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1970 DIGILAW 80 (GAU)

Seubox Chiranjilal Jain v. Pardeshi Ram Teli

1970-11-03

R.S.BINDRA

body1970
ORDER : This revision petition raises the question what is the exact interpretation of the term "house" used in Art. 8, Schedule II, of the Small Cause Courts Act, 1887, hereinafter called the Act. 2. Messrs Seubox Chiranjilal filed a suit in the Court of the Munsiff (I), Manipur, against Pardeshi Ram for recovery of arrears of rent amounting to Rs. 293.56 in respect of premises situate within the area of Imphal Municipality : The suit was resisted by Pardeshi Ram on the plea that it was barred by Rule 9, Order IX, of the Civil Procedure Code, as a previous suit founded on the same cause of action filed by the plaintiff firm in the Small Cause Court, Manipur, had been dismissed in default. Another objection raised by the defendant was that the suit was exclusively triable by a Court of Small Causes and as such the Munsiff had no jurisdiction to try it. 3. The trial Court settled as many as 8 issues between the parties and dealt with issues Nos. 5 and 7 as preliminary issues. Issue No. 5 related to the plea founded on Rule 9 of Order IX, while issue No. 7 covered the plea based on Section 16 of the Act. Issue No. 5 was decided against the plaintiffs, while issue No. 7 was found against the defendant. As a consequence of the decision on issue No. 5, the suit was dismissed with costs. 4. The plaintiffs filed an appeal in the Court of the District Judge challenging the finding of the trial Court on issue No. 5. The defendant happened to urge before the District Judge at the hearing that the trial Court had gone wrong in deciding issue No. 7 against him. The trial Court had found that the term "house" used in Article 8, Schedule II, of the Act does not embrace a shop property and that since the premises in dispute is in the nature of a stall, it is not a house and as such Section 16 of the Act does not stand in the way of the plaintiffs filing a suit in the ordinary Civil Court. The District Judge held, on setting aside the finding of the trial Court, that the premises in dispute falls within the scope of the expression "house" used in Article 8. The District Judge held, on setting aside the finding of the trial Court, that the premises in dispute falls within the scope of the expression "house" used in Article 8. In the context of that conclusion, the District Judge held further that after the dismissal in default of the first suit by the Small Cause Court it was not open to the plaintiffs to file another suit based on the same cause of action. The District Judge consequently dismissed the appeal but perhaps inadvertently made no order as to costs. 5. In the present revision petition the findings of the two Courts below are challenged by the plaintiffs. 6. Section 15 (1) of the Act enjoins that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes. One of such excepted suits is mentioned in Article 8 as under : "As suit for the recovery of rent, other than house rent, unless the Judge or the Court of Small Causes has been expressly invested by the Government with authority to exercise jurisdiction with respect thereto." It was the contention of Shri T.N. Bhattacharjee, appearing for the plaintiffs-petitioners, that the expression "house" does not include shop premises, to which category the premises in dispute belongs, and as such the Small Cause Court had no jurisdiction to entertain and decide the first suit, nor the dismissal of that suit can be taken into consideration on that account in the present suit for the purposes of the plea founded on Rule 9 of Order IX of the Code. Shri B.B. Sen, representing the defendant, urged, on the other hand, that the word "house" encompasses shops and stalls with the consequence that the ordinary Civil Courts have no jurisdiction to try suits for the recovery of rents relating to shops or stalls. It is appropriate that a passing reference should be made at this stage to Section 16 of the Act which enacts that save as expressly provided by the Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. It follows that if the expression "house" used in Article 8 includes a stall or a shop, Section 16 of the Act will stand in the way of an ordinary Civil Court to try the present suit. Another conclusion that would emerge from such a finding would be that the first suit having been dismissed in default by a competent Court. the plaintiffs present suit based on the same cause of action would not be maintainable in view of the provisions of Order IX, Rule 9. Shri B.B. Sen was however fair in conceding that if the Small Causes Court had no jurisdiction to try the first suit, then the present suit would not be hit by Rule 9 of Order IX. Indeed it is so. 7. The sole question which therefore requires determination in the instant revision is what is the exact scope of the expression "house." The parties counsel were agreed that that expression is defined neither in the Act, nor in any other statute including the Court-fees Act, 1870. Hence, it is legitimate to interpret the expression according to its dictionary meaning, there being no indication in the Act that it has to be interpreted in any other manner. According to the Cham-berss Twentieth Century Dictionary the word "house" means, inter alia, a building for dwelling in; a dwelling house; a building in general; an inn; a public house. The Shorter Oxford English Dictionary also defines "house", amongst other definitions, as meaning a building for the keeping of cattle, birds, plants, goods, etc. Therefore, Shri Bhattacharjee was not justified in restricting the scope of "house" to a residential building alone. If such were the intention of the Legislature it could have very conveniently conveyed it by appropriate language, e.g., by using the expression "residential house" or some such other words in Article 8. 