Andhra HC (Pre-Telangana)
Karri Appalamma (Since Died) And Ors. vs Bendalam Seetarama Murthy on 17 September, 2001
Equivalent citations: 2002(1)ALT8
ORDER P.S. Narayana, J.
1. The defendants in Small Cause Suit No. 24 of 1995 on the file of Subordinate Judge, Sompeta are the revision petitioners. The respondent is the plaintiff in the said suit.
2. The suit was filed for recovery of a sum of Rs.6,150/- from the assets of Late Karri Domburu, now in the hands of defendants 1 to 3 i.e. the revision petitioners, being the principal and interest due on a promissory note dated 8-9-1993 for a sum of Rs.5,000/- executed by Late Karri Domburu in favour of the respondent-plaintiff with interest at 12% per annum and subsequent interest and costs of the suit. The parties for the purpose of convenience will be referred to as plaintiff and defendants.
3. The plaintiff filed the suit pleading that one Karri Domburu, the father of defendants 2 and 3 and the husband of 1st defendant, borrowed a sum of Rs.5,000/- on 8-9-1993 at Sompeta for the purpose of construction of a house and executed a promissory note agreeing to repay the same with interest at 24% per annum and subsequent thereto the said borrower did not repay any amount during his lifetime in spite of repeated demands and even after his death the defendants who are the legal heirs of the deceased borrower had not paid any amount despite the advocate's notice dated 9-2-1995. Hence, the suit was filed for recovery of amount.
4. The 2nd defendant, who is the second revision petitioner, had filed a written statement denying all the allegations. It was specifically pleaded that the said Karri Domburu during his lifetime never borrowed any amount from the plaintiff and the said promissory note is a forged and fabricated document and there is no necessity to borrow any amount from the plaintiff since he never constructed any house and further it was pleaded that they are not in possession and enjoyment of any of the assets of Late Karri Domburu and it was also further pleaded that the defendant is a small farmer and hence the benefits of the Act 45 of 1987 and the Act 7 of 1977 are applicable to him and hence, the defendants prayed for dismissal of the suit.
5. The Court below had framed the following point for consideration:
"Whether the plaintiff is entitled for recovery of Rs.6,150/- at the rate of interest at 12% per annum"?
6. On behalf of the plaintiff P.Ws.1 to 3 were examined and on behalf of the defendants D.W.1 was examined and on the plaintiff's side Exs.A-1 to A-3 were marked. Ex.A-1 is the promissory note executed by Late Karri Domburu for Rs.5,000/- in favour of the plaintiff; Ex.A-2 is the office copy of notice dated 9-2-1995 and Ex.A-3 is the acknowledgment dated 10-2-1995.
7. The Court below after appreciating the oral and the documentary evidence in paragraphs 5 and 6 had ultimately decreed the suit and the defendants, aggrieved by the same, had filed the present civil revision petition under Section 25 of the Provincial Small Cause Courts Act, 1887.
8. Sri. K. Manik Prabhu, the learned Counsel appearing for the revision petitioner-defendants, had contended that even if it is a small cause suit, since there is no prohibition in the Provincial Small Cause Courts Act, 1887, it is essential that the issues are to be framed for the purpose of putting the parties on guard on which relevant matters the evidence has to be adduced by the parties. The learned Counsel had drawn my attention to Section 17 of the Provincial Small Cause Courts Act, 1887 (hereafter referred to in short as the 'Act'). The learned Counsel also had submitted that even otherwise when specifically the plea of the small farmer had been taken by the defendants, no point for consideration was framed in this regard and no finding had been recorded. Thus, the approach of the Court below is totally erroneous, falling within the purview of Section 25 of the Act, and hence the revision has to be allowed. The learned Counsel also had placed reliance on a decision in C.I. Motors v. G.P. Shrivastava, AIR 1956 Bhopal 9.
9. Ms. Malathi, representing Mr. Ramalingaswamy, learned Counsel for the respondent-plaintiff, on the other hand contended that in a small cause suit since the trial contemplated is of summary nature what has to be recorded is only substance of the evidence and at the best to put the parties at issue, points for consideration may be framed and at any rate it cannot be said that the non-framing of points for consideration or non-framing of the issues will vitiate a Judgment rendered in a small cause suit. The learned Counsel also had drawn my attention to the detailed order made by the Court below while appreciating the evidence of P.Ws. 1 to 3. The learned Counsel further contended that inasmuch as the Court below had applied its mind and arrived at a conclusion, it cannot be said that the said Judgment is not according to law and hence it does not call for any interference under Section 25 of the Act.
