Dipen Mukherjee and Another vs Sm. Sandhyarani Chatterjee

Anil K. Sen, J.—This is an application u/s 24(5) of the CPC for transfer of a suit being Title Suit No. 703 of 1977 new pending in the City Civil Court at Calcutta from that court to the Court of Small Causes, Calcutta. Such transfer has been sought for on the ground that in view of the provisions of section 5(4) read with entry 17 of the First Schedule of the City Civil Court Act, 1953, the City Civil Court has no Jurisdiction to entertain and try the suit. We are told that on the point at issue there is divergence of views amongst the Judges of the City Civil Court at Calcutta and, therefore, it is necessary to resolve the dispute. Title Suit No. 703 of 1977 is a suit for recovery of possession of the suit premises, being Suit No. 3, second floor of premises No. 112, College Street, Calcutta, from a licensee - the license in whose favour is alleged to have been revoked. This suit is being contested by the defendants by filing a written statement. One amongst several defences taken is to the effect that the City Civil Court has no jurisdiction to entertain such a suit in view of the provisions of City Civil Court Act referred to hereinbefore. Material part of section 5 of the City Civil Court Act, 1953, provides as follows :

Jurisdiction - (1) The local limits of the jurisdiction of the City Civil Court shall be in the City of Calcutta....

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(4) The city Civil Court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule.

The relevant entry in the First Schedule relied on in support of the objection is entry No. 17 which reads as follows :

Suits and proceedings treble by the Small Cause Court.

The effect of section 5(4) read with entry. 17 of the First Schedule as aforesaid is that if a particular suit or a proceeding can bee entertained and tried by the Small Cause Court, then that court alone in given the jurisdiction to do so excluding the jurisdiction of the City Civil Court. The real test for exclusion u/s 5(4), therefore, is to determine whether the particular suit or proceeding is capable of being tried by the Small Cause Court.

In that context the short point which arises for our consideration is as to whether a suit for recovery of possession from a licensee when the license has been revoked, comes within the purview of entry 17 as above. Section 18 of the Presidency Small Cause Courts Act deals with jurisdiction of the Small Cause Court, Calcutta established there under. Section 18, however, is subject to the exceptions incorporated in section 19 and section 19 in Clauses (d) and (g) makes it clear that such a Small Cause Court has no jurisdiction to try suits for recovery of immovable property of suits for determination of any other right to or interest in immovable property. On the terms of these two provisions, it is clear that the. Small Cause Court has no jurisdiction to try a suit for recovery, of possession of immovable property which would necessarily include such a suit against a licensee as well. Therefore, the suit now pending before the City Civil Court cannot be triable by the Small Cause Court and hence the bar u/s 5(4) has got no application. On this simple reasoning the point raised by the. petitioners before us should be decided against them.

Mr. Mukherjee, however, has strongly relied on the provisions of section 41 of the Presidency Small Cause Courts Act. He has contended that under the said provision eviction of a licensee as in the present case can very well be obtained in a proceeding under that section. According to Mr. Mukherjee when recovery of possession of the suit property can be obtained in such a proceeding instituted against the licensee in the Small Cause Court no suit for the same relied can be entertained by the City Civil Court and that follows from entry 17 of the First Schedule read with section 5(4) of the City Civil Court Act, 1953. We have carefully considered this contention of Mr. Mukherjee but we are unable to accept this contention. It is true that the plaintiff licensor had two options open to her. She could have gone for a summary proceeding u/s 41 for recovery of possession by evicting the licensee upon an order for possession being obtained in a proceeding u/s 41 of the Presidency Small Cause Courts Act from the Small Cause Court. But at the same time she had the other option to go for a regular suit and obtain a decree for recovery of possession in respect of the immovable property. The provisions of the City Civil Court Act, 1953, have not taken away these alternative options nor do they provide for any bar because of an alternative remedy or mode of relief available to the plaintiff licensor u/s 41 of the Presidency Small Cause Courts Act. What section 5(4) specifically provides is that any suit or a proceeding which if initiated could have been entertained by Small Cause Court under the Presidency Small Cause Courts Act then such a suit or proceeding cannot be entertained by the City Civil Court. Therefore, in our opinion, the mere fact that similar relief could have been obtained by the plaintiff in a proceeding u/s 41 of the Presidency Small Cause Courts Act does not constitute a bar to the entertainment of the suit as framed in the present case. It is now well settled that a proceeding u/s 41 of the Presidency Small Cause Courts Act is not a suit and does not end in a decree. It remains a proceeding and a summary proceeding which again is subject to a suit on the title as prescribed by section49 of that Act; This being the position, we are unable to accept the contention of Mr. Mukherjee. It would be more pertinent to point out the incongruity of the situation which- would arise if we allow the prayer made in the application for transfer now before us. If we allow this prayer we transfer the suit on prayer for recovery of possession of immovable property to the Court of Small Causes notwithstanding the clear bar to the entertainment of such a suit by that court under the provisions of section 19 of that Act.

In the result, this application u/s 24(5) of the CPC fails and is dismissed. The Rule is discharged.

Sudhir Ranjan Roy, J.

I agree.