Balwant Singh Talwar vs Swami Bala Nand

M.P. Saxena, J.—This is a Defendant''s revision application u/s 115 of the CPC against the order dated 10-12-74 passed by the learned District Judge, Dehradun transferring regular suit No. 324 of 1968 pending in the court of Munsif, Dehradun to the court of the Judge Small Causes, Dehradun.

Briefly stated the facts giving rise to this revision application are that the Plaintiff-opposite party filed a suit for the recovery of rent and ejectment against the Defendant-applicant on 22-6-68 in the Court of the Munsif, Dehradun. It was numbered as 324 of 1968. Under the old U.P. Rent Control and Eviction Act (Act III of 1947) such suits used to be filed in the Court of the Munsif. Admittedly the valuation of the suit was more than Rs. 1000/. It was decreed Ex-parte on 23-5-1972 on the basis of an affidavit alleged to have been filed by the opposite party with the permission of the Court. The Defendant-applicant applied for setting aside the Ex-parte decree but his application was rejected on 18-9-1972. He filed an appeal against that order but it was also dismissed on 25-12-1972. Thereafter he filed a revision application before the learned District Judge but it was rejected on 3-8-73. The Defendant applicant came up in Revision before this Court. It was Civil Revision No. 779 of 1973 which was allowed on 16-9-1974 and the ex-parte decree dated 23-5-1972 was set aside-. The case was remanded to the Court of the Munsif Dehradun for disposal according to law. Meanwhile the U.P. Civil Laws Amendment Act 1972, came into force and according to it, the suit became cognizable by the Court of Small Causes, but it could not be transferred because this Court had remanded it to the court of the Munsif. Therefore, an application was moved in this Court for clarification of the previous order. In that application the following order was passed:

If the suit is one triable by the Judge of the court of small causes, the District Judge Dehradun, will transfer it from the court of the Munsif to that of the Small Causes.

Accordingly, the Plaintiff-opposite party moved an application before the learned District Judge, Dehradun u/s 24 read with Section 151 of the CPC for transfer of the suit to the Court of the Judge Small Cause particularly in view of the fact that its valuation was above Rs. 1000/-and the learned Munsif had no jurisdiction to try it as a small cause suit. That application was resisted by the Defendant-applicant on a number of grounds. After considering all the points the learned District Judge was of opinion that the suit could be transferred to the court of the Judge Small Causes to be tried as a small cause suit. Accordingly the application was allowed and the suit was transferred to a small causes court for disposal. It is against this order that the revision application has been filed.

The Civil Laws (Amendment) Act, 1972, admittedly came into force on 16-9-72. Section 9 of it reads as follows:

Any suit of the nature referred to in the proviso to Sub-section (1) and Sub-section (2) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, (Where its value exceeds two thousand rupees, or as the case may be, one thousand rupees or not) or the proviso to Sub-section (3) of Section 15 of the Provincial Small Cause Court Act, 1887, instituted before the date of commencement of this Act in any court other than a court of Small Causes or a court of Civil Judge or Munsif exercising jurisdiction of a Judge of a court of Small Causes and pending in that court immediately before the said date, not being a suit in which the recording of oral evidence for any party has commenced or conducted before the said date, shall upon the conferment of jurisdiction or enhanced pecuniary jurisdiction or a Civil Judge, Munsif, District Judge, Additional District Judge or on a court of Small Causes under the said provisions, stand transfered to such court and shall be decided by that court.

Obviously it makes it clear that the suits instituted before the date of commencement of the Civil Laws (Amendment)Act and pending in that Court immediately before the said date in which the recording of oral evidence had not commenced shall be tried by the small cause court. There is no denying the fact that this suit was instituted on 22-6-1968, i.e. before the commencement of the Act. The question which arises for consideration is whether it was pending or should be treated as fending on 16-9-1972 when the Act came into force. The learned Counsel for the revisionist has vehemently contended that the suit was decreed ex-parte on 23-5-72 and ceased to be pending thereafter. It became pending again from 16-9-74, when the ex-parte decree was set aside by this Court. Therefore it could not be transferred to the Small Cause Court u/s 9 of the Act. In support of this contention reliance has been placed on certain cases. One of them is the case Raj Chander Gupta and Another Vs. Ramesh Kishore, in which an order for attachment before judgment was passed. It was held that on dismissal of the suit either on merit or for default all ancillary orders such as attatchment etc. automatically cease and do not revive. Para 13 of it reads as follows:

There does not seem to be any reasonable basis for making a distinction between the dismissal of suit for default and a dismissal of suit on merits. If the Plaintiff succeeds in getting the suit restored in one case and the dismissal of suit is set saide on appeal in the other, all that happens is that the suit becomes alive. It can not be disputed that once a suit is dismissed either in default or on merits, it ceases to exist in the eye of law and, therefore, any ancillary orders passed in the suit would automatically come to an end and cease to operate.

