Bombay High Court
Dilip Murlidhar Lodiya vs Mohd. Azizul Haq Mohd. Abdul Haq on 8 February, 1989
Equivalent citations: AIR1990BOM228, AIR 1990 BOMBAY 228
ORDER
1. The order passed by the Second Joint Civil Judge, Junior Division, Akola on 31-10-88 rejecting the defendant's application for amendment of his written statement is challenged in this revision.
2. The plaintiff landlord (the present respondent) instituted a suit for eviction against his tenant-defendant (present petitioner). That suit is pending before the Civil Judge empowered under the Provincial Small Cause Courts Act. The defendant has already filed his written statement. However, on 26-9-88 the defendant filed an application for amendment. By this amendment he wants to make out a counter-claim. He wants to claim a permanent injunction restraining the plaintiff, his servants, relatives, friends etc., from creating any sort of obstruction in the user of the road by the defendant for all purposes including by bringing and taking out loaded carts, trucks etc.
3. This amendment was opposed by the other party. The trial Court, on hearing both the parties rejected this amendment. The reason for rejecting the claim was that the suit was pending before the Court of Small Causes and Sec. 7 of the Small Cause Courts Act does not empower the Small Causes Court to grant any injunction. According to the trial Court when the Court taking seisin of the case was not empowered to grant an injunction there was no scope for allowing the amendment introducing the counter-claim of injunction. The application was rejected on this ground. It is this order which is challenged in this revision.
4. Mr. Chandurkar, learned Advocate for the respondent raised a preliminary objection that the revision is not maintainable either under S. 115 of the Code of Civil Procedure or Sec. 25 of the Provincial Small Cause Courts Act. What he urged was that the revisional jurisdiction flowing from both these provisions is restricted to the case which has been decided by the subordinate Court. It is interesting to note at this stage that both these sections do not refer only to the decrees but also the orders. There are some orders which have a tendency to decide the rights and liabilities of the parties. Some orders may be purely interlocutory orders having no such tendency. The orders of the first type make a special category of themselves and there is law that has been developed so far that these orders are subject to revisional jurisdiction of the High Court. In view of this it is difficult to accept the arguments that the order in challenge being only an interlocutory order it is not susceptible to revisional jurisdiction of the Court.
5. Mr. Chandurkar, however, urged that even Section 7(b) does not extend the operation of S. 115 to the Small Cause Court. There is no doubt a force in this argument. But, it must be pointed out at this stage that S. 25 of the Provincial Small Cause Courts Act is a provision which is very much a part of that statute which vests revisional jurisdiction in the High Court. Interlocutory orders which have a tendency to decide the rights and liabilities of the parties, becomes susceptable to the revisional jurisdiction of the High Court under Section 25 of the Provincial Small Cause Courts Act. This Court, therefore, is competent to entertain this revision. The order challenged is thus susceptible to the revisional jurisdiction of this Court.
6. Coming to the merits Mr. Mehadiya, learned Advocate for the petitioner strenuously urged before me that the trial Court has committed an error of law in rejecting the application for amendment. He strenuously urged before me that a counter-claim has been recognized by the Civil Procedure Code and the intention in granting this recognition was to check the multifariousness of suits. The intention behind O. 8 may be laudable. But Order 8 does impose some limitations on the counter claim. I shall come to these restrictions a bit later.
7. To repeat it once again the original suit was brought by the plaintiff-landlord against his tenant-defendant for eviction and such allied reliefs. The suit has been registered and is pending before the Court which is vested with the jurisdiction under the Provincial Small Cause Courts Act. This suit has been instituted in 1987 i.e. long after coming into force the amendment to Provincial Small Cause Courts Act. Sec. 26(1) creates an exclusive jurisdiction in the Small Cause Court as far as the suits for possession by landlords against tenants or by licensor against licensee are concerned. No other Courts have jurisdiction to entertain such suits. The jurisdiction is not only enhanced but the limitations imposed on the Small Cause Courts by item No. 4(c) of Schedule II has also been removed by this amendment. In short, the Court of Small Causes or the Court empowered under the Provincial Small Cause Courts Act has exclusive jurisdiction to entertain and try suits for possession when such suits are instituted by the landlord against tenant or licensor against licensees. Sec. 16 of the Court of Small Causes bar the jurisdiction of other Courts from entertaining such suits.
8. On this background we have to proceed with the present controversy. The suit for eviction by a landlord against a tenant is pending before the Court which has been vested with the jurisdiction under the Provincial Small Cause Courts Act. No other Court can take cognizance of such matters except the specified Court. The limitations were imposed on the jurisdiction of the Small Causes Court and these limitations were detailed in Schedule II attached to the Provincial Small Cause Courts Act. Item No. 17 of Schedule II shows that a suit to obtain an injunction is excepted from the cognizance of the Court of Small Causes. Even S. 7 of the Code of Civil Procedure provides that certain provisions of the Code of Civil Procedure will not extend to the Courts constituted under the Provincial Small Cause Courts Act or to Courts exercising the jurisdiction of the Court of Small Causes. Under Cl. (b) the provisions of Ss. 9, 91 and 92, Ss. 94 and 95 in so far as they relate to the orders for attachment of immovable property, injunctions, appointment of receiver of immovable property and other interlocutory orders referred to in clause (e), S. 94 and S. 115 do not extend to the Court of Small Causes. Suffice it to say at this stage that the provisions of granting injunction, temporary or permanent do not extend to Small Cause Courts and this provision finds place in Section (7?) of the Civil Procedure Code itself.
