Salimkhan vs Mohammad Ibrahimkhan

M.S. Deshpande, J.—This writ petition by the defendant is directed against the order passed by the District Judge, Amravati, dismissing his ''appeal from the decree of ejectment and mesne profits passed by the Civil Judge (Senior Division) Achalpur.

The respondent filed a suit on July 22, 1985 against the petitioner for possession of an open site on the allegation that it had been let out under a rent note dated September 1,1982, for a period of 11 months at a monthly rent of Rs. 225/- and that the petitioner had constructed a temporary structure for running hotel on the open site and though thereafter a notice was sent determining the lease, the plot was not vacated and he was,, therefore, entitled to possession and mesne profits. The petitioner denied that the lease was merely of an open plot, that according to him being of a structure and the rent-note having been executed by describing the property as an open plot merely to circumvent the provisions of the C.P. and Berar Letting of Houses and Rent Control Order (''Rent Control Order'' for short). The learned trial Judge after considering the evidence, held that the lease was only in respect of an open site, that the provisions of the Rent Control Order did not apply to the premises and as the lease was validly terminated by a notice, the respondent was entitled to possession Mid mesne profits.

The petitioner appealed to the District Court and apparently it was not disputed before the learned District Judge that as the claim was of a nature cognizable by the Court of Small Causes, but had been decided by the trial Court viz. the Court of the Civil Judge (Senior Division), Achalpur, which had summary powers upto Rs, 1800/- only, as a regular suit, because the valuation of the suit for the purposes of jurisdiction was Rs. 2700/-. The District Judge, therefore, held that an appeal lay to it u/s 96 of the CPC only on the question of law. In the view of the learned District Judge, the question of law was involved whether the. tenancy in question was governed by the provisions of the Rent Control Order and having regard to the evidence, as the lease was only in respect of an open plot, the provisions of the Rent Control Order did not apply to it. He also found that the bar of section 92 of the Evidence Act, was attracted in view of the execution of the rent-note, but even if that bar was lifted, the material on record showed that the lease was only in respect of an open plot. He, therefore, dismissed the appeal.

Two points were raised in this writ petition by Shri J. N. Chandurkar the learned counsel for the petitioner, the first being that in view of the amendment brought about by Maharashtra Act No. XXIV of 1984 which came into force from 1-1-1986, the trial Court had to decide the suit in accordance with the provisions of Chapter IV-A which was introduced by the amendment, irrespective of the pecuniary limits of his power conferred u/s 28 of the Bombay Civil Courts Act, and if this was so, secondly, an appeal lay as a matter of course to the District Court u/s 26A of the Provincial Small Cause Courts Act (as amended) and to such an appeal section 96 of the CPC would not apply.

The suit in question was instituted in the Court of the Civil Judge (Senior Division) Achalpur, who had been invested with powers to try small cause suits of the value upto Rs. 1800/- u/s 28 of the Bombay Civil Courts Act. u/s 4 of the Provincial Small Cause Courts Act, unless there is something repugnant in the subject or context, "Court of Small Causes" means a Court of Small Causes constituted under the Act, and includes any person exercising jurisdiction under the Act in any such Court. The combined effect of this section and section 28 of the Bombay Civil Courts Act, would be that the Civil Judge (Senior Division), Achalpur by virtue of the powers invested on him by the High Court will have the jurisdiction of a Court of Small Causes ordinarily upto a particular limit. Chapter IV-A of the Provincial Small Cause Courts Act, which was introduced by the Amending Act XXIV of 1984, creates a larger jurisdiction for entertaining the suits and proceedings which till the amendment could not be entertained by the Court of Small Causes and makes the orders and decrees of the Court of Small Causes subject to an appeal to the District Court. Sections 26 and 26A run as follows :

"26.(1) Notwithstanding anything contained elsewhere in this Act, but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the; recovery of the licence fee or charges or rent therefor irrespective of the value of the subject matter of such suits or proceedings.

(2.) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property or - of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, apply.

26A. (1) An appeal shall lie from a decree or order made by the Court of Small Causes exercising jurisdiction u/s 26, to the District Court.

