Mir Hyder Ali Sahib vs Amirudin Sahib and Others

Ananthakrishna Aiyar, J.—The plaintiff is the appellant in this appeal. On the allegation that the first defendant was the plaintiff''s tenant, and

that the tenancy had been determined by notice to quit, the plaintiff applied to the Madras Court of Small Causes by Petition No, 17 of 1921

under Chapter VII of the Presidency Small Cause Courts Act to direct the defendant to deliver possession of the properties to the plaintiff. The

Court passed an order directing the 1st defendant to vacate the premises by the 26th of March, 1921 and ordered that, in default, possession

would be delivered through Court on 31st March, 1921. Then the plaintiff took out a warrant for possession (M.P. No. 715 of 1921) and when

the bailiff of the Court of Small Causes went to the premises to deliver possession to the plaintiff he was obstructed by defendants 2 and 3 who set

up right in themselves and also denied tenancy under the plaintiff. Thereupon the Court dismissed the plaintiff''s Petition No. 715 of 1921 on 28th

October, 1921. The plaintiff accordingly filed Original Suit No. 217 of 1924 on the file of the City Civil Court, Madras, on 25th April, 1924

against the three defendants to recover possession of the property on the strength of his title and also claimed mesne profits. Defendants 2 and 3

contested the suit raising among other pleas the plea of limitation. Issues 4 and 7 ran as follows:

Issue 4.--Is the suit barred under Order 21, Rule 03 of the Civil Procedure Code?

Issue 7.--Is the suit barred by limitation?

The learned City Civil Judge dismissed the suit holding that the suit was barred by limitation, and he did not try the merits of the case. The

question that arises for decision in this appeal is whether that decision is correct.

The line of argument pursued by the learned City Civil Judge may be stated in his own words:

The Small Cause Courts Act expressly provided in Section 48, under Chapter VII headed ''Recovery of possession of Immovable properties,''

that in all proceedings under that Chapter the Small Cause Courts shall, as far as possible, and, except as hereinafter otherwise provided, follow

the procedure prescribed for the Court of the first instance by the Civil Procedure Code. Though in general, therefore, the CPC may not be

applicable to the Small Cause Courts unless and until its provisions are reproduced in the Small Cause Courts Act or in the rules made thereunder,

an exception is made with reference to Chapter VII of the Small Cause Courts Act. Under that Chapter, then, the CPC is expressly declared as

the Act to be followed, and it is a well-known practice of the Small Cause Court that Rules 98 to 103 of Order 21 of the CPC are constantly

invoked and actually enforced in the Small Cause Court as often as they are in the City Civil Court.... Therefore, Rules 262 to 267 corresponding

to Rules 98 to 103 of Order 21, Civil Procedure Code, are still applicable to the Small Cause Court. The only other contention that was put

forward was the age-long argument that an ejectment application made in the Small Cause Court is a different thing from a suit and an order

passed therein is a different thing from a decree and, therefore, Article 11 (a) of the Limitation Act does not apply to such a suit. Though such a

proceeding is called ''an application'' and the decision made in it is called an order, the said order corresponds and answers more to the description

given of a ''decree'' in the CPC than to the term ''order.'' It is the final adjudication of the litigation pending before the Court. What we are directly

concerned with now is not a decree of a Civil Court terminating a suit or a decision of the Small Cause Court similarly terminating a suit but an

order subsequently made in execution proceedings in connection with an obstruction raised. The said order whether made by a Court of Original

Jurisdiction like the City Civil Court or promulgated by the Small Cause Court is in both cases passed under the CPC and is the order expressly

referred to in Article 11 (a) of the Limitation Act and it is in respect of such orders that a period of one year is fixed.... There is no reason for

drawing hair-splitting distinctions between an order in obstruction proceedings made in the Small Cause Courts and exactly similar order made in

the same class of suits in the City Civil Court and not those passed by the Small Cause Court I find that Article 11 (a) of the Limitation Act applies

and that plaintiff''s suit for possession which has been brought more than one year from the date of that order is therefore out of time and is

consequently liable to be dismissed.

