Haju Charan Ghosh vs Laxmi Narayan Jana

Chunder, J.—This Rule was issued at the instance of the Defendant in suit, for house rent and electric charges in the Court of Small Causes of Serampore, The Defendant claimed, a set of on the ground that he had done some remodelling work

Two points have been taken in the present case. The first is that evidence was not recorded properly by the trial court and the second is that the trial Court was wrong in rejecting the claim of set off on the ground that court-fees had not been paid

The second point is decided very easily. The court not only rejected the claim of Set off on the ground that no court-fee had been paid, but also on the ground that the claim for a set off had not been at all proved and also that it was not an ascertained sum which was claimed. The learned Judge has further remarked, that the unshakable evidence on the Plaintiff''s side showed that, the work of remodelling was done by the Plaintiff.

No doubt, if the court-fee is payable on a set off as it is u/s 8(b) read with Section 12 of the Court-fee Act, before a claim can be rejected on the ground of non-payment of court-fee, time must be allowed under the Code of Civil Procedure, and then if the court-fee is not still paid then the court can reject the claim. In the present case that was not the only ground, other grounds still exist. Therefore, there is no reason to interfere on this ground.

As regards the recording of evidence under the law, it seems not to have been discussed in any decision of this Court subsequent to 1904 when the old CPC Code, and not the present one, was in force. The question is how far the law still remains the same. u/s 17 of the Provincial Small Cause Courts Act, 1887, it is laid down that the procedure prescribed in the CPC shall, save in so far as otherwise, provided by that Code or by this Act be the procedure followed by a court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. When the old CPC was in force, Section 5 of that Act and Section 189 laid down what procedure had to be followed by courts of Small Causes in the Province. Now, Section 9 of the present CPC of 1908 exempts Provincial Small Cause Courts from certain provisions of the Code. In Section 9 no mention is made about the mode of recording evidence. Under Order L of the present CPC an exemption is made in Rule 1, el. (b), where it is said that Order XVIII, Rules 5 to 12, shall not apply to Provincial Small Cause Courts. Therefore, it is evident that as far as recording of evidence goes, neither Section 9 of the present Code nor O.L. exempts the operation of Rule. 13 of Order XVIII of the CPC which will apply because of Section 17 of the Provincial Small Cause Courts Act. Rule 13 of Order XVIII lays down that in cases in which an appeal is not allowed, the Judge is to make a memorandum of the substance of the evidence. In cases decided by the courts of Small Causes appeal is not allowed. therefore, the law as it now stands is that Judges of the courts of Small Causes in the Province are required to make a memorandum of the evidence of each of the witnesses as the trial proceeds, and that it will form a part of the record after having been signed by the Judge. The law is not therefore substantially different from the law that prevailed before the present Code came into force.

Mr. Ghosh has contended that although the Judge has made a memorandum of the evidence, it is really of no help to any one. On the other hand, Mr. Mukherji, appearing on behalf of the Opposite party, has contended that the memorandum is sufficient for the purpose of understanding the case and the points involved and in deciding the same as far as the Court of Small Causes is concerned. He has (sic)evidence, and as the matter was a very simple one I am not prepared to say that the memorandum of evidence would not be sufficient in the present case.

Under the circumstances there is no ground to interfere. The Rule is accordingly discharged, each-party paying his own costs.