Babu Ram vs The Additional District Judge and Another

K.C. Agarwal, J.—Finding a conflict between Sudarshan Pal Singh v. Second Additional District Judge 1980 2 RCC 379 and Smt. Kamini Khare v. Ram Naresh 1979 ALR 547 Hon. N.D. Ojha, J., has referred this case for decision by a larger Bench.

This writ petition has been preferred by a tenant against an order of the Additional District judge refusing to admit additional evidence in the revision filed before him u/s 25 of the Provincial Small Cause Courts Act on the ground that he had no jurisdiction to take evidence in revision.

For deciding the point referred, it is necessary to point out the scope of powers conferred by Section 25 of the Provincial Small Cause Courts Act. The Provincial Small Cause Courts Act had been enacted in 1887 with a view to obtain speedy and cheep justice, and early decision in small causes. Section 5 of that Act conferred power on the State Government to establish Courts of Small Causes at any place within the territories under its administration. In deciding a suit, the Small Cause Court is required by Section 17 of the Act to follow the procedure prescribed in the CPC save in so far as otherwise provided by that Code or by this Act. Section 7 and Order L of the CPC are relevant in this regard. Whereas Section 7 mentions some of the provisions of the Code which would not be applicable to the courts constituted under the Provincial Small Cause Courts Act, 1887, Order L gives the list of various Orders and Rules which would not apply to it. Amongst the Orders not extended to the Courts under the Provincial Small Cause Courts Act, one of them is Order XII. In fact, the provisions of the Provincial Small Cause Courts Act and that of the CPC are supplementary to each other.

Order XII Rule 27 of the CPC confers right on a court of appeal to admit additional evidence. But, since that Order has expressly been excluded from application to Provincial Small Cause Courts Act, neither Order XLI Rule 27 in terms nor in principle can be applied for taking additional evidence. So far as a revision u/s 25 of the Provincial Small Cause Courts Act is concerned, the Court has a much narrower power than that of the first appellate court. u/s 25, the Court can interfere only when the decree or order made in any case decided by a court of Small Causes was not according to law. Order XLI Rule 27 cannot, therefore, be pressed into service for admitting additional evidence in revision u/s 23 of the Provincial Small Cause Courts Act.

The question that next arises is whether additional evidence can be admitted in a case u/s 25 by a court in exercise of its inherent jurisdiction. Section 17, as observed above, requires the procedure laid down by the CPC to be followed in all suits and in all proceedings pending out of such suits. Section 151 is not one of the provisions mentioned in the list excluded from application to the courts constituted under the Small Cause Courts Act, 1887. Hence, Section 151, since it has not been excluded, applies, which preserves the inherent powers of the court. Every court is constituted for the purpose of doing justice according to law and must, therefore, be deemed to possess as a necessary corollary, and has inherent in lis very constitution, all such powers as may be necessary to do the right and undo the wrong in the course of the administration of justice 6 Ind App 393 (PC). In fact, Section 151 does not confer but only saves the inherent jurisdiction.

In The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, , the Supreme Court had an occasion to consider the nature and scope of inherent powers of the Court. In doing so, it referred to the following passage with approval;

The inherent power has its roots in necessity and its breath is co-extensive with the necessity.

(See Theoritical ''Basis of Inherent Powers Doctrine- Text import prepared by Jim or Carrign-Publication of National College of the State of judiciary U. S. A.).

An inherent power is right, ability or faculty of doing a thing without its being delivered or conferred. The inherent power of a Court to do justice in fact, flows from the well recognised principle of equity, justice and good conscience which applies to courts deciding a suit under the Small Cause Courts Act, Section 40 of the Bengal, Agra and Assam Civil Courts Act, 1887, gives a list of various sections of the said Act applicable to Courts of Small Causes. One of the, sections mentioned in Section 40 is Section 37. Sub-section (2) of Section 37, which is relevant for our purposes, is quoted below:

In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience.

A Court of Small Causes, therefore, is also required to keep in view justice, equity and good conscience while deciding a suit. The inherent power, which has been preserved by Section 151, is only one of the many aspects of the aforesaid principle of justice, equity and good conscience, which is to be kept in view while administering justice between the parties.

In Padam Sen and Another Vs. The State of Uttar Pradesh, the Supreme Court has held:

The inherent powers of the Supreme Court, are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 when the exercise of those powers is in conflict with what has been expressly provided in the Code or against the notifications of the Legislature. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.

To the same effect is the view taken by the Supreme Court in Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, .

After a review of the various provisions of the Provincial Small Cause Courts Act and the Code of Civil Procedure, we find that there is no prohibition contained in either of the two enactments expressly or impliedly providing for the bar of admitting additional evidence. What Order L Rule 1(b) did by excluding Order XII was only that this provision wilt not apply to revisions But, the fact that Order XII Rule 27 has been excluded does not lead to the conclusion that the Court cannot in exercise of its inherent power admit additional evidence when the ends of justice requires the same to be done,

In Zafar Uddin Ahmad Vs. L. Madan Mohan, and Ram Bharose Vs. Ganga Singh , this Court held that a court of Small Causes has inherent powers. Therefore, there is no doubt that the Court of Small Causes can in exercise of its inherent power admit additional evidence. However, when that power could be exercised and in what manner, that is a different question and that should not be mixed up with the jurisdiction of the Court to admit additional evidence.

A revision u/s 25 can be entertained on a question of law The Court has no jurisdiction to interfere with findings of fact. u/s 25, therefore, the Court cannot admit additional evidence for re-appraising the evidence or for setting aside a finding of fact. It is incorrect to suggest that considerations which prevail in regard to the reception of additional evidence in a first appeal should apply or should prevail in regard to its reception in a revision. In a revision, the Court change of circumstances, the Court takes notice of the same. If the Court finds that the matter is no longer in controversy, the court also takes notice of such events. If the property which is the subject matter of suit is no longer available the court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice."

From what we have said above, we find that a Court u/s 25 can take into account subsequent or new facts which had emerged since the giving of the decision by the Judge of the Small Causes. In taking the new fact into account the court may sometime be called upon to amend the pleadings or take documentary or oral evidence and for that purpose the proper course for the court u/s 25 would be to set aside the order of the Judge Small Causes and send the matter back to him for deciding the rights of the parties on its basis. In Balai Chandra v. Sheodhari Jatav (Supra), the Supreme Court held:

Once pleadings are permitted to be amended which bring into focus altogether new or disputed questions of fact, new or fresh disputed questions of fact, which have to be resolved by additional evidence, that would be necessary to be led. The function between the appreciation of evidence, more properly to be undertaken by the trial court...

Out of the decisions relied upon by the learned Counsel for the Petitioner, one of them was reported in Smt. Kamini Khare v. Ram Naresh (supra). In this case the learned Judge held that no additional evidence could be admitted in revision u/s 25. We wish to add as and when any occasion which has been narrated by us above arises, the additional evidence may be admitted but in that event also the revising court will not be entitled to set aside a finding of fact.

For what we have said above, we are unable to find any real conflict between Sudarshan Pal Singh v. IInd Addl. District Judge (Supra) and Smt. Kamini Khare v. Ham Naresh (Supra). We have made an endeavour to explain the position of law above. These cases have to be read in the light of the observations made by us in this judgment.

Coming to the merits of the case, we do not find any error in the judgment of the Additional District Judge rejecting the application for admitting additional evidence.

In the result, the writ petition fails and Is dismissed with cost. The stay order is discharged.