory notes have been produced at Ex-25 and Ex-26. Looking to the said promissory notes, the defendants have put signature-thumb impression on revenue stamp and admitted that they have borrowed two lakh rupees i.e. Rs.
Page 137 of 141C/SA/227/2018 JUDGMENT 1,00,000/- on 05-01-2005 and Rs. 1,00,000/- on 10-01- 2005. The defendants have not raised objection in respect of their signatures not having been put in the promissory notes.
(14) Now, looking to the cross examination of the plaintiff by the defendant, plaintiff has denied that the defendants have not borrowed any amount. Looking to entire cross examination, only leading questions have been asked for the defendant to which the plaintiff has denied. Therefore, the burden of proof of proving leading questions lies on the defendants. But, the defendants have not made any attempts to prove the said facts.
(15) Moreover, it has been admitted for the defendants during cross examination that, "I know Rahabhai Bharwad. It is true that as Rahabhai Bharwad was asked to put his signature as a witness, he put his signatures in Ex-25 and Ex-26".
The plaintiff denies that transaction has taken place in the presence of Rahabhai. He has also denied that he lent the money to the defendant by charging interest.
(16) Thus, on perusing the depositions of plaintiff and plaintiff's witness Rahabhai at Ex-32, the plaintiff has been able to prove the fact of giving Rs. Two lakh in cash to the defendant. As per the above discussion, the defendant has only asked leading questions in cross examination of the plaintiff. But, he has not produced any evidence to prove his case.
Page 138 of 141C/SA/227/2018 JUDGMENT (17) Looking to the record, the plaintiff has submitted pursis for closing of evidence vide Ex-33 on 05-05-2016. Thereafter, advocate of defendants- present appellant has submitted pursis vide Ex-36 that no witness or evidence remain to be examined and therefore, produced pursis for closing of evidence. Thus, looking to the entire fact, as the defendant has not produced any evidence to shift his burden of proof and I believe that the plaintiff has succeeded in proving his case on the basis of evidence produced by him and hold that the order passed by the trial court allowing the suit of plaintiff is just and proper and there is not an iota of an error in the said order.
(18) As per the aforesaid discussion, the defendant has cross examined the plaintiff and his witness and advocate of the defendant has submitted closing pursis vide Ex-36. Looking to rojkam, it is regarding hearing of submission of present appellant i.e. defendant on 17-09-2016 and the said hearing of the submission is also referred in the judgment. Therefore, the defendant has made futile attempt to receive sympathy of the Court to cover his failure by stating the facts contrary to the record that closing pursis was forcefully obtained without giving an opportunity of producing evidence in order to help the plaintiff.
(19) Thus, present appellant has stated one sided facts in appeal memo and written submissions. If the appellant is not imposed with fine of appropriate amount, allegation contrary Page 139 of 141 C/SA/227/2018 JUDGMENT to record would be leveled against the court in ordinary course. Therefore, it appears just to impose fine of proper amount upon present appellant in connection with the allegations contrary to the record.
(20) Thus, at the end of above discussion, as the order passed by the Trial Court allowing suit of plaintiff partially on the basis of evidence submitted by the plaintiff before the Trial Court is proper, just and lawful, believing that the appellant has failed to prove the fact that signature-thumb impression of defendant-present appellants was obtained on blank form and blank promissory notes and appellant did not receive any amount from present defendant, issue no.1 and 2 are held in negative. Whereas, believing that defendant- original plaintiff has been able to prove the fact that present appellant lent Rs. Two lakh rupees to defendant- original plaintiff, and therefore, issue no.3 is held in affirmative. As the order of the Trial Court allowing the suit of plaintiff partially is not false, erroneous and liable to be set aside, no interference is required and accordingly, decision of issue no.4 is given in the negative."
58. In my view, the concurrent findings recorded by the two courts below fixing the liability of the defendants to pay to the plaintiff the decreetal amount cannot be termed as perverse or erroneous in law. I see no good reason to disturb the concurrent findings of the two courts below in this regard in this Second Appeal under Section 100 of the Code.
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59. In view of the above, this Second Appeal fails and is hereby dismissed.
60. In view of the dismissal of the Second Appeal, the connected Civil Application would not survive and the same is disposed of accordingly.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 141 of 141