Monoranjan Sinha v. G. C. Barret — 1983 DIGILAW 168 (CAL)

JUDGMENT 1. THIS application arises out of a judgment and order passed by the learned Judge, Second Bench, Small causes Court, allowing an application for a new trial on contest. The petitioner (the plaintiff) instituted the suit being Suit No. 1213 of 1970 before the Second Bench of the small Causes Court at Calcutta for eviction of the tenant from the said premises on the ground that the registered lease dated 15th August, 1853 expired by efflux of time on 14th of August, 1969. 2. SUMMONS that was sent to the opposite party no. 1 came back, with the report "unwilling to take delivery". Thereafter, the summons was again served by registered post and came with the postal remark 'refused' on 12th June, 1970. On 23rd june, 1970 the suit was decreed ex pane and possession was given on 31st July, 1970 by police help. On 4th August, 1970 an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the opposite party no. 1. It is the case of the plaintiff that the opposite party took certain amount of money from the petitioner for giving up possession of the premises and granted receipt therefore which has been marked 'a' to the present petition. The plaintiff's case is that there was an agreement by and between the landlord and the tenant In consideration of payment of certain amount of money that the tenant would abandon the possession of the said premises and the landlord sought leave during the hearing of the application to be allowed to cross-examine the tenant on that point and that prayer was rejected by the Judge of the Small Causes Court and the matter came up before Mr. Justice Sinha in revision and His Lordship directed that the landlord would be allowed to cross-examine the tenant on that agreement and remanded the matter to the Court of Small Causes to deal with it as per the direction given by his Lordship. On 20th March, 1983 the application under Order 9 Rule 13 which was sent back by Sinha, J: was rejected by the Court of Small Causes. 3. THE matter came up again on revision this time before Mr. Justice Maitra. On 20th March, 1983 the application under Order 9 Rule 13 which was sent back by Sinha, J: was rejected by the Court of Small Causes. 3. THE matter came up again on revision this time before Mr. Justice Maitra. Maitra, j. who remitted back the matter to the court of Small Causes over again to deal with it in accordance with the provisions of law with an observation "the subsequent conduct was wholly irrelevant where the defendant has prayed for setting aside the ex-parte decree on the ground that summons was not duly served. The learned judge did not say that the evidence of the pw's could not be believed. We cannot assume that the implication that Court arrived at a finding that the evidence of PW's could not be believed. 'The application which was not remanded was heard by the learned Judge, Small Causes Court and was allowed directing a new trial as stated hereinbefore. 4. MR. Sudhis Dasgupta appearing for the appellant contended before me that provisions of Civil Procedure Code do not apply in the proceedings before the Presidency small Causes Court and. referred to me section 8 and also Order 51 of the Code of civil Procedure to support his contention. He argued that proceeding as initiated purported to be made under Order 9 Rub 13 of CPC was without jurisdiction and order passed therein had no legal effect. I have considered the relevant provisions of the Code of Civil Procedure including those referred to by Mr. Dasgupta and in my view that contention of Mr. Sudish dasgupta is not acceptable at least for the present case for the grounds following : 5. THE language of the manual of the Court of Small Causes contained in Chapter ix, Rule 15 deals with setting aside of the exparte decree. Practically it is in the same with the language as contained under order 9 Rule 13 of the Code of Civil Procedure; only because the application has been entitled as one under Order 9, Rule 13 of Civil Procedure Code will not make it irretrievably defective. The same evidence is to be adduced and the same consideration is to be applied in such a case with same legal implication be it initiated under order 9, Rule 13 or be it under the rules of business as contained in the Manual of the small Causes Court. The same evidence is to be adduced and the same consideration is to be applied in such a case with same legal implication be it initiated under order 9, Rule 13 or be it under the rules of business as contained in the Manual of the small Causes Court. In my view law cannot be so illogically rigid as to its application in such a mechanical way as sought to be argued by Mr. Dasgupta. The provisions of the rules being the same in both the cases if I reject the application because it is marked wrongly as made under Order 9 rule 13 of the Code of Civil Procedure or sought to be moved under that rule 1 would transgress the rules of fairness. In my opinion, in procedural matters any breach of the rules of procedure may be condoned if the breach does not go to the root of it or does not violate the nature and spirit of it. As I do think that in this case that has happened, I do not feel inclined to accept the contention of Mr. Dasgupta in this regard. Had it been the case that the provisions of Order 9 Rule 13 and rules of business as contained in the maunal were different in law and/or in spirit it would certainly not be proper for me to treat one as the other but in the absence of such variance when they are akin I cannot accept the argument of Mr. Dasgupta that the whole proceeding has been vitiated. 