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2013 DIGILAW 748 (ALL)

KRISHNA KUMAR GUPTA v. SUBHASH CHAND SURANA

2013-03-07

KRISHNA MURARI

body2013
JUDGMENT Hon’ble Krishna Murari, J.—Heard learned counsel for the petitioner and Sri Madhav Jain for the respondent. Undisputed facts giving rise to dispute are as under : Landlord-respondent filed SCC suit seeking a decree of eviction of the tenant-petitioner on the ground of arrears of rent. After the evidence of the parties was over, an application was filed by the tenant-petitioner with the prayer to frame issues before proceeding any further. vide order dated 8.5.2012, Judge, Small Cause rejected the application against which a revision was preferred which was also dismissed. Trial Court dismissed the application on the ground that the points for determination shall be framed and mentioned in the judgment and there was no requirement to frame issues in a suit under the Provincial Small Cause Courts Act. 2. It is contended by learned counsel for the petitioner that in view of the judgment rendered by this Court in the case of Akhil Kumar Jain v. Smt. Sharda Devi and others, 2011(88) ALR 682, it was incumbent upon the Judge, Small Cause Court to frame issue before proceeding with the case and the application has wrongly been dismissed. 3. In reply, Sri Madhav Jain, learned counsel for the respondent submitted that in view of the provision of Order 50 Rule 1(a)(iii) of the Code of Civil Procedure (In short the ‘Code’), it is not mandatory or incumbent upon the Judge, Small Cause Courts to frame any issue before proceeding for adjudication of the dispute as is required in other civil suits. It has also been submitted that the judgment in the case of Akhil Kumar Jain (Supra), being relied upon by learned counsel for the petitioner, since has not noticed the provision of Order 50 Rule 1(a)(iii), hence, cannot be said to be a good law. 4. I have considered the argument advanced by learned counsel for the parties and perused the record. 5. By virtue of Section 17 of the Provincial Small Cause Courts Act, the provision of the Code of Civil Procedure has been made applicable in suits and proceedings arising therefrom before a Court of Small Causes. Section 17(1) reads as under : “17. I have considered the argument advanced by learned counsel for the parties and perused the record. 5. By virtue of Section 17 of the Provincial Small Cause Courts Act, the provision of the Code of Civil Procedure has been made applicable in suits and proceedings arising therefrom before a Court of Small Causes. Section 17(1) reads as under : “17. Application of the Code of Civil Procedure.—(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits: Provided ....................” Thus by virtue of the aforesaid provision, unless it is otherwise provided in the Code itself or by the Provincial Small Cause Court Act, the procedure prescribed by the Code of Civil Procedure is to be followed in a Court of small causes. 6. Order XIV of the Code makes it mandatory upon the Court to frame issue of fact as well as law. Rule 1(5) of Order XIV prescribes the stage and procedure to be followed for framing of issues. It reads as under : “(5). At the first hearing of the suit the Court, shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.” 7. However, the provision regarding framing of issues are excluded in its application in proceeding before the Small Cause Courts Act by virtue of clause (iii) of Order 50 Rule 1 which reads as under : “1. However, the provision regarding framing of issues are excluded in its application in proceeding before the Small Cause Courts Act by virtue of clause (iii) of Order 50 Rule 1 which reads as under : “1. Provincial Small Cause Courts.—The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 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 any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say - (a) so much of this Schedule as relates to— (i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; (ii) the execution of decrees against immovable property or the interest of a partner in partnership property; (iii) the settlement of issues; and (b) ..............................” 8. From a bare reading of the aforesaid provision, it is clear that provision in the Schedule contained in the Code of Civil Procedure in so far they relate to settlement of issues shall not extend to the Court constituted under the Provincial Small Cause Court Act. Order XX Rule 4 of the Code only requires that a judgment of a Court of Small Causes shall contain the points for determination and the decision thereon. Thus it cannot be said that non-framing of issue by Judge, Small Cause Court as is required by Order 14 C.P.C. has vitiated the procedure or any of the parties can, as a matter of right, insist upon the Court for framing of issue before proceeding any further. There being no requirement for framing of issues, the petitioner could not have insisted upon the Court for the same and the order dismissing his application cannot be faulted with. 9. The view taken by me finds support from the judgment of a learned single Judge in the case of Bashisth Mani Tripathi v. State of Uttar Pradesh and others, 1979 All LJ 1049, