Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 325 (GUJ)

NIRMA LTD. v. MURLIDHAR MOHAN

2013-06-24

G.R.UDHWANI

body2013
JUDGMENT 1. This Revision Application arises against an order passed under Section 38 of the Presidency Small Cause Courts Act, 1882 (“the Act” for short) granting N.T. Application No.18 of 2005 instituted by the original defendant-respondent herein who, in pursuant to the notice issued under Order37 of the Code of Civil Procedure, 1908 (“the C.P.C.” for short), appeared and sought few adjournments, last of which was rejected by the Trial Court and a decree came to be passed, and therefore, invoked the jurisdiction of the Small Cause Court under Section 38 of the Act claiming new trial of the suit. 2. The Small Causes Court, after examining the whole case on merits found that a plausible defence was available to the respondent-original defendant and allowed the N.T. Application No.18 of 2005. Hence, this petition. 3. The learned counsel for the applicant would submit that the Trial Court exceeded the jurisdiction by entering into the merits of the whole case and then finding that case for new trial was made out. In his submission, scope of Section 38 of the Act was only to inquire into the fact as to whether a new trial was permissible in a case where a decree under Order 37 was passed. 3.1 It was next contended that by mere filing of an appearance, it cannot be said that the suit was contested and that the Trial Court committed error of jurisdiction by not appreciating the term “contested” used in Section 38 of the Act. It was contended that in absence of a contest in the suit wherefrom proceedings under Section 38 of the Act arose, the application under Section 38 of the Act was not maintainable. As to meaning of the term “contest”, the learned counsel would rely upon Bhaniben Vs. Narayan Pottery Works (AIR 2004 Gujarat 1), Smt. Maria Madeirae Fernandes Vs. Vishnu Mahadeo Kanekar (AIR 1987 Bombay 240) and Darshan Singh Vs. Ram Pal Singh and another (AIR 1991 Supreme Court 1654). 3.2 The learned counsel would also contend that for an application under Section 38 of the Act, Rules 53, 54 and 55 of Ahmedabad Small Causes Court Rules (for short “rules”) were required to be complied with and that having not been done, the application was liable to be dismissed. Ram Pal Singh and another (AIR 1991 Supreme Court 1654). 3.2 The learned counsel would also contend that for an application under Section 38 of the Act, Rules 53, 54 and 55 of Ahmedabad Small Causes Court Rules (for short “rules”) were required to be complied with and that having not been done, the application was liable to be dismissed. 3.3 The learned counsel would also contend that only remedy available to the respondent was the one under Order 37 of the C.P.C. which prescribes a complete procedure and for setting aside a decree passed under Order 37, rule 4 thereof obliges the defendant to show special reasons. In his submission, in absence of special reasons, even application under Order 37, Rule4 could not have been maintained; that the respondent had preferred such an application, but withdrew it after the decision was rendered in the present application. He would submit that thus a remedy under Section 38 of the Act was not available to the respondent. 3.4 The learned counsel would also submit that since the respondent did not appear and did not raise an objection with regard to the jurisdiction of this Court under Section 115 of the C.P.C. at the time of admission and in view of brief reasons recorded while admitting the matter, such an objection cannot be raised at the time of final hearing of the matter. 4. Resisting the petition, the learned counsel for the respondent while inviting attention of this Court to Part VIII of Schedule to the rules, submitted that the High Court in exercise of rule making powers under the Act has prescribed a complete and exclusive procedure to be followed in the suits filed in Ahmedabad Small Causes Court and said rules modify/omit various provisions of C.P.C. That Section 115 having been omitted as such, the Revision Application before this Court is not maintainable. In his submission, this question being a question of law, can be raised at any stage. 4.1 While relying upon M/s. Arvind Enterprise Vs. M/s. Saraogi Enterprises (AIR 1993 Calcutta 24), the learned counsel would submit that the term “contested” as defined in the explanation to the section itself has been interpreted by Calcutta High Court and since the expression is defined in section itself, in view of the decision in Bhuwalka Steel Industries Ltd. Vs. 4.1 While relying upon M/s. Arvind Enterprise Vs. M/s. Saraogi Enterprises (AIR 1993 Calcutta 24), the learned counsel would submit that the term “contested” as defined in the explanation to the section itself has been interpreted by Calcutta High Court and since the expression is defined in section itself, in view of the decision in Bhuwalka Steel Industries Ltd. Vs. Bombay Iron and Steel Labour Board and another (2010 AIR SCW 57), the external aid to interpret the term of a statute where the definition is also provided, cannot be sought. It was next argued that, in fact, the respondent appeared in response to the summons and sought to contest the proceedings and thus the respondent did not commit default in appearance within the meaning of explanation to Section 38 of the Act, but the Court refused to grant an adjournment and as such the respondent contested the case, and therefore, Section 38 of the Act applies to the fact of the present case. 5. Having considered the arguments advanced by the leaned counsel for both the sides, as also perused the impugned order, the questions which arise for consideration of this Court in the Revision Application under Section 115 of the C.P.C. are; (I) Whether the jurisdiction of the High Court is ousted by omission of Section 115 of the C.P.C. from Part VIII of the Schedule annexed to the Ahmedabad Small Causes Court Rules framed by the High Court in exercise of powers under Section 9 of the Presidency Small Cause Court Act, 1882 ? (II) Whether the remedy under Order 37(4) of Civil Procedure Code, 1908 is barred by virtue of its exclusion from Part XI of the Schedule annexed to the Rules framed by the High Court in exercise of powers under Section 9 of the Presidency Small Cause Court Act, 1882 ? (III) Meaning of the term “contested” used in explanation to Section 38 of the Presidency Small Cause Court Act, 1882 ? 5.1 In exercise of powers conferred by Section 9 of the Act, the High Court of Gujarat has prescribed the Rules regarding the procedure to be followed and practice to be observed by the Small Causes Court, Ahmedabad. Rule1 of the rules can be beneficially quoted: “1.(1) These rules may be cited as the Ahmedabad Small Cause Court Rules and shall come into force on the 4th day of November, 1961. Rule1 of the rules can be beneficially quoted: “1.(1) These rules may be cited as the Ahmedabad Small Cause Court Rules and shall come into force on the 4th day of November, 1961. (2) The portions of the Code of Civil Procedure, Act V of 1908, as modified upto 4th November 1961 in its applications to the State of Gujarat specified in the last column of the schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the column of such schedule; extend and shall be applied to the Small Cause Court and the procedure prescribed thereby shall be the procedure followed in the Court in all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882, or with these rules.” (emphasis supplied) 5.2 What transpires from the above rule is that the procedure as enumerated in last column of the Schedule subject to the additions, alterations and modifications specified in Column2, is the procedure applicable to the Small Cause Court, in all suits cognizable by it, except to an extent of its inconsistency with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882 or with the rules. 5.3 The relevant provisions made in the Schedule are mentioned below: Part VIII Section 113 to 115 (both inclusive) omit. Reference, Review and Revision Part XI Rule 1 omit. Order XXXVII Insert the following for Rule 2 : Summary procedure Rule 2(1) All suits upon bills of exchange, hundis or promissory notes and all suits in which the plaintiff seeks only to recover a debt or a liquidated demand in money payable by the defendant with or without interest, arising on contract express or implied or an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty, or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only may in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint which shall be instituted as a “Summary Suit” and which shall contain an averment that the plaintiff is suing under the summary procedure under Order XXXVII of the Code of Civil Procedure. (2) The writ of summons in a suit instituted under sub-rule (1) above shall be in form No. 2. The plaintiff shall together with the writ of summons serve on the defendant a copy of the plaint and exhibits thereto, and the defendant may at any time within ten days of such service enter an appearance. The defendant may enter an appearance either in person or by an advocate. In either case an address for service shall be given in the memorandum of appearance and, unless otherwise ordered, all summonses, notices, or other judicial process required to be served on the defendant shall be deemed to have duly served on him if left at his address for service. On the day of entering appearance, notice of the appearance shall be given to the plaintiff’s Advocate (or if the plaintiff sues in person to the plaintiff himself) either by notice delivery at, or sent by prepaid letter directed to, the address of the plaintiff’s Advocate or of the plaintiff, as the case may be. (3) In any suit under this Rule the defendant shall not defend the suit unless the enters an appearance and obtains leave from a judge as hereinafter provided so to defend; and in default of his entering an appearance and of his obtaining such leave to defend, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rates specified (if any) to the date of the decree, and such sum for costs as may be prescribed unless the plaintiff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way and such decree may be executed forthwith. 