Mr. M.S. Venkatarama Aiyar, the learned Vakil for the appellant, argued that the learned City Civil Judge was wrong in his reasoning on the

question of limitation and that Article 11 (a) was inapplicable to the case. We agree with his contention. Before Article 11 (a) of the Limitation Act

could be invoked it should be shown that there was ""a decree for possession of Immovable property"" or that Immovable property was ""sold in

execution of a decree."" Decree is defined in Section 2 (ii) of the CPC as the formal expression of an adjudication...conclusively determining the

rights of the parties with regard to all or any of the matters in controversy in the suit. Therefore without a ""suit"" there could not be a decree within

the definition of the Code. Now we have to consider whether the proceedings taken under Ch. VII of the Presidency Small Cause Courts Act

could be said to be a suit and the decision of the Court thereon could be said to be a decree within the meaning of the Civil Procedure Code.

Section 41 of the Presidency Small Cause Courts Act enacts that a person may apply to the Court for a summons against the occupant under

certain circumstances;...that person is called the applicant. Sections 45 and 46 speak of a suit which could be instituted by any person deeming

himself aggrieved by the acts of the applicant, and Section 47 uses the word application with reference to proceedings taken u/s 41 in

contradistinction to suits. Section 19 of the Act enacts that the Small Cause Courts shall have no jurisdiction in suits for recovery of possession of

Immovable properties and in suits for the determination of any other right or interest in Immovable property. Finally, Section 49 provides....

Recovery of the possession of any Immovable property under this Chapter shall be no bar to the institution of a suit in the High Court for trying the

title thereto.

The recent amendment effected by Madras Act III of 1927 gives jurisdiction to the City Civil Court also to try such suits. The provisions of the

Act thus make it clear that proceedings under Ch. VII of the Act do not constitute a suit within the meaning of the Code and that decisions passed

under that Chapter are not decrees within the meaning of the Civil Procedure Code.

The matter is also concluded by decided cases. In P.T. Krishnaswami Chetti Vs. The Natal Emigration Board, Sir Arthur Collins, C.J., and

Shephard, J., held that an application under Ch. VII was not a suit within the meaning of Section 22. In M. Doraswami Iyengar Vs. K. Narayana

Aiyangar and Others, the present learned Chief Justice, sitting with Ramesam, J., says as follows:

What is cognizable by the Small Cause Court is merely an application. Order 6, Rule 3 of the rules for the Presidency Small Cause Courts no

doubt says that an application u/s 41, Presidency Small Cause Courts Act shall be in the form of a plaint, but on this ground the application does

not become a suit.

The matter is fully discussed by the learned Chief Justice in the recent case reported in Manicka Chatty v. Kuppuswami Naicker (1926) 25

L.W. 115. After stating that the Small Cause Courts Act deliberately provided for summary remedy for possession without prejudice to questions

of title in a higher tribunal, the learned Chief Justice proceeded to state as follows:

It is clear to my mind that proceedings under Chapter VII of the Small Cause Courts Act are not suits within the meaning of Act V of 1916.

Indeed language is carefully chosen to indicate that they are not suits but summary orders which can be enforced without prejudice to the result of

suits properly so described.

This is the view that has been held by the Bombay High Court also. See Ramakriskna v. Haji Dawood ILR (1907) B. 259 Framroz Dosabhai

v. Dalsukhbhai Fulchand ILR (1920) B. 972 and Bai Meherbhai v. Pherozshaw Sorabji ILR (1927) B. 885.

The learned vakil for the respondent contended that it did not matter how the proceedings arose whether by an application or by a plaint and

relied on the decision of the Privy Council in 26 CWN 713 (Privy Council) where their Lordships held that the decision by the Court of a dispute

as to the title to receive compensation money under the Land Acquisition Act rendered the question of title res judicata in a subsequent suit

between the parties to the dispute. But a reference to the judgment of their Lordships makes it clear that that decision has no bearing on the

present case. At page 330 their Lordships observe as follows:

How the proceedings were commenced is a matter that is not material provided that they were instituted in the manner that gave the Court

jurisdiction, for they ended in a decree made by the High Court, and appealable to this Board.... It is not competent for the Court, in the case of

the same question arising between the same parties to review a previous decision, no longer open to appeal, given by another Court having

jurisdiction to try the second case. If the decision was wrong, it ought to have been appealed from in due time.

It is clear that the decision is relevant only to a plea of res judicata and has no bearing on the present case where there is no plea of res

judicata.

We must therefore hold that the proceedings instituted under Chapter VII of the Presidency Small Cause Courts Act are not ""suits"" within the

meaning of the Civil Procedure Code. Consequently having regard to the wording of Article 11 (a) of the Limitation Act, the said Article 11 (a)

could not be held to bar the present case.