It is urged that if after decree or dismissal the suit ceases to exist it can not said to be pending at that time. The reply to this argument is to be found in the aforesaid observation itself. It says that when the order of dismissal (or ex-parte decree) is set aside the suit "became alive", meaning thereby that during this period it remained in a dormant state and came to life again when it became alive it will in the eye of law be treated to have remained pending even in this period.

Another case cited is of Brij Bhushan Lal Bansal v. Nathu Ram AIR 1973 All. 505. That was a case in which the order of the Commissioner in revision relating to the grant of permission u/s 3 of the old Act III of 1947 and of the State Govt. upholding that order were quashed by a single Judge of the High Court on 5-11-1971. The appeal against that order was dismissed after coming into force of Act XIII of 1972 and the revision was sent back for rehearing. The question arose whether the revision should be deemed to be pending before the commencement of Act XIII of 1972 i.e. before 15-7-72. It was held that it became pending on 5-11-71. Obviously there could be no controversy in that case because the order of the single Judge dated 5-11-71 was confirmed. It was wholly immaterial whether the revision was held to be pending from the date of institution or from 5-11-71, because in either case it would have been pending before the commencement of Act XIII of 1972 and was to be heard by the District Judge in view of the provisions of Section 43(2)(m) of Act XIII of 1972. The words "became pending" used in this case are significant and connote that in the eye of law the revision remained in a dormant state after decision but it revived on 5-11-71. Therefore, during the intervening period it will be treated to have remained pending. I am, therefore, in judgment that from 23-5-72 to 16-9-74 the suit remained in a dormant shape but the moment the ex-parte decree was set aside it became pending and will be regarded or treated to have remained pending during this period. This view finds support from several cases. In Dilawar Singh Vs. The Gram Samaj and Others, the position was that before the aggrieved party could challenge the order of the Settlement Officer (Consolidation) by a revision u/s 48 of the U.P. Consolidation of Holdings Act a notification u/s 52 was issued. The revision was dismissed on the ground that after notification u/s 52 the revision could not be entertained. A Bench of this Court took the view that u/s 48 of the U.P. Consolidation of Holdings Act the applicant had a right to approach the Deputy Director (Consolidation). Before his right to approach to a superior court came to an end notification u/s 52 was issued. That notification did not have the effect of destroying the right the Petitioner had. The proceeding initiated by the Appellant u/s 12 of the Consolidation of Holdings Act had not come to an end. It was still pending when the notification u/s 52 was issued and was in a dormant shape. The right to approach the superior court could be exercised only after an adverse judgment or order was passed and the moment that right was exercised the original proceedings became pending.

A similar point cropped up for consideration in the case of Suraj Bhan Verma v. Hari Om S.A. No. 1815 of 1972 D/- 21-5-1975 by Hon K.N. Seth, J. That was a case in which the Plaintiff-Respondent filed a suit for ejectment of the Defendant-Appellant and for recovery of arrears of rent, mesne profits etc. The trial court decreed the suit for ejectment and for recovery of arrears of rent and pendentelite and future damages. The Defendant filed an appeal which was dismissed by the learned Second Additional Civil Judge, Agra, on 12-5-1972 and the decree of the trial court was confirmed. Before the filing of the second appeal the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, (hereinafter referred to as the Act) came into force from 15-7-1972. The second appeal was filed on 27-7-1972. The question arose whether the Appellant could claim the benefit of Sections 39 and 40 of the new Act. It may be mentioned that Section 39 applies to suits and Section 40 applies to appeals pending on the date of the commencement of the said Act. Evidently the second appeal was filed after the commencement of the Act. Seth, J. observed:

It is true that no appeal in fact was pending when the Act came into force but the right of the Appellant to approach this Court still subsisted and when the appeal was actually filed the proceedings initiated by the suit, which had become dormant after the decision of the lower appellate court, revived and the suit became pending. This conclusion is based on the principle that if under a statute a party has a right to approach the superior court, the proceeding can be said to be pending till the right to exercise the right of approaching the superior court subsists and so long that right subsists it can not be said that the proceeding has come to an end. Till that right is exercised the right only remains dormant and when that right is exercised the original proceeding becomes pending.