5.4 Thus, above procedure is required to be followed in the matters cognizable by Small Causes Court, Ahmedabad. It is true that there is no specific omission of Rule4 of Order 37 of the C.P.C. in Column 2 of the Schedule. However, as noticed in sub-rule (2), the words “the procedure be the procedure followed in the Court in all suits....” are clear indicator of the intention of the High Court to exclude other procedure under the Code of Civil Procedure except to the extent of inconsistency aforesaid. However, as noticed in sub-rule (2), the words “the procedure be the procedure followed in the Court in all suits....” are clear indicator of the intention of the High Court to exclude other procedure under the Code of Civil Procedure except to the extent of inconsistency aforesaid. While in summary suit other than those dealt with by the Small Causes Court, Ahmedabad, Order 37 Rule 4 may be a remedy for quashing and setting aside a decree, a parallel remedy in the suits instituted in the Ahmedabad Small Causes Court is provided under Section 38 of the Act. It cannot be disputed that “suit” referred to in Section 38 of the Act would necessarily include a summary suit, and therefore, there is no substance in the arguments that Section 38 does not cover summary suits. Thus, if the High Court in its wisdom did not deem it appropriate to prescribe a remedy under Order37 Rule4 as a remedy invocable in the Ahmedabad Small Causes Court, it cannot be contended that such remedy was available to the respondent. The remedy under Order37 Rule4 having not been included in Column4 of the Schedule annexed to the Ahmedabad Small Causes Court Rules, is barred for the summary suit instituted in Ahmedabad Small Causes Court. 5.5 Coming to High Court’s jurisdiction under Section 115 of C.P.C., as indicated in Part VIII of the Schedule to the rules, Section 115 of C.P.C. having been specifically omitted, the High Court has no jurisdiction to entertain the Revision Application arising from the jurisdiction of the Ahmedabad Small Causes Court. 5.6 As to observations by the High Court, while admitting the matter, it cannot be said that such observation set at rest the issue of jurisdiction, such observations cannot be said to be final and conclusive and binding to the Court when it comes to final hearing of the matter since it is only during the final hearing that the rights and the legal position can be finally determined. It is rightly contended that the question with regard to maintainability of the petition is a question of law and it is settled legal position that such a question can be raised at any stage; even before the Appellate Court, and therefore, just because no such objection was raised at the time of admission of the matter, it cannot be said that the respondent is prevented by law from raising such an issue. 5.7 As to the meaning of the term “contested” contained in explanation to Section 38 of the Act, it must be noted that undisputedly, the respondent appeared before the Trial Court and submitted an application for adjournment which came to be rejected and ultimately, a decree came to be passed. In that context, it is beneficial to reproduce Section 38 of the Act: “Section 38: Where as suit has been contested, the Small Cause Court may, on the application of the either party, made within eight days, from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure) order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. Explanation: Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.” 5.8 It is thus clear that the explanation to Section 38 defines the term “contested” and therefore, in view of Bhuwalka Steel Industries Ltd. Vs. Bombay Iron and Steel Labour Board and another (supra), external aid cannot be resorted to. Hence, authorities relied upon by the learned counsel for the petitioner interpreting the term “contest” are of no assistance to the petitioner. 5.9 The definition of the term “contested” is made clear in the explanation to Section 38 which is a deeming provision. According to it, there is a deemed contest except in two eventualities; (1) when consent decree is passed and (2) when the defendant defaults in making an appearance. Defendant appeared through an advocate and thus, the defendant did not default in making appearance. The suit was, thus, contested by mere appearance of the defendant and therefore, an application made under Section 38 of the Act was maintainable. Defendant appeared through an advocate and thus, the defendant did not default in making appearance. The suit was, thus, contested by mere appearance of the defendant and therefore, an application made under Section 38 of the Act was maintainable. 5.10 It is true that the Trial Court has entered into elaborated merits of the case while ordering for new trial. Since this Court is of the opinion that the Revision Application is not maintainable as also considering the language of Section 38 of the Act, which does not circumscribe the extent or scope of the jurisdiction of the Small Causes Court, Ahmedabad, it is not appropriate to examine the scope of the Trial Court under Section 38 of the Act. 6. In above view of the matter, there is no substance in the Revision Application. It is, therefore, dismissed. Rule is discharged. There shall be no order as to costs. 7. At this stage, the learned counsel for the petitioner submitted that this Revision Application may be converted into the Special Civil Application under Article 227 of the Constitution of India. This Court has already decided all the issues raised in this Revision Application and also has come to the conclusion that the Revision Application would not lie. Therefore, it will not be appropriate now to allow the petitioner to convert the Revision Application into Special Civil Application. However, it is made clear that it will be open for the petitioner to explore the remedy that may be available to him before this Court, in accordance with law. Application dismissed.