Esthappan v. Mathai Anna — 1952 DIGILAW 106 (KER)

Judgment :- 1. This is a revision petition filed by the plaintiff in Small Cause Suit No. 58 of 1124 on the file of the District Munsiff's Court at Meenachil. The claim in the suit was for recovery of a sum of Rs. 60/- from the defendants, stated to be the value of 150 leaves alleged to have been cut and removed by the defendants from the Palmyrah trees belonging to the plaintiff. On a consideration of the evidence adduced by the plaintiff, the lower Court found that it was not proved that the defendants had cut and removed the 150 leaves as alleged by the plaintiff and accordingly dismissed the suit. It is this decision that is sought to be revised. 2. On behalf of the respondents-defendants a preliminary objection has been raised that this revision petition is unsustainable because the revisional jurisdiction conferred on the High Court by S. 115 of the Code of Civil Procedure (Act V of 1908) as amended by Act II of 1951, cannot be invoked in this case, in view of the special provision contained in S. 7 of the Code. The Indian Code (Act V of 1908) was made applicable to this State also with effect from 1.4.1951 and hence the provisions of that Code have undoubtedly to govern this revision petition which was filed on 10.1.1952. It is S. 115 of the Code which confers jurisdiction on the High Court to revise decrees passed by the subordinate Courts in cases where such decrees are not appealable. S. 7 of the Code expressly states that certain provisions of the Code as specified in the section shall not extend to courts constituted under the Provincial Small Cause Courts Act (Act IX of 1887) or to Courts exercising the jurisdiction of a Court of Small Causes. One such provision specified in S. 7 of the Code is that contained in S. 115. One such provision specified in S. 7 of the Code is that contained in S. 115. S.7 as amended by Act II of 1951 reads as follows: "The following provisions shall not extend to courts constituted under the Provincial Small Cause Courts Act, 1887 [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], or to Courts in Part B States exercising a corresponding jurisdiction, that is to say " S. 115 of the Code is one of the sections enumerated in sub-cl. (4) of Cl. (b) of S. 7. The decree in this case was passed by the lower Court in the exercise of its jurisdiction to try the suit as a small cause suit and necessarily therefore the case comes within the mischief of S. 7. The result is that the revisional jurisdiction conferred by S. 115 of the Code cannot be invoked in respect of the decree in this case. 3. The learned advocate for the petitioner argues that the expression "Courts in Part B States exercising a corresponding jurisdiction" used in S. 7 of the Code would indicate that it refers only to small cause courts in such States and that since the decree in the present case was not passed by such a court, the jurisdiction to revise the decree under S. 115 of the Code cannot be said to be ousted by S. 7. In support of this contention reliance is also placed on the classification of Civil Courts as made in S. 4 of the Travancore-Cochin Civil Courts Act (Act XXII of 1951). That Section states that: "There may be four classes of Civil Courts subordinate to the High Court, viz., [1] the District Court [2] the Court of the Subordinate Judge, [3] the Court of Small Causes and [4] the Court of the District Munsiff." Small Cause Courts as contemplated by that section have not yet been established in this State and the necessary legislative enactment in that direction has also not been passed. Apart from this aspect of the matter we do not see any force in the contention urged on behalf of the petitioner that the operation of S. 7 of the Code of Civil Procedure has to be strictly confined to Small Cause Courts. Apart from this aspect of the matter we do not see any force in the contention urged on behalf of the petitioner that the operation of S. 7 of the Code of Civil Procedure has to be strictly confined to Small Cause Courts. The language of the section, far from lending support to such a contention, is clearly in support of the view that the section is intended to apply to Small Cause Courts and also to other courts exercising jurisdiction similar to that of Small Cause Courts in respect of suits which have been authorised to be tried as small cause suits. Even where small cause courts with exclusive jurisdiction to try small cause suits are established, other civil Courts of ordinary original jurisdiction could be specially empowered to exercise small cause jurisdiction in respect of specified classes of suits. In such cases the ordinary civil Court will be deemed to be a different court while exercising small cause jurisdiction. The provision to that effect is contained in S. 33 of the Provincial Small Cause Courts Act. That section is as follows : jurisdiction and the same court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognisable by a court of small causes, shall, for the purpose of this Act and the Code of Civil Procedure, be deemed to be different courts." Substantially the same provision is embodied in S.15 of the Travancore-Cochin Civil Courts Act, Act XXII of 1951. Ss. 13 and 14 of the Act deal with the conferment of Small Cause jurisdiction on the ordinary Civil Courts in the State. S.13 states that: "Every District Munsiff, unless otherwise directed by Government, shall hear and determine as small causes all suits of a civil nature, except suits specified in the Schedule hereto annexed, the amount or value of which does not exceed Rs. 100." S.14 states that: "Government may invest any of the District Judges or Subordinate Judges with small cause powers and empower them to hear and determine as Small Causes all suits of a civil nature except those specified in the Schedule hereto annexed, the amount or value of which does not exceed Rs. 100." S.14 states that: "Government may invest any of the District Judges or Subordinate Judges with small cause powers and empower them to hear and determine as Small Causes all suits of a civil nature except those specified in the Schedule hereto annexed, the amount or value of which does not exceed Rs. 500." S.19 lays down that: "The procedure prescribed in the Code of Civil Procedure, 1908 except the provisions specified in S. 7 and O. L thereof as inapplicable to suits tried as small causes shall be the procedure followed in a Court of Small Causes and in a court exercising the jurisdiction of a Court of small causes in all suits cognizable by it, and in all proceedings arising out of such suits." These statutory provisions make it clear beyond any room for doubt that the provisions contained in S. 7 of the Code of Civil Procedure are equally applicable to small cause courts constituted as such as well as to courts exercising the jurisdiction of a court of Small Causes as authorised by Ss. 13 and 14 of the Civil Courts Act. It is further provided in S. 20 of the Civil Courts Act that: "The decisions of judges of Small Cause Courts and of Munsiff, Subordinate Judges and District judges in the exercise of the small cause powers shall be final except orders specified in Cl. [h] of sub-s. [1] of S. 104 of the Code of Civil Procedure, 1908 from which an appeal shall lie subject to the previsions of the said Code relating to reference and revision." 