But Mr. K.S. Jayarama Aiyar, the learned Vakil for the respondent, wanted to support the decree of the Lower Court dismissing the suit on

another ground, namely, that the proper article of the Limitation Act applicable to the present case is Article 13 and that the suit should be held to

be barred under that article though the applicability of that article was not discussed by the Lower Court.

Article 13 of the Limitation Act provides a period of one year for a suit to alter or set aside a decision or order of a Civil Court in any

proceedings other than a suit, the time from which the period is to commence being the date of the final decision or order in the case of a Court

competent to determine it finally. After consideration, we have come to the conclusion that Article 13 could not apply to the present suit. In the first

place it could not be said that the present suit is ""to alter or set aside"" a decision or order within the meaning of that article. As pointed out in

Manicka Chetty v. Kuppuswami Naicker (1926) 25 L.W. 115, the Small Cause Courts Act deliberately provides for summary remedies for

possession without prejudice to the trial of questions of title in a higher tribunal.

In this connection we may refer to the distinction that exists between orders passed under Order 21, CPC dealing with objections raised to the

attachment of properties and those relating to resistance to the delivery of possession on the one hand, and orders passed under Ch. VII,

Presidency Small Cause Courts Act on the other. With reference to orders passed under Order 21, CPC mentioned above, there is an enquiry

and adjudication however summary of the rights of parties. See Order 21, Rules 59 and 63 and Rules 99 and 101, whereas as regards orders

passed under Ch. VII of the Presidency Small Cause Courts Act there is neither enquiry nor adjudication with reference to the title of the parties.

There could be no decision or order by the Small Cause Court relating to the question of title, and consequently in the present suit which is

brought to try the question of title there is no necessity to alter or set aside any decision or order passed under Ch. VII. It should also be noticed

that Section 49 of the Act provides that

recovery of the possession of any Immovable property under this Chapter (Ch. VII) shall be no bar to the institution of a suit in the High Court for

trying the title thereto.

In the face of the provisions of that section, it is difficult to hold that the present suit should be considered as one to alter or set aside a decision

or order in any proceeding under Ch. VII of the Act. We may refer to the case of Pearson v. Glazebrook (1867) L.R. 3 Ex. 27 where Martin, B.,

observed as follows at p. 29:

It seems to me that the Act (19 and 20 Vic. 108) shows on the face of it that it applies only to a clear case of landlord and tenant. A summary

remedy is given to the landlord; but if it turns out mat there is reasonable ground for supposing that a question of title will arise, the power and

jurisdiction of the County Court is gone.

Pigott, B., said:

The County Court Judge being of opinion that a question of title arose declined to adjudicate. I think the Judge has gone exactly to the right point.

Having heard the claim and the defence of the respective parties, the Judge comes to the conclusion that a question of title is involved; and if he had

proceeded further he must have tried and determined a question of title and not a mere question of landlord and tenant.

It follows, therefore, that as the Presidency Small Cause Court in proceedings under Ch. VII had no jurisdiction to decide questions of title,

none of the orders passed under Ch. VII could be regarded as a ""decision or order"" on the question of title and there being in law no ""decision or

order"" on the question of title, there is no necessity in the present suit to alter or set aside any such decision or order and consequently Article 13 of

the Limitation Act has no application and does not bar the present suit.

Reference may be made to the decision of the Privy Council reported in (1901) L.R. 28 I.A. 203 (Privy Council) . u/s 295, Civil Procedure

Code, proceeds of execution sale are to be divided rateably among decree-holders; but the section provides:

If all or any such assets be paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund

(he assets.

It was contended that Article 13 of the Limitation Act applied to the suit contemplated by that section. The Privy Council overruling the

contention observed as follows:

It is to be observed that the same section of the CPC which authorised the order for payment to Lalachand authorises also the present suit by the

appellants. The 29th section, while providing that the Judge under whose authority the sale takes place shall distribute the proceeds, provides also

that if all or any of such assets be paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to

refund the assets. It seems to their Lordships, therefore, that the present suit is in no sense an action to set aside the order of distribution of the 7th

February, 1888 and that the order does not stand in the way of the present suit. The scheme of Section 295 is rather to enable the Judge as a

matter of administration to distribute the price according to what seemed at the time to be the rights of parties without this distribution importing a

conclusive adjudication on those rights which may be subsequently readjusted by a suit such as the present.

A Full Bench of the Calcutta High Court decided in Laknarain Singh v. Ranee Nunja Koer (1867) 7 W.R. 199 : Beng. L.R. 633 that

a summary order made under Act XIX of 1841 and intended only to affect the question of possession did not operate as a bar to a regular suit to

try the title and that such suits might be brought within 12 years.

It was therefore argued that Clause 5 of Section 1 of the Limitation Act XIV of 1851 (which provided a period of one year for ""suits"" to alter

or set aside summary decisions or orders of any character the period of one year to commence from the date of the final decision, award, or order

in the case) applied to the suit brought to try the question of title. Sir Barnes Peacock, C.J., in delivering the judgment of the Full Bench observed

as follows:

Section 17 of Act XIX of 1841 provided that nothing in that Act contained shall be any impediment to the bringing of a regular suit either by the

party whose application may have been rejected, before or after citing the party in possession, or by the party who may have been evicted from

the possession under the Act. If the summary order made under the Act is to be no impediment to bringing a regular suit there is no necessity for

setting aside that order. Then the question is within what time is the regular suit to be brought to try the title to land and to be put into possession of

it? That summary order cannot be pleaded or set up as a bar to the maintenance of the suit to try the title and to be put into possession under that

title. Clause 12, Section 1 of Act XIV of 1859 fixes the period of limitation in suits for the recovery of Immovable property or of any interest to

Immovable property to which no other provision of that Act applies at 12 years. We think then that the period of limitation applicable in such a suit

as this is 12 years and not one year.

We think that the reasoning of that Full Bench decision would apply equally to the present case.

The appellant''s vakil referred to Section 9 of the Specific Relief Act as analogous to Section 49 of the Presidency Small Cause Courts Act.

He argued that Section 9 of the Specific Relief Act to the effect that nothing in that section shall bar any person from suing to establish his title to

such property and to recover possession thereof was similar to Section 49 of the Presidency Small Cause Courts Act. He contended that a suit

contemplated by Section 9 of the Specific Relief Act was governed by the 12 years rule (Mitra on Limitation, Vol. II, page 895, 5th Ed.).

Similarly, he urged that the present suit also should be held to be governed by the 12 years rule. But that argument does not help us in the

construction of Article 13 of the Limitation Act, since Article 13 could not possibly apply to a suit contemplated by Section 9 of the Specific Relief

Act. Stress was also laid on behalf of the appellant on the wordings of the third column of Article 13, namely, ""the date of the final decision or

order in the case by a Court competent to determine it finally."" The words ""by a Court competent to determine it finally "" were inserted by Act IX

of 1871, evidently owing to the decision of the Calcutta High Court in Musammat Obea Unnissa v. Baldeo Narain Singh (1867) 7 W.R. 151. Sir

Barnes Peacock, C.J. and Bayley, J., there held that the final decision or order contemplated by Clause 5, Section 1 of the Limitation Act XIV of

1859 was a final decision of the Court which had competent jurisdiction to determine the case finally and not the order of a Court superior to such

Court dismissing an appeal from the decision of such Court for want of jurisdiction. It should also be noted that the words in question were added

by Act IX of 1871, and the subsequent Limitation Acts not to column one of the article but to the third column which relates to the time from which

period begins to run. No decisions of any High Court holding that either Article 11 (a) or Article 13 applied to a suit like the present was brought

to our notice. The present suit is in time whether the proper article applicable be Article 120 or Article 144.

No doubt, the policy of the law would seem to be to prescribe only a short period of limitation for re-opening summary adjudications by

means of a fresh suit. While fully alive to the said considerations we cannot lose sight of the fact that in cases like the present there is no

adjudication at all of the title of the parties. The principle accordingly would not seem to apply to suits like the present. On the other hand we have

the decision of the Full Bench of the Calcutta High Court (Laknarain Singh v. Ranee Nunja Koer (1867) 7 W.R. 199 : Beng. L.R. (Sup.) 633

(F.B.) ) passed in 1867 to the effect that the period of limitation applicable to similar suits is the ordinary period of twelve years, and so far as we

are aware that view has not been questioned. On the other hand West and Nanabai Haridas, JJ., followed the said decisions in Babaji v. Anna

(1873) 10 Bom. H.C.R. 479. See also Sivaji Yesji Chawan v. The Collector of Ralnagiri ILR (1886) Bom. 429. We are accordingly of opinion

that the decision of the learned City Civil Judge on the question of limitation cannot be supported. The appeal is accordingly allowed and the

decree of the Lower Court reversed and the suit remanded for disposal according to law. All costs hitherto to abide the result. Court-fee paid on

the memorandum of appeal to be refunded to the appellant.

Murray Coutts Trotter, Kt., C.J.

I agree.