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Allahabad High Court · body

1983 DIGILAW 628 (ALL)

Shiv Singh v. III Additional District Judge

1983-09-08

A.N.VARMA, SATISH CHANDRA

body1983
JUDGMENT Satish Chandra, C.J. - Can a civil revision instituted u/s 25 of the Provincial Small Cause Courts Act be dismissed for default of appearance? On this point there is a conflict of opinion in this Court. Chhotey Lal v. III Addl. Distt. Judge 1982 UPRCC 508 and Molid. Sajed Quresi v. Mst. Sabira 1979 AWC 775 held that such a revision cannot be dismissed in default. On the other hand, in Ram Murti Singh Vs. Gyanendra Kumar Arya and Another, AIR 1982 All 185 it was held that the Court has jurisdiction to dismiss a revision if no one appears to press it. In order to resolve this controversy a learned Single Judge has referred these two connected writ petitions to a larger Bench. That is how the matter has come before us. 2. The Petitioner in the writ petition is the tenant of two adjoining houses. The landlord-Respondent filed two Small Cause Court suits against the Petitioner for his ejectment and recovery of rent and damages. The Judge Small Cause Court, in due course, decreed the suit. The tenant went up in revision. On the date fixed, for the hearing of the revision, namely, on July 2, 1982 no one appeared on behalf of the tenant-applicant. The Court dismissed the revisions for default of appearance. The tenant made an application for the setting aside of the exparte decree. This application was allowed on condition of depositing the entire decretal amount or furnishing security therefore within seven days and payment of Rs. 20/- as costs. These conditions were not fulfilled. Hence the restoration application stood dismissed. Aggrieved, the tenant came to this Court. 3. He submitted that the revisions could not be dismissed for default of appearance. It was incumbent upon the District Judge to examine the judgment of the trial Court and decide the revision on merits. In support, reliance was placed upon Chhotey Lal's case (supra). In this case a revision u/s 25 of the Pr.S.C.C. Act was dismissed in default because the applicant was absent. The learned Judge held: The Court below was dealing with the revision u/s 25 of the Provincial Small Cause Courts Act. Section 25 provides that the revision lies to the Court for examining whether the judgment of the Judge Small Causes was according to law. Thus there would be no scope for dismissal in default. The learned Judge held: The Court below was dealing with the revision u/s 25 of the Provincial Small Cause Courts Act. Section 25 provides that the revision lies to the Court for examining whether the judgment of the Judge Small Causes was according to law. Thus there would be no scope for dismissal in default. The revisional Court u/s 25 of the Provincial Small Cause Courts Act had to examine the judgment of the trial Court in accordance with that section and decide the revision on merits. 4. In Mohd. Sajed (supra) the position was that a revision u/s 25 of the Pr.S.C.C. Act was dismissed for default. The application for restoration was rejected by the District Judge on the ground that there was no provision for restoration of a civil revision dismissed for default. Before the High Court the only point canvassed was whether the District Judge had power to restore the revision dismissed for default. A learned Single Judge held: Once the District Judge was of the view that there was no provision for dismissal of a revision for default he could not have dismissed the revision but if it was dismissed inspite of absence of provision the same could be restored even if there was no provision for restoration. 5. With respect, the observations in both these cases are vague and general. It is apparent that the attention of the learned Judge was not invited to the relevant and material provisions. Section 17 Pr.S.C.C. Act provides; 17. Application of the Code of Civil Procedure- (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save in so far as is otherwise provided by that Cede or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it, and any proceedings arising out of such suits; (2)... 6. Thus, the procedure of the Code shall be followed in the Court of Small Causes in suits and in all proceedings arising out of such suits. In other words, the procedure prescribed in the CPC will be followed in revisions arising out of Small Cause suits save in so far as it is otherwise provided by the Code or this Act. 7. In other words, the procedure prescribed in the CPC will be followed in revisions arising out of Small Cause suits save in so far as it is otherwise provided by the Code or this Act. 7. Section 7 CPC gives a list of provisions of the body of the Code which do not extend to the Court constituted under the Provincial Small Cause Courts Act, 1887. It, inter alia, mentioned Sections 96 to 112 and 115. These sections provide for appeal, review and revisions. Similarly, Order L, CPC gives a list of previsions which do not extend to Courts constituted under the same Act. Amongst other provisions, Order XLI to Order XLV are included, i.e., the provisions of Orders XLI to XLV (which relate to appeals) are not applicable to such Courts. The position is that barring the provisions of the Code mentioned in Section 7 and Order L the rest of the Provisions of the Code apply and are to be followed by the Court of Small Causes in all suits and in all proceedings arising out of such suit. 8. Order IX, CPC deals with appearance of parties and consequence of non-appearance. Rule 2 of Order IX provides for dismissal of suit where summons are not served in consequence of Plaintiff's failure to pay costs. Rule 3 of Order IX provides that where neither party appears the Court may make an order that the suit be dismissed. Rule 5 provides for dismissal of suits where the Plaintiff after service of summons returned unserved fails for three months to apply for fresh summons. Under Rule 6 where the Plaintiff appears and the Defendant does not appear when the suit is called on for hearing and it is proved that the summons was duly served, the Court may make an order that the suit be heard exparte. Rule 8 of Order IX says that where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed.... 9. The procedure given in these rules of Order IX will, in view of Section 17 of the Pr.S.C.C. Act, be followed in the Court of Small Cause in relation to suits. The same procedure will also be applicable to proceedings arising from such suits. 9. The procedure given in these rules of Order IX will, in view of Section 17 of the Pr.S.C.C. Act, be followed in the Court of Small Cause in relation to suits. The same procedure will also be applicable to proceedings arising from such suits. A revision u/s 25 of the Act is a proceeding arising out of such suits. Order IX, CPC will apply to it. Hence a Court seized of a revision u/s 25 has power and jurisdiction to dismiss it for default. 10. Our attention was invited to Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, AIR 1963 SC 146 . This decision is not very helpful. It was based on the interpretation of Order XLI, Code of Civil Procedure. It has already been seen that Order XLI does not apply to Court of Small Cause. 11. For these reasons, we are unable to uphold the decision in Chhotey Lal and Mohd. Sajed's cases. We agree with Ram Murti's case (supra) that the Court seized of a revision u/s 25 Pr.S.C.C. Act has power to dismiss it for default of appearance. 12. Let the papers of the case be placed before the appropriate Single Judge with this opinion and answer.