4. It is argued on behalf of the revision petitioner that the provisions relating to reference and revision in respect of decrees in small cause suits have been saved by S. 20 of the Civil Courts Act. No doubt the section states that such decrees shall be final subject to the provisions of the Code of Civil Procedure relating to reference and revision. The provision relating to revision is contained in S. 115 of the Code and it is stated in S. 7 of the Code that S. 115 shall not extend to small cause courts or to other courts exercising the jurisdiction of a Small Cause Court. To the same effect is the provision contained in S.19 of the Civil Courts Act. The provision relating to revision is contained in S. 115 of the Code and it is stated in S. 7 of the Code that S. 115 shall not extend to small cause courts or to other courts exercising the jurisdiction of a Small Cause Court. To the same effect is the provision contained in S.19 of the Civil Courts Act. Thus the saving clause relating to revision as contained in S. 20 of the Civil Courts Act is in apparent conflict with the express provision to the contrary as contained in S.19 of the Act and in S. 7 of the Code of Civil Procedure. When there is an apparent conflict or repugnancy between the provision contained in S. 7 of the Code of Civil Procedure which is a Central Act and the provision contained in S. 20 of the Civil Courts Act which is an Act passed by the State Legislature, the provision contained in the Central Act has to prevail and the provision in the law made by the State Legislature, has to the extent of such repugnancy, to be ignored as being void. The provision contained in Art. 254 of the Constitution is to that effect. 5. It is pointed out on behalf of the revision petitioner that the High Court's power to revise decrees or orders passed by a Court of Small Causes has been expressly saved by S. 25 of the Provincial Small Cause Courts Act and that the jurisdiction conferred by this Section is much wider and more general in its scope than the power of revision conferred by S. 115 of the Code of Civil Procedure. It is suggested that the existence of such a section as S. 25 in the Provincial Small Cause Courts Act must have induced the Central Legislature for taking away by S. 7 of the Code of Civil Procedure the revisional jurisdiction conferred by S. 115 of the Code so far as it relates to suits tried as Small Causes. There appears to be some force in this suggestion. Corresponding to the Provincial Small Cause Courts Act, there is no Act in this State. There appears to be some force in this suggestion. Corresponding to the Provincial Small Cause Courts Act, there is no Act in this State. It is for the competent Legislature to consider whether any such Act containing special provisions for the trial of the small cause suits should be passed for this State also and whether a provision similar to S. 25 of the Provincial Small Cause Courts Act should be made in that Act. Until and unless such an Act is passed by the competent Legislature, the provisions contained in S. 7 of the Code of Civil Procedure and in S.19 of the Civil Courts Act have to govern the trial and disposal of small cause suits in this State by the Courts invested with such small cause jurisdiction. The result is that the revisional jurisdiction conferred by S. 115 of the Code of Civil Procedure cannot be invoked in respect of the decrees and orders passed in such small cause suits. To this extent the preliminary objection raised on behalf of the respondents as to the substainability of this revision petition has to prevail. But this does not mean that the High Court has no jurisdiction at all to correct grave errors or illegalities that may be committed by subordinate courts in the trial and disposal of Small Cause suits. Even though S. 115 of the Code of Civil Procedure cannot be invoked in that direction, the High Court can rectify such errors and illegalities in the exercise of the general power of superintendence over all subordinate courts, as conferred by Art. 227 of the Constitution. That Article states that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The power conferred by this Article, though very wide, cannot be freely used as a general revisory jurisdiction. On the other hand, such power will be exercised only in exceptional cases and to prevent the perpetration of illegal or unauthorised acts by subordinate tribunals, resulting in a miscarriage of justice. We are not satisfied that any such circumstance is made out in this case justifying the exercise of this Court's extraordinary jurisdiction under Art. 227 of the Constitution. As stated at the outset, the claim in the suit was a simple money claim for recovery of Rs. 60/- from the defendants. We are not satisfied that any such circumstance is made out in this case justifying the exercise of this Court's extraordinary jurisdiction under Art. 227 of the Constitution. As stated at the outset, the claim in the suit was a simple money claim for recovery of Rs. 60/- from the defendants. The lower Court was therefore right in exercising its small cause jurisdiction in dealing with the claim as a small cause suit. The finding arrived at by the lower Court that the plaintiff has failed to make out him claim by any reliable evidence is a finding on a pure question of fact. Thus in any view of the matter, this revision petition has to fail. 6. In the result this revision petition is dismissed with costs. Dismissed.