2010 Supreme(Bom) 1432

In the High Court of Bombay at Nagpur
D.K. DESHMUKH & R.K. DESHPANDE
Radheshyam s/o Zumbarlal Chandak
Versus
The District Judge & Another
Writ Petition No. 4873 of 2006
Decided on : 05-10-2010

Headnote:Protection of Woman from Domestic Violence Act, 2005 - Sections 16, 17 and 26-Civil Procedure Code, 1908, Sections 7 and 9, Order L-Jurisdiction of Small Cause Court-Court of Small Causes established for a particular place or places-Ordinary original civil jurisdiction of a civil nature to be exercised by a civil Court under provisions of Civil Court Act stands excluded under Section 16 of Act, 1887 in respect of jurisdiction of a Court of Small Causes for trial of suits-Court of Small Causes shall have exclusive jurisdiction-It includes jurisdiction available under Section 26 of Act.-If a Court of Small Causes is established for a particular place or places, the ordinarily original civil jurisdiction of a civil nature to be exercised by a civil Court under the provisions of the Civil Court Act stands excluded under Section 16 of the Small Cause Courts Act in respect of the jurisdiction of a Court of Small Causes for trial of suits and it is the Court of Small Causes, which shall have exclusive jurisdiction. This could naturally include the jurisdiction available under Section 26 of the Small Cause Courts Act and the practice and procedure for trial of such suits shall be governed by the provisions of Section 17 of the Small Cause Courts Act. The application of the provision for trial of regular civil suit contained in the Code of Civil Procedure is excluded to the extent provided for under the provisions of Section 7 read with the provisions of Order L of the Code of Civil Procedure, which make the procedure for trial of suits by a Court of Small Causes summary in nature. There is neither any ambiguity nor confusion or problem in respect of the jurisdiction to be exercised by a Court of Small Causes constituted under Section 5 of the said Act.

       Civil Procedure Code, 1908 - Section 113 - Bombay Civil Courts Act, 1869, Section 28 - Provincial Small Cause Courts Act, 1887, Sections 4 and 26 - Reference case - Question of law - "Whether Court invested with small cause powers under Section 28 of Act 1869 can function as such and exercise unlimited jurisdiction under Chapter IV A-1 of Section 26 of Act 1887 without any ceiling on its pecuniary jurisdiction? - Held - A Civil Judge, conferred with power of Small Cause Courts under Section 28(1) of Act, 1869, can function as Small Cause Court to extent of pecuniary limits prescribed under Section 28(1) of Act, 1869 and shall not have power to entertain and decide suits covered by Section 26(1) of Act 1887, irrespective of valuation of such suits. - Court is not concerned with a case where a Court of Small Causes has been constituted for the local limits of District Amravati. Undisputedly, there is no Court of Small Causes established by the State Government, as contemplated by Section 5 of the Small Cause Courts Act. Court is concerned with a position where the High Court has, in is exercise of its powers under Section 28(1) of the Civil Courts Act, invested a Civil Judge, Junior Division, Amravati, with the jurisdiction of a Court of Small Causes for trial of such suits cognizable by a Court of Small Causes. Undisputedly, the suit in question has been registered as Small Cause Suit No. 5 of 2006 and it is valued for the purposes of court-fees and jurisdiction at Rs. 22,600/-, which is in excess of the pecuniary limits of jurisdiction under Section 28(1) of the Civil Courts Act. The question is, where the value of subject-matter of the suits or proceedings exceeds the pecuniary limit of rupees twelve thousand or rupees six thousand, as the case may be, specified under Section 28(1) of the Civil Courts Act, whether a Civil Judge invested with the jurisdiction of the Court of Small Causes by the High Court, for the trial of the suits cognizable by such Courts, shall have the jurisdiction to try such as a summary suit, that too irrespective of value of the subject-matter of such suit, in view of section 26 of the Small Causes Courts Act or it has to be tried as a regular suit in accordance with the provisions of the Code of Civil Procedure.