8. The matter does not appear to be res integra either. The Court of the Judicial Commissioner for Upper Burma held in Nga Kan v. Mi Mya, (1909) 4 Ind Cas 822 (U.B.J.C.s Court), that a stall in a market is a house or part of a house within the meaning of Article 8 of Schedule II and so a suit for rent respecting such a stall is cognizable by a Court of Small Causes. An observation made in this case was that the word "house" must be taken to have been used in its ordinary sense. This authority was cited with approval in Mt. Ahmadi Begum v. Girraj Kishore, AIR 1927 All 194, wherein it was held that the word "house" is used in Article 8 in its widest possible sense as meaning a building that is adopted, or may be adopted, for residential purposes. It was stated further that the fact that the word "house" has not been used in a restricted sense is also brought out by clause (v) of Section 7 of the Court-Fees Act which relates to suits for possession of "land, houses and gardens," and that the word "house" used in the latter provision has been interpreted as including buildings of every description, for there is no other provision in the Court-Fees Act prescribing the amount of court-fees with respect to suits for possession of shops as distinguished from houses. If the Legislature wanted to distinguish shops from houses, the High Court observed further, one would have expected some provision being made in the Court-Fees Act respecting suits for possession of shops as distinct from houses. 9. The Judicial Commissioners Court Peshawar held in Nathu Ram v. Uttam Chand, AIR 1939 Pesh 14, that a shop is a house within the meaning of Article 8 and as such a suit for rent of a shop is triable as a Small Cause suit. A similar view was taken by the Peshawar Court in Parkash Mehra v. Sant Ram, AIR 1935 Pesh 192, wherein it was held that a garage, like a shop, is suitable for residential purposes and as such falls within the purview of expression "house" used in Article 8. In the case of Kesho Ram v. Municipal Committee, AIR 1936 Pesh 55, the view taken was that a building actually used as a shop, but capable of use as a residence, is a house for the purposes of Article 8, and so a suit for arrears of rent for such premises is a small cause suit. In the case of Kesho Ram v. Municipal Committee, AIR 1936 Pesh 55, the view taken was that a building actually used as a shop, but capable of use as a residence, is a house for the purposes of Article 8, and so a suit for arrears of rent for such premises is a small cause suit. The Nagpur Judicial Commissioners Court also, likewise, held in Nathu v. Sonasa, (1922) 65 Ind Cas 966 (Nag J. C.s Court), that the term "house rent" as used in Article 8 includes "shop rent," and therefore a suit for the recovery of the rent of a shop is cognizable by a Small Cause Court. 10. The only authority cited by Shri Bhattacharjee, namely, AIR 1928 Lah 284, Matwal Das v. Nand Lal, to support his contention, actually goes against him. It was definitely held in this case that the words "house rent" as used in Article 8 cover and include "shop rent." And it was not disputed by Shri Bhattacharjee that the premises in dispute is a stall or a shop in the market at Imphal. 11. The above survey of the judicial pronouncements of the various High Courts leaves no room for doubt that the term "house" used in Article 8 does not mean or imply only a residential building and that it includes any other building which is being, or may be, used for residential purposes. As a matter of fact, according to the Dictionary meaning of the term "house", it means a building in general including a building for the keeping of cattle, birds, plants and goods. This conclusion is reinforced by the use of the expression "house" in clause (v) of Section 7 of the Court-Fees Act, 1870. In the latter Act, it may be emphasised, there is no other provision for payment of court-fee for a suit relating to shops. And, further, there appears to be complete unanimity amongst the various High Courts in India that the expression "house" used in Section 7 (v) of the Court-Fees Act includes a shop building. I would, therefore, hold, repelling the contention raised by Shri Bhattacharjee, that the Small Cause Court which dismissed the previous suit was possessed of jurisdiction to try the same. I would, therefore, hold, repelling the contention raised by Shri Bhattacharjee, that the Small Cause Court which dismissed the previous suit was possessed of jurisdiction to try the same. If that suit had been properly dismissed under R. 8 of Order IX, as looks obvious, another suit based on the same cause of action is surely barred by Rule 9 of the same Order. 12. In the result, this revision petition fails and stands rejected. However, since there was no judgment of this Court bearing on the interpretation of Article 8. I leave the parties to bear their own costs in this Court. Revision rejected.