The learned Counsel for the revisionist have vehemently contended that an appeal or a revision is a projection of the suit and the proceedings may be treated as pending till the appeal or revision is decided, but this principle will not apply to restoration proceedings which are wholly independent of the suit. The contention is amply negatived by the case of Ram Chandra Gupta v. Ramesh Kishore (ibid) in which it has been held that the effect of restoration of the suit and setting aside of decree in appeal is the same. It is needless to say that a provision of law should be so interpreted that it is in hormony with all the situations and does not give rise to any inconsistency. Where letter of law is to be carried out the spirit of law, as far as possible, should not be allowed to lie prostrate and bleeding. It should be so interpreted that both the letter and the spirit of law are carried out. An ex-parte decree passed in a suit also remains in a dormant state from the date of the decree upto the date it is set aside. When the decree is set aside the suit becomes pending, and will be treated to have remained pending between the date of the decree and the date when it was restored. In the case of Senior Superintendent of R.M.S. Cochin v. V.K. Gopi Nath AIR 1973 SCC 867 and S.A. Venkataraman Vs. The State, it has been held that if the precise words used are plain and unambiguous the court is bound to construe them in their ordinary sense and "in construing the provisions of a statute it is essential for a court, in the first instance, to give effect to the natural meaning of the words used therein, if these words are clear enough". In construing the words it is also the duty of the court to see that the purpose of the Act is not defeated. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, prescribes speedy remedy for eviction. The Civil Laws (Amendment) Act 1972, makes it clear that the provisions of Act XIII of 1972 will apply to pending suits provided recording of oral evidence has not commenced. In the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, also provision is made for the trial of such suits (vide Section 43(r)). Therefore, the word "pending" can not be construed in a narrow sense. This view finds support from various cases. In Bonhebar v. Dhirendra Nath Roy AIR 1957 Cal 132 the words "pending proceedings" came up for consideration. It was held that a liberal and wide interpretation should be given to these words so as to cover not merely execution proceedings pending on the appointed date but also decree which has been filed on or before the appointed date but in respect of which execution petition had not been filed on the appointed date.

In Lakkaju Satyanarayana Vs. Majati Venkatarattamma and Another, also a similar question arose. That was a case under the Madras Buildings (Lease and Control) Amendment Act of 1951. Section 20 of this Act reads as follows:

Any application made, appeals preferred or other proceedings instituted under the said Act and pending at the commencement of this Act shall be disposed of as if this Act had been in force at the time when such application, appeal or proceeding was made, preferred or instituted.

That was a case in which both the original application for eviction as well as the appeal preferred against the order of the Rent Controller to the Subordinate Judge were disposed of long before Madras Act VIII of 1951 came into force. An application for a writ of certiorari was made under Article 226 of the Constitution to quash the order of the Subordinate Judge. It was held that this appeal preferred to the Subordinate Judge must be deemed to be pending so long as the application to quash the order was pending in the High Court. It was held that as the decision in the appeal is against at large it loses its finality the moment the High Court issues rule nisi on the application for certiorari. It also supports the contention that a suit is to be treated as pending between the date of the decree and the date when the ex-parte decree is set aside. In this view of the matter the ex-parte decree in the instant case was no doubt set aside on 16-9-74 and the suit became pending from that date, but in the eye of law it will be regarded or treated to have remained pending even during the period it remained dormant. Therefore, the second requirement of Section 9 is also fulfilled.

Another question which arises for consideration is whether recording of oral evidence had started in the case so that there could be a bar to the transfer of the suit to the small cause court side. Admittedly only an affidavit was filed by the Plaintiff-opposite party with the permission of the court and the ex-parte decree was passed on its basis. An affidavit filed in a case cannot be regarded as "Recording of oral evidence." It may best be like an oral evidence but by no stretch of imagination it can be said that recording of oral evidence had started or oral evidence had been recorded. Besides it, when the ex-parte decree was set-aside, the affidavit ceased to be evidence in the case. In Mst. Lakshmi Devi Vs. Roongta and Co. and Others, an exparte decree was set aside but the Defendant once again remained absent. Second time the court passed a decree on merit relying upon the evidence which was already recorded in previous absence of the Defendant. It was held that the court could not do so. The ex-parte decree having been set aside, the Defendants became entitled to be relegated back to the stage at which they were absent and could insist that every thing which had been done in their absence should again be done in their presence. In the instant case the Defendant-revisionist had remained absent when the affidavit was filed and the ex-parte decree was passed. Therefore, when the ex-parte decree has been set aside, he has become entitled to insist that every thing which has been done in his absence should be done again in his presence. On this score also it cannot be said that recording of oral evidence had commenced. For all these reasons I am in judgment that the learned District Judge was right in transferring the suit for trial by the Judge Small Cause Court.

The revision application is accordingly dismissed with costs to the opposite party. The stay order, if any is vacated. The record be sent back to the court concerned for expeditious disposal of the case.