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1983 Supreme(Cal) 168
HIGH COURT OF CALCUTTA
A.M. PAL, J.
Monoranjan Sinha - Appellant
Versus
G C Barret - Respondent
Decided on : Jun 22, 1983
R.N. Mitra, Subhas Chandra Basu, Sudhis Das Gupta, Tarun Chattejee.
The provisions of the Small Causes Court Act and the Manual of the Small Causes Court are pari materia with those of the CPC, and therefore, the provisions of Order 9 Rule 13 of the CPC are applicable to proceedings before the Small Causes Court.
Headnote:
SMALL CAUSES COURT ACT - SECTION 8, ORDER 51 - CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - PRESIDENCY SMALL CAUSES COURT MANUAL - CHAPTER IX RULE 15 - APPLICABILITY OF CIVIL PROCEDURE CODE TO SMALL CAUSES COURT PROCEEDINGS - VALIDITY OF APPLICATION UNDER ORDER 9 RULE 13 - SCOPE OF JUDICIAL REVIEW IN CIVIL REVISION - ASSESSMENT OF EVIDENCE BY TRIAL COURT.
Fact of the Case:
The plaintiff filed a suit for eviction of the tenant from the premises after the expiry of a registered lease. Summons were served on the tenant, who refused to accept them. The suit was decreed ex parte, and possession was given to the plaintiff. The tenant filed an application under Order 9 Rule 13 of the Code of Civil Procedure (CPC) to set aside the ex parte decree, which was rejected by the Small Causes Court. The tenant then filed a revision petition before the High Court, which remanded the matter back to the Small Causes Court for reconsideration.
Finding of the Court:
The High Court held that the application under Order 9 Rule 13 was maintainable before the Small Causes Court, as the provisions of the Small Causes Court Act and the Manual of the Small Causes Court were pari materia with those of the CPC. The Court also held that the trial court had complied with the directions given by the High Court in its earlier order and had reassessed the evidence before passing the impugned judgment.
Issues: 1. Whether the application under Order 9 Rule 13 of the CPC was maintainable before the Small Causes Court? 2. Whether the trial court had complied with the directions given by the High Court in its earlier order?
Ratio Decidendi: 1. The High Court held that the Small Causes Court Act and the Manual of the Small Causes Court were pari materia with the CPC, and therefore, the provisions of Order 9 Rule 13 of the CPC were applicable to proceedings before the Small Causes Court. The Court also held that the trial court had not committed any illegality or irregularity in entertaining the application under Order 9 Rule 13. 2. The High Court held that the trial court had complied with the directions given by the High Court in its earlier order by reassessing the evidence before passing the impugned judgment.
Final Decision: The High Court dismissed the civil revision petition and upheld the judgment of the Small Causes Court.
1. THIS application arises out of a judgment and order passed by the learned Judge, Second Bench, Small causes Court, allowing an application for a new trial on contest. The petitioner (the plaintiff) instituted the suit being Suit No. 1213 of 1970 before the Second Bench of the small Causes Court at Calcutta for eviction of the tenant from the said premises on the ground that the registered lease dated 15th August, 1853 expired by efflux of time on 14th of August, 1969.
2. SUMMONS that was sent to the opposite party no. 1 came back, with the report "unwilling to take delivery". Thereafter, the summons was again served by registered post and came with the postal remark 'refused' on 12th June, 1970. On 23rd june, 1970 the suit was decreed ex pane and possession was given on 31st July, 1970 by police help. On 4th August, 1970 an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the opposite party no. 1. It is the case of the plaintiff that the opposite party took certain amount of money from the petitioner for giving up possession of the premises and granted receipt therefore which has been marked 'a' to the present petition. The plaintiff's case is that there was an agreement by and between the landlord and the tenant In consideration of payment of certain amount of money that the tenant would abandon the possession of the said premises and the landlord sought leave during the hearing of the application to be allowed to cross-examine the tenant on that point and that prayer was rejected by the Judge of the Small Causes Court and the matter came up before Mr. Justice Sinha in revision and His Lordship directed that the landlord would be allowed to cross-examine the tenant on that agreement and remanded the matter to the Court of Small Causes to deal with it as per the direction given by his Lordship.
On 20th March, 1983 the application under Order 9 Rule 13 which was sent back by Sinha, J: was rejected by the Court of Small Causes.
3. THE matter came up again on revision this time before Mr. Justice Maitra. Maitra, j. who remitted back the matter to the court of Small Causes over again to deal with it in accordance with the provisions of law with an observation "the subsequent conduct was wholly irrelevant where the defendant has prayed for setting aside the ex-parte decree on the ground that summons was not duly served. The learned judge did not say that the evidence of the pw's could not be believed. We cannot assume that the implication that Court arrived at a finding that the evidence of PW's could not be believed. 'The application which was not remanded was heard by the learned Judge, Small Causes Court and was allowed directing a new trial as stated hereinbefore.
4. MR. Sudhis Dasgupta appearing for the appellant contended before me that provisions of Civil Procedure Code do not apply in the proceedings before the Presidency small Causes Court and. referred to me section 8 and also Order 51 of the Code of civil Procedure to support his contention. He argued that proceeding as initiated purported to be made under Order 9 Rub 13 of CPC was without jurisdiction and order passed therein had no legal effect.
I have considered the relevant provisions of the Code of Civil Procedure including those referred to by Mr. Dasgupta and in my view that contention of Mr. Sudish dasgupta is not acceptable at least for the present case for the grounds following :
5. THE language of the manual of the Court of Small Causes contained in Chapter ix, Rule 15 deals with setting aside of the exparte decree. Practically it is in the same with the language as contained under order 9 Rule 13 of the Code of Civil Procedure; only because the application has been entitled as one under Order 9, Rule 13 of Civil Procedure Code will not make it irretrievably defective. The same evidence is to be adduced and the same consideration is to be applied in such a case with same legal implication be it initiated under order 9, Ru