       Now turning to the judgment delivered by the learned Single Judge of this Court in Salimkhan ’s case, the facts of the case were that the suit for a decree for ejectment and mesne profits was passed by the Civil Judge, Senior Division, Achalpur, who was invested with the jurisdiction of a Court of Small Causes by the High Court in exercise of its powers under Section 28(1) of the Civil Courts Act to try the suit for the value upto Rs. 1,800/-. The suit was valued for the purposes of jurisdiction at Rs. 2,700/-. It was tried as a regular suit. The tenant preferred an appeal before the District Court. Before the District Court, it was not disputed that the Court of Civil Judge, Senior Division, Achalpur, had summary powers upto Rs. 1,800/- only and, therefore, it was decided as a regular suit. The question before the District Judge was that whether an appeal lay to the District Court under Section 96 of the Code of Civil Procedure only on the question of law. The learned District Judge decided the case both on the question of law as well as on facts. The appeal was dismissed, against which the tenant had preferred a writ petition before this Court.

       So far as the second part of the definition is concerned, it is "inclusive of any person exercising jurisdiction under the said Act in any such Court." The expression "any person" used therein speaks only of persons appointed as Presiding Officers, including the Additional Judges under Section 8 and the Registrar under Section 12 of the Small Cause Courts Act, to discharge the functions as a Judge. The expression "any such Court" referred therein again pertains only to "a Court of Small Causes" established under Section 5 of the said Act and not, to "a Civil Judge" invested with the jurisdiction of a Court of Small Causes by the High Court under Section 28(1) of the Civil Courts Act. The reasons for taking such views are that (i) a Civil Judge invested with the powers of a Court of Small Causes does not occupy the position as a Presiding Officer of a Court of Small Causes established under Section 5 of the Small Cause Courts Act, and (ii) there is no deeming provision either under the Small Cause Courts Act or under the Civil Courts Act to treat a Civil Judge in vested with the powers of Court of Small Causes under Section 28(1) of the Civil Courts Act as a Court of Small Causes established under Section 5 of the Small Cause Courts Act, and (iii) the scheme of the Act, as has been rightly pointed out on the basis of the provisions of Sections 4 to 33 of the Small Cause Courts Act, in the order of reference by the Single Judge, clearly makes out a distinction between "any person" exercising jurisdiction under the Act and "a Civil Judge" invested with the jurisdiction of a Court of Small Causes under Section 28(1) of the Civil Courts Act. In Court’s view, therefore, the judgment delivered by the learned Single Judge of this Court in Salimkhan’s case cannot be held to proceed on the correct proposition of law that a Civil Judge invested with the jurisdiction of a Court of Small Causes under Section 28(1) of the Civil Courts Act, was also a Court of Small Causes, as defined under Section 4 of the Small Cause Courts Act. The said view is, therefore, over-ruled.

        From the provisions pointed out above and the discussion followed, it is clear that the Small Cause Courts Act deals with the jurisdiction therein to be exercised either by a Court of Small Causes established under Section 5 of the said Act or by a Civil Judge invested with the jurisdiction of a Court of Small Causes by the High Court in exercise of its powers under Section 28(1) of the Civil Courts Act. If neither a Court of Small Causes is established at a particular place, nor has the High Court in exercise of its powers under Section 28(1) of the Civil Courts Act invested any Civil Judge with the jurisdiction of a Court of Small Causes for the trial of suits cognizable by such Courts, then obviously the Ordinary Original Civil Jurisdiction conferred upon the Civil Judge, Junior Division, or the Civil Judge, Senior Division, is available. However, in that event, such a suit, which is otherwise cognizable by a Court of Small Causes, would be tried by such Civil Judge as regular civil suit in accordance with the provisions of the Code of Civil Procedure, depending upon the pecuniary limits of its jurisdiction, as provided under Section 24 of the Civil Courts Act.