6. IN course of considering the matter I came across a judgment reported in AIR 1968 Cal. page 234 (Rameswar vs. Jogindra ). In that judgment Purusottam Chatterjee, J. lays down the principal that Small causes Court Act being a special Act, ordinarily the procedure under the Code of civil Procedure will not apply to proceedings Initiated before Small Causes Court unless empowered by High Court to do so. In that case as reported in AIR 1968 Cal. there was no such authority. But in this case there is, vide Chapter IX, Rule 15 of the Manual of the Small Causes Court. The said judgment, to my mind, supports the maintainability of the present proceeding under consideration. In that case as reported in AIR 1968 Cal. there was no such authority. But in this case there is, vide Chapter IX, Rule 15 of the Manual of the Small Causes Court. The said judgment, to my mind, supports the maintainability of the present proceeding under consideration. I may further add here that the language of Rule 15 of Chapter IX of the Manual of the Presidency Small Causes Court on the relevant aspects being pari materia with the language of Order 9, Rule 13 and as no prejudice having been caused to the petitioner I do not accept the argument that initiating this proceeding under Order 9 Rule 13 has rendered the whole proceeding void. 7. MOREOVER, the petitioner never objected to and never questioned the propriety arid/or legality of the application before the learned Judges of the Court of Small Causes in any of the proceedings earlier. This application twice came to this Court previously and twice it was sent back and not a word has been said questioning the validity of the application. They have led the opposite party to believe that the proceeding was in order and they themselves did not take this point in any of the applications made before-neither in this Court before justice Sinha nor before Justice Moitra non in the Court of Small Causes. In any view of the matter in my opinion the objection of Mr. Dasgupta is not sustainable. 8. THE next point that was urged by Mr. Dasgupta is that before Justice Maitra the order of Justice Sinha was not placed, had it been placed Maitra, J. could not have passed that order as His Lordship passes. Mr. Dasgupta argued that Maitra,. J. in his judgment which is Annexure 'c' to the petition observed:- "it has been rightly contended on behalf of the petitioner that the subsequent conduct of the parties was unnecessarily dealt with in the judgment and that led to the rejection of the petition filed by the petitioner. The subsequent conduct was wholly irrelevant, where the defendant has prayed for setting aside the exparte decree on the ground that summons was not duly served. " But when the judgment of Sinha, J. was in record I may presume and I do presume that the learned Judge had duly considered the judgment of Justice Sinha and passed that order. The argument of Mr. " But when the judgment of Sinha, J. was in record I may presume and I do presume that the learned Judge had duly considered the judgment of Justice Sinha and passed that order. The argument of Mr. Dasgupta that as on the same matter two learned Judges differed I should refer it to a larger Bench is not sustainable in view of the fact that this judgment after being delivered by Maitra, J. was remanded : no action/proceeding was taken then at that time and that chapter was closed. The matter has come afresh to me after such remand with a new judgment passed by the Court of Small Causes in the light of judgment of maitra, J. remanding the matter. At this belated stage I cannot accept Mr. Dasgupta 's argument in that regard. Moreover, under Section 115 of the Civil Procedure code I should confine myself to the order and the judgment of the learned Judge of the Small Causes Court from which this application for civil revision has arisen. Mr. Dasgupta strongly argued that I should also take into consideration Ext. 6 which impliedly refers to an agreement not to contest the ejectment suit but I am constrained to reject that contention in view of the fact, that is a matter which may be gone into at the time of hearing of the trial assuming that such an agreement was there and such an agreement was a valid and legal one. In this application for civil revision I cannot go into that question, as there is no scope for that 9. THE other point that was argued by mr. Dasgupta is that the learned Judge of the Small Cause Court did not comply with the direction given by Maitra, J. by not assessing evidence in the matter as directed by the learned Judge. What Mr. Dasgupta, meant to say was that Maitra, J. in his judgment dated 12th of March, 1980 observed that the learned Judge 'did not say that the evidence of the P. Ws. would not be believed. We cannot assume with the implication that Court arrived at a finding that the evidence of the P. Ws could not be believed", but however in the penultimate paragraph of his judgment Maitra J. observed "the Court will re-consider the entire matter and arrive at a decision according to law." Mr. would not be believed. We cannot assume with the implication that Court arrived at a finding that the evidence of the P. Ws could not be believed", but however in the penultimate paragraph of his judgment Maitra J. observed "the Court will re-consider the entire matter and arrive at a decision according to law." Mr. Dasgupta contended that the learned Judge in his judgment has not discussed whether he believed the plaintiff's witness or not. Therefore he failed to comply with the order and/or direction of the learned Judge and as such the judgment of the learned Judge of the Court of Small Causes is vitiated by non-compliance with the directions given by the High Court and on that ground alone the judgment should be set aside. I am unable to accept the contention of Mr. Dasgupta. Maitra, J. gave liberty to reconsider the entire matter and arrive at a decision according to law. I find the learned Judge has considered the matter de novo and on such consideration of a fresh assessment of evidence he has come to a finding against which this application is directed. I do not think that I should interfere with the judgment and order of the learned Judge in this matter, on any of the grounds as urged by Mr. Dasgupta before me. 10. HENCE it is ordered: Rule is discharged; interim order if any vacated. No order as to costs. Records be sent down expeditiously. Rule discharged.