Laxmi Kant Upadhyay vs Dev Narayan Mishra

B.K. Rathi, J.—This first appeal has been filed against the judgment and decree dated 24.7.2001 passed by Additional District Judge, Allahabad, in Suit No. 38 of 1986 by which the suit for eviction from the shop in dispute and for recovery of arrears of rent has been decreed. At the time of admission of the appeal, Sri O.P. Gupta, learned counsel for the respondent appeared and raised a preliminary objection that this appeal is not maintainable. On this objection, it was ordered that the record be summoned and thereafter it be listed for admission. The record of the case has been received. 1 also called for the report from the District Judge, Allahabad, regarding the nature of the suit, who has sent a report that this suit was registered as regular suit in register Form No. 3 maintained for regular suits. The original register Form No. 3 maintained for regular suit in the court of District Judge in which it was registered has also been sent, which shows that this suit was registered as regular suit. The question, therefore. is whether the first appeal u/s 96. C.P.C. is maintainable or a revision u/s 25, Provincial Small Causes Courts Act could be filed.

I have heard Sri Ravi Kiran Jain, senior advocate for the appellant and Sri O.P. Gupta, learned counsel for the respondent.

The suit has been titled by plaintiff-respondent as regular suit and has been filed in the court of District Judge. Allahabad. The relief claimed in the suit is for eviction of the appellant from the shop in dispute and for recovery of arrears of rent. The valuation of the suit is Rs. 12,850. The classification of the suit as mentioned by Munsarim on the back of the plaint is that it is suit for ejectment and rent.

From the above facts borne out from the records, it is clear that the suit was filed as regular suit and was registered as such. There is also no dispute about the fact that the suit is of the nature of small causes triable by Judge Small Cause Court. There is no dispute that after amendment in the Provincial Small Causes Courts Act and Bengal. Agra and Assam Civil Courts Act, the present suit is triable as Small Cause suit. The suit upto the valuation of Rs. 25,000 are triable by Judge Small Causes/Civil Judge and above the same are triable by District Judge/Additional District Judge.

It has been contended by learned counsel for the plaintiff-respondent that the suit was treated as small cause suit and according to the provisions of Order V, Rule 5, C.P.C., the date was fixed for final disposal immediately after the suit was registered. The summons were sent for final disposal of the suit as is apparent from the order sheet dated 17.9.1986 ; that, therefore, it was treated as small cause suit.

It is also argued by Sri O.P. Gupta. learned counsel for the respondent that there is custom in the district of Allahabad of registering a small cause suit in the register Form No. 3 of original suits. However, this argument does not lead us anywhere, as there is no evidence regarding it. It is true that at the first instance the summons were sent for final disposal of the suit, but subsequently the procedure prescribed for small causes suit was not followed. The issues in this case were framed on 21.3.1988. The memorandum of evidence was not prepared but the evidence of the witnesses was recorded word to word. The decree of the regular suit has been prepared and the decree on the proforma of the small cause suit has not been prepared. Therefore, from the above facts no inference could be drawn that it was a small cause suit.

The next argument of Sri O.P. Gupta, learned counsel for the respondent that even if the suit was instituted and tried as regular suit. It will not change the nature of the suit and the suits of present nature, according to law, are triable by the Judge, Small Cause. I have already stated that no doubt could be entertained regarding the fact that the suit of the present nature was triable at the date when the suit was filed as a suit of nature of small cause.

The learned counsel for the respondent has referred to the decision in Trilok Singh Vs. Smt. Jamuna Devi and Another, . It has been held in this case that if a suit of the nature of small causes is filed in the Court specially invested with the jurisdiction to try the suit u/s 25(2) of Bengal, Agra and Assam Civil Courts Act. It is not obligatory to state the said fact in the title of the plaint nor it is necessary that in the body of the plaint there should be such a recital.

The other case referred to is Kukur Sahu Vs. Bibi Salihan, In this case, it was observed that where the suit is decided by Munsif and it is not mentioned that it is being tried by Judge Small Causes Courts, even then no appeal will lie if the suit is of the nature of small causes.

In Gopalkrishna Nayakar v. Madhavanayaki Ammal and Ors AIR 1937 Mad 227, it was observed that the suit of small causes does not lose its character as such if mistakenly it is transferred and tried as a regular suit and no appeal will lie.

Similar view was taken in A.S. Gilani Vs. Maharaj Sir Pateshwari Parshad Singh, . It was observed that small causes suit tried as ordinary suit by the Court having small causes jurisdiction. The nature of the suit will remain as small causes suit.

In the case of Maung Tin v. Kyinnahon AIR 1930 Rang 139. it was held that where the same Judge is invested with the powers of Township Court and the Small Causes Court and tries the suit as Township Court even then no appeal will lie as the character of the suit will remain as small cause suit.

As against this Sri Ravi Kiran Jain, learned senior advocate has argued that the suit was instituted as a regular suit which was registered as such and also tried as such. Therefore, a regular decree has been passed and the appeal u/s 96. C.P.C. is maintainable. He has referred to the certain decisions. The first case is of Full Bench decision of this Court in Bisheshwar Prasad Gautam Vs. Dr. R.K. Agarwal, . In this case, the suit was filed before the enforcement of U.P. Civil Laws Amendment Act. 1972. According to the Section 9 of the Act, the suit should have been transferred from the regular court to the court of Judge, Small Causes Courts. However, by mistake it was not transferred and no objection as to the jurisdiction was raised. On these facts, it was held that it continued to retain its nature, namely. Small Causes, hence second appeal fs Incompetent u/s 102, C.P.C.

The other case referred to is Lala Hart Shyam v. Mangal Prasad AIR 1983 All 275 (DB). In this case, the suit was filed for recovery of Rs. 1,360 and filed in the Court of Munsif, Allahabad. The objection regarding the jurisdiction was not raised. The suit was decreed. It was held that the decree is not nullity for the reason that the Munsif has no jurisdiction to try the suit.

The another decision referred to is again a Full Bench decision of this Court in Manzurul Haq and Anr. v. Hakim Mohsin All Reliance has been placed on the observation that the Court of Small Causes is the court of preferential jurisdiction and not of exclusive jurisdiction. On its basis, it has been argued that the suit was not filed in the court of preferential jurisdiction and, therefore, the nature of the suit is of regular suit. In this case the suit was filed in the court of Munsif in an area where there was no court of small causes. Therefore. It was held that the Munsif has no Jurisdiction to entertain and decide the suit though the suit is of the nature of small causes suit. The following observation of the Court is material. "It only loses Jurisdiction when a court of preferential Jurisdiction exists."

After carefully considering the case law cited above. I am of the view that the suit is no doubt a suit of the nature of small causes suit. It can also not be disputed as it was filed, registered and tried as regular suit. However, even then it will not lose its character and will remain a suit of the nature of the small causes. Therefore, no appeal u/s 96, C.P.C. is maintainable.

I, accordingly, decide that the appeal is not maintainable. However, the appeal has wrongly been filed for the reason that the suit was registered and tried as regular suit. Therefore, the appellant is permitted to convert this appeal into revision u/s 25 of Provincial Small Causes Courts Act. The necessary steps may be taken. The eviction of the appellant from the disputed shop shall remain stayed for two months from today.