9. Thus we have a forum which has been exclusively created for trial of particular suits. That forum under the statute suffers from infirmity so much so that it is unable to grant those other reliefs. It is before such forum that the defendant is coming with a counter-claim specifically seeking injunction. The question is, whether the Small Causes Court or the Court empowered under the Provincial Small Cause Courts Act would have power to allow the amendment which introduces a relief which it cannot grant. The whole dispute will be crystillised when the amendment as sought by the defendant is scanned.
10. Mr. Mehadia, learned Advocate for the petitioner urged before me that though the Court of Small Causes or the Court empowered under the Provincial Small Cause Courts Act is ordinarily incompetent to go into the question of title, it can still decide the question of title as provided in S. 26(b) of the Provincial Small Cause Courts Act. In fact, this issue is not so relevant for the decision of the present controversy. The defendant in this case is not denying the title of the plaintiff. Even though it is difficult to agree with the argument of Mr. Mehadia that the Small Causes Court is competent to decide even the title, it is enough to point out that we are not confronted with the question of title in this case. What we are confronted with is the counter-claim of injunction. Nothing in S. 26B of the Provincial Small Cause Courts Act can help the present petitioner.
11. Mr. Chandurkar, learned Advocate for the respondent invited my attention to the scheme of counter-claim enunciated in Rule 6(a) of Order 8 of the Code of Civil Procedure and particularly to the proviso to sub-rule (2) and proviso to sub-rule (1). The proviso to sub-rule (1) imposes limitation on the counter-claim itself inasmuch as the counterclaim cannot exceed the pecuniary limits of the jurisdiction. Mr. Chandurkar urged that law has imposed some restrictions on the counter-claim though the counter-claim has been recognised and the counter-claim has necessarily to be within the pecuniary limits of the jurisdiction of the Court which has taken a seisin over the matter. He urged before me that it is a pointer to the position that the counter-claim outside the jurisdiction of the Court (taking session over the matter) cannot even be allowed to be introduced. There is definitely a force in this argument of Mr. Chandurkar.
12. Mr. Mehadia urged before me that in any law amendment cannot be normally refused and as such the trial Court was not justified in rejecting the amendment. My attention was invited to ratio laid down in Benisham Mohanlal v. Mahadeo Tukaran, . In that case a Judge of the Small Causes Court permitted an amendment of the plaint which had the effect of converting the simple suit on the basis of relationship of landlord and tenant into a suit based on title, which cannot be tried in the Small Cause jurisdiction. This amendment came to be challenged before this Court. This Court upheld that amendment, However, the circumstances which prevailed in the present case and the circumstances prevailed in that case are quite different. In the reported ruling there was no case of exclusive jurisdiction. The Small Causes Court had jurisdiction to entertain the suits for ejectment subject to the limitations in item No. 4(a), (b) and (c) of Schedule II. That article has been deleted by the amendment and now the court of small causes has become court of exclusive jurisdiction so much so that the jurisdiction of the regular court has been barred. In these circumstances the ratio laid down as in the reported ruling cannot legitimately be applied to the present case.
13. Mr. Chandurkar invited my attention to the ratio laid down in Sahebrao Vithoba v. Bapurao Ravaji, where it was observed :--
"Under Order 8, Rule 6-A of the Civil Procedure Code, the defendant was bound to raise such claims before he had delivered his defence by written statement and not by amendment of the defence. That would be enough to reject such a claim. It is implicit that the counter claim necessarily must be concerning any right of claim in respect of cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit and be such which can be set up against the claim in suit. Unless these qualifications are satisfied, the same cannot be covered by Order 8, Rule 6-A. Totally different and divorced causes of action are not intended to be clubbed or grouped nor could, as such, be tried in one suit. The central consideration should be to find out the character of the claim and compare the same with the counter claim set up in defence. If such a counter claim should have relevance and concern as against the claim set out by the plaintiff, then it would be quite permissible to try the same along with the claim. Unless, it can be raised by way of defence to the claim in suit, although being of an independent entitlement, counter-claims cannot be tried along with the claim. Once, however, such relevance is established, entitlement follows, notwithstanding that the cause of action for it might have accrued even after the suit was filed. The counter claim sought to be raised by the defendant had no connection with the defence or with the cause of action pleaded. It sought to introduce an altogether different controversy, in that the plaintiff had encroached upon the property of the defendant to the extent of 16 Acres. That is no defence to claim nor can be a counter-claim against it."
As already pointed out the position prevailing in the present case is quite crystallised. The plaintiff claims eviction of a tenant on determination of the tenancy. The suit being instituted after 1-1-1985 has been apportioned to a court having exclusive jurisdiction to entertain the suits between landlords and tenants. The court is not competent to entertain the suit or claims for injunction. Even S. 7 of the Code of Civil Procedure specifically says that the provisions regarding injunctions in the C.P.C. do not extend to the court of small causes. It is in such suits before such specified forum that the defendant is coming with a counter claim which has nothing to do with the main plaint.
14. The trial court, in such circumstances was quite justified in rejecting the application. The revision against such application, therefore, fails as it is devoid of any merits.
15. The revision is hereby dismissed. Rule is discharged. There shall, however, be no order as to costs.
16. Revision dismissed.