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Allahbad High Court
M.P.MEHROTRA
Trilok Singh - Appellant
Versus
Jamuna Devi - Respondent
Decided On : 11/01/1977
SMALL CAUSE COURT - JURISDICTION - SUIT FOR EVICTION OF TENANT - VALUE OF SUIT EXCEEDING RS. 5000/- - WHETHER TRIED AS REGULAR SUIT OR SUIT OF SMALL CAUSE NATURE - APPLICATION UNDER ORDER IX RULE 13 C. P. C. - WHETHER MAINTAINABLE - PROVIDER TO SECTION 17 OF THE PROVINCIAL SMALL CAUSE COURTS ACT - WHETHER APPLICABLE.
Fact of the Case:
A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the latter's tenancy had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. The suit was decreed ex parte. The defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore, Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance of the decree or compliance with the judgment as the court might, on a previous application made by him in this behalf would have directed.
Finding of the Court:
The court held that the suit was triable as a suit of the nature of Small Causes and the provisions of the Provincial Small Cause Courts Act would be applicable to the decree which was passed by the court below. The court further held that the proviso to Section 17 of the Provincial Small Cause Courts Act would be applicable to an application under Order IX, Rule 13, C. P. C. moved in a suit of the nature of Small Causes which is pending in a Court which has been invested with the jurisdiction to try the same under the provisions of Section 25 of the Bengal, Agra and Assam Civil Courts Act.
Issues: 1. Whether the suit was triable as a regular suit or a suit of the nature of Small Causes? 2. Whether the provisions of the Provincial Small Cause Courts Act would be applicable to the decree which was passed by the court below? 3. Whether the proviso to Section 17 of the Provincial Small Cause Courts Act would be applicable to an application under Order IX, Rule 13, C. P. C. moved in a suit of the nature of Small Causes which is pending in a Court which has been invested with the jurisdiction to try the same under the provisions of Section 25 of the Bengal, Agra and Assam Civil Courts Act?
Ratio Decidendi: 1. The court held that the suit was triable as a suit of the nature of Small Causes as the pecuniary limit of Rs. 5000/- laid down by the proviso added to Section 15 (3) of the Provincial Small Cause Courts Act by the Civil Laws Amendment Act, 1972 (U. P. Act No. XXXVII of 1972), does not apply to the jurisdiction of the District Judges and the Additional District Judges to try suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for the recovery from him of rent etc. where they have been conferred such jurisdiction in terms of Section 25 (2) of the Bengal, Agra and Assam Civil Courts Act after its amendment by the U. P. Civil Laws Amendment Act of 1972. 2. The court held that the provisions of the Provincial Small Cause Courts Act would be applicable to the decree which was passed by the court below as Section 32 of the Provincial Small Cause Courts Act lays down that 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. 3. The court held that the proviso to Section 17 of the Provincial Small Cause Courts Act would be applicable to an application under Order IX, Rule 13, C. P. C. moved in a suit of the nature of Small Causes which is pending in a Court which has been invested with the jurisdiction to try the same under the provisions of Section 25 of the Bengal, Agra and Assam Civil Courts Act as Section 17 (1) including its proviso lays down the procedure to be followed in the Courts of Small Causes and by virtue of Section 32 (1) Cl. (c), the practice and procedure of the Courts of Small Causes applies to the 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.
Final Decision: The appeal was dismissed.
2. The brief facts are these. A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the latter s tenancy had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. The suit was decreed ex parte. The defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore, Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance of the decree or compliance with the judgment as the court might, on a previous application made by him in this behalf would have directed. Since admittedly this was not done, therefore, the application under Order IX. Rule 13, C. P. C. was not maintainable the court below viz. the Addl. Dist. Judge, Varanasi upheld the said objection and rejected the application. Hence, the defendant has now come up in the instant appeal and in support and opposition thereof I have heard the learned counsel for the parties.
3. Sri Siddheshwari Prasad, learned counsel for the defendant-appellant raised the following contententions :
(i) In view of the valuation of the Suit amounting to Rs. 8995/- the suit could not be tried as a suit of the nature of Small Causes and it could be tried only as a regular suit and, on that basis, the provisions of the Provincial Small Cause Courts Act would not be applicable to the decree which was passed by the court below.
(ii) Even if the suit were held to be triable as a suit of the nature of Small Causes, still on a true interpretation of the relevant provisions of the Provincial Small Cause Courts Act, the proviso to Sec. 17 would not be attracted, inasmuch as, Section 17 and its proviso should be interpreted to be applicable only to regular courts of Small Causes and not to Courts which have been invested with the jurisdiction to try suits of the nature of Small Causes.
(iii) In the facts of the instant case, the appellant should not be made to suffer on account of the mistake which was committed by the trial court.
4. On the other hand, Sri Laxmi Behari, learned counsel for the plaintiffs-respondents, has supported the order under appeal and has questioned the maintainability of the appeal itself on the ground that as the order in question was passed in a suit which was bound to be treated as a suit of the nature of Small Causes, therefore, no appeal would lie and, if at all, only a revision could lie under Section 25 of the Provincial Small Cause Courts Act. He has also contended that it will make no difference even if the contention of Sri Sidheshwari Prasad were to be accepted that the suit was really tried by the court below on its regular side and not as a suit of the nature of Small Causes.
5. Before dealing with the rival contentions raised at the Bar. I think, I should draw attention to the relevant statutory provisions. First, I shall notice the provisions of the Provincial Small Cause Courts Act. Section 4 defines Court of Small Causes in the following words :
" 4. Definition. - In this Act, unless there is something repugnant in the subject or context " Court of Small Causes" means a Court of Small Causes constituted under this Act, and includes any person exercising jurisdiction under this Act in any such court."
Section 5
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