       If a Court of Small Causes is established for a particular place or places, the ordinary original civil jurisdiction of a civil nature to be exercised by a Civil Court under the provisions of the Civil Courts Act stands excluded under Section 16 of the Small Cause Courts Act in respect of the jurisdiction of a Court of Small Causes for trial of suits and it is the Court of Small Causes, which shall have exclusive jurisdiction. This would naturally include the jurisdiction available under Section 26 of the Small Cause Courts Act and the practice and procedure for trial of such suits shall be governed by the provisions of Section 17 of the Small Cause Courts Act. The application of the provision for trial of regular civil suit contained in the Code of Civil Procedure is excluded to the extent provided for under the provisions of Section 7 read with the provisions of Order L of the Code of Civil Procedure, which make the procedure for trial of suits by a Court of Small Causes summary in nature. There is neither any ambiguity nor confusion or problem in respect of the jurisdiction to be exercised by a Court of Small Causes constituted under Section 5 of the said Act.

       In view of the aforesaid discussion, Court answer the question of law, referred for Court’s decision, as under :

       A Civil Judge invested with the jurisdiction of a Court of Small Causes under Section 28(1) of the Bombay Civil Courts Act can function as a Court of Small Causes to the extent of pecuniary limits prescribed under Section 28(1) of the Bombay Civil Courts Act and it shall not have jurisdiction to entertain, try and decide the suits covered by Section 26(1) of the Provincial Small Cause Courts Act, irrespective of the value of the subject matter of such suits.

       Bombay Civil Courts Act, 1869 - Sections 24 and 28(1)-Jurisdiction of Civil Court-Ordinary original civil jurisdiction conferred upon Civil Judge, Senior Division and Civil Judge, Junior Division under Section 24 of Act-Cannot be read into provision of Section 28(1) of Act.-It is required to be seen that under the provisions of the Civil Courts Act, there is no pecuniary limit for exercise of ordinary original civil jurisdiction by a Civil Judge, Senior Division, as in view of Section 24 of the said Act, the jurisdiction of Civil Judge, Senior Division, extends to all original suits or proceedings of a civil nature and the jurisdiction of Civil Judge, Junior Division, extends to all suits or proceedings of a civil nature, wherein the subject-matter does not exceed its amount or value of Rs. one lakh. In contrast to this, the provision of Section 28(1) of the Civil Courts Act specifies the pecuniary limit of rupees twelve thousand for Civil Judge, Senior Division, and of rupees six thousand for Civil Judge, Junior Division, to exercise jurisdiction. In view of this, the ordinary original civil jurisdiction conferred upon Civil Judge, Senior Division, and Civil Judge, Junior Division, under Section 24 of the Civil Courts Act cannot be read into the provision of Section 28(1) of the said Act.

       Bombay Civil Courts Act, 1869 - Sections 24 and 28(1)-Provincial Small Cause Courts Act, 1887, Section 33- Civil suit to be cognizable by a Court of Small Causes-Civil suit not cognizable by same Court-Distinction between-Section 33 of Act, 1887 contemplates that through same Court exercises powers under Small Causes Courts Act and under Civil Procedure Code, it shall be treated as different Courts.-Section 33 of the Small Cause Courts Act deals with the application of the Act and the Code to Court so invested as to two Courts.

       The aforesaid provision clearly maintains the distinction between the suits of a civil nature to be cognizable by a Court of Small Causes and those not cognizable by a Court of Small Causes. It contemplates that though the same Court exercise powers under Small Cause Courts Act and under the Code of Civil Procedure, it shall be treated as different Courts for the said purposes.

       Bombay Civil Courts Act, 1869 - Section 28(1)-Powers of High Court-High Court, under Section 28 of Act cannot invest any Civil Judge with jurisdiction of a Court of Small Causes beyond pecuniary limits in that Section.-If the value of the subject-matter of the suit covered by Section 26(1) of the Small Cause Courts Act exceeds the pecuniary limits specified under Section 28(1) of the Civil Courts Act, then a Civil Judge invested with the jurisdiction of the Court of Small Causes shall not have jurisdiction to entertain, try any decide such suit, as a small cause suit of a summary nature, but it will have to be decided as a regular suit and the procedure for a deciding such suit will be governed by the Code of Civil Procedure and not by the procedure prescribed under the Small Cause Courts Act. The reason for this is that the High Court is not competent under Section 28(1) of the Civil Courts Act to invest any Civil Judge with the jurisdiction of a Court of Small Causes beyond the pecuniary limits specified in that section.