10. Though the facts are simple, the question raised by Sri Manik Prabhu relating to framing of issues in Small Cause Suits is a matter of general importance. It is no doubt true that as pointed out by Ms. Malathi in the A.P. (Telangana Area) Small Cause Courts Act, 1313 Fasli in the schedule it is specified that the provisions of the Code of Civil Procedure, 1908 as specified below shall not apply to Courts of Small Causes and to the Courts invested with a jurisdiction of a Court of Small Causes and Sub-section (3) of the Schedule specifically specifies provisions relating to framing of issues. This is an Act governing only Telangana Area. The present suit is governed by the Provincial Small Cause Courts Act, 1887. The learned Counsel representing both the parties, however, were unable to point out any such specific exclusion under the Act. On the contrary, my attention was drawn to Section 17 of the Act, which reads as follows:
"17. Application of the Code of Civil Procedure:- (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of Judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the Judgment, or give such security for the performance of the decree or compliance with the Judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the Proviso to Sub-section (1), the security may be realised in manner provided by Section 145 of the-Code of Civil Procedure, 1908".
11. Order XIV of the Code of Civil Procedure deals with settlement of issues and determination of suit on issues of law or on issues agreed upon and Order XIV Rule 1 of CPC (hereafter referred to as 'Code') deals with framing of issues; Rule 2 -Judgment on issues; Rule 3 - Materials from which issues may be framed; Rule 4 - Court may examine witnesses or documents before framing issues; Rule 6 - Questions of fact or law may by agreement be stated in form of issues and Rule 7 - Court, if satisfied that agreement was executed in good faith, may pronounce Judgment.
12. In C.J. Motors v. G.P. Shrivastava (cited (1) supra), it was no doubt observed that the Judges of the Small Cause Courts should frame issues before recording evidence of parties so that they may know which matters are in dispute and on which points they have to adduce evidence and framing of issues is also necessary to narrow down the points in dispute. It is no doubt true that just like in Telangana Act, in the Act of 1887 also there is no specific exclusion relating to the framing of issues. Now the question is, whether the framing of issues even in a Small Cause Suit under the Act is mandatory or directory and whether the non-framing of issues will vitiate the Judgment?
13. I may observe here that whether the nomenclature which is used is the framing of issues or the framing of points for consideration, in my considered opinion it is always essential that even in a small cause suit the contentions and disputed questions raised by the parties should be framed either in the form of issues or in the form of points for consideration so as to enable the parties to let in evidence in support of their respective contentions. Hence, I am of the opinion that when a particular plea is raised and denied or a particular aspect is raised specifically in defence, such aspects should be framed either in the form of issues or in the form of points for consideration by even a Court of Small Causes governed by the Act.
14. Coming to the facts of the present case, the defendants had taken a specific plea that they are entitled to the benefits of Act 45 of 1987 and the Act 7 of 1977 and definitely it is a triable issue. No point for consideration in this regard had been framed and no finding had been recorded. In the said circumstances, it cannot be said that the impugned Judgment is in accordance with law within the meaning of Section 25 of the Act. Hence, I am of the opinion that the impugned Judgment suffers from material illegality and is liable to be set aside. But, however, I am inclined to set aside the impugned Judgment on the ground of non-framing of an important point for consideration. I deem it just and fit to remit the matter back to the Court below to frame a specific point for consideration on the aspect of plea of small farmer also and decide the same in accordance with law.
15. Before parting with the case, I may also observe that whether we call it either as framing of issues or as framing points for consideration, it is made clear that even for a Court of Small Causes it is mandatory to frame all the necessary issues or all the necessary points for consideration before proceeding to record evidence in the matter.
16. With the above observations, the civil revision petition is remitted back to the Court below to frame the necessary points for consideration and also to dispose of the matter in accordance with law as expeditiously as possible within a period of six months from the date of receipt of a copy of this order.
17. The Civil Revision Petition is allowed to the extent indicated above, but in the facts and circumstances of the case, no order as to costs.