(2) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be :

Provided that, in computing the period of limitation prescribed by this sub-section, the provisions contained in sections 4, 5 and 12 of the Limitation Act, 1963, shall, so far as may be apply,

(3) No further appeal shall lie against any decision in appeal under sub-section (1).

(4) The District Court may, for the purpose of satisfying itself that a decree or order made in any case decided by the Court of Small Causes was according to law; call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit."

Section 15 of the Provincial Small Cause Courts Act prohibits a Court of Small Causes from taking cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes, but subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed two thousand rupees shall" be cognizable by a Court of Small Causes. u/s 16, exclusive jurisdiction is conferred on the Court of Small Causes in respect of the suits cognizable by that Court save as expressly provided by this Act or by any other enactment for the time being in force. In view of the non-obstante clause, with which section 26 begins, evidently nothing to the contrary contained in sections 15 and 16 would prevent the Court of Small Causes from exercising the jurisdiction to entertain and trying the suits of the description mentioned in section 26(1). This means that neither the pecuniary limit mentioned in sub-section (2) of section 15, nor whatever is mentioned in second schedule would operate to affect the jurisdiction of the Court of Small Causes in respect of the suits to which section 26 refers. The effect would, therefore, be that whatever may be the pecuniary jurisdiction conferred on a Court of Small Causes u/s 28 of the Bombay Civil Courts Act, or section 15 of the Provincial Small Cause Courts Act, it shall have the jurisdiction to entertain and decide the category of suits enumerated in section 26 of the Provincial Small Cause Courts Act.

The trial Court has mentioned in the title of its judgment that as it had summary powers upto Rs. 1800/- the suit was being tried as regular one though it was a small cause suit. There is however, no dispute that the trial Court as a civil Judge (Senior Division) had been conferred with the jurisdiction of a Court of Small Causes and in view of what has been stated above, it had the jurisdiction to try the present suit which fell within section 26 of the Provincial Small Cause Courts Act. In this Court it was not disputed that, as the trial Court had inherent Jurisdiction to entertain the suit and decide it, whether it decided it as a small cause suit by following summary procedure or by following regular procedure, would not make any difference to. the ultimate result and the decree passed by it would not be open to challenge on the ground of want of jurisdiction. On the first question, therefore, it must be held that irrespective of the limit placed on the jurisdiction of the trial Court to take cognizance of the small cause suits upto particular value only, its jurisdiction to entertain the suits u/s 26 of the Provincial Small Cause Courts Act, would be unaffected and it would have the jurisdiction to entertain and decide such suits.

The next question is about the provisions under which an appeal can be entertained. Once the suit is decided u/s 26, it would follow that the unrestricted right of appeal both as to question of facts and law would be available u/s 26-A, the form of appeal being the District Court. To such an appeal the provisions of section 96 of the CPC would not apply. That would be clear from the text of section 96 itself which runs as follows:

"96 (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall, lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any. suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees."

The operation of sub-section (4) would be restricted only to the other suits enumerated in sections 15 and 16 of the Provincial Small Cause Courts Act and would have no application to suits u/s 26 of that Act and the District Court would have wider powers in respect of the suits entemplated by section 26, and decided under it and the second question raised by Shri Chandurkar would have to be answered accordingly.

The learned District Judge had held that his powers were restricted to only considering the questions of law in view of section 96 (4) of the Civil Procedure Code, but while deciding the appeal he has decided the questions of both law as well as facts and indeed though he has purported to exercise the powers u/s 96, since all the questions of law and facts have been considered and the decision has been rendered on merits, the mere reference to section 96 would not indicate that the powers u/s 26-A of the Provincial Small Cause Courts Act have not been exercised. Since there has been full consideration of the law as well as facts in the appeal interference under Article 227 of the Constitution would not be justified.

Shri Chandurkar urged that some time should now be granted to the petitioner for vacating the premises. Shri Palshikar the learned counsel for the respondent stated that he had no objection if reasonable time is granted. The petitioner is granted six months'' time to vacate the premises. Since an important question of law fell for consideration in the present case, there will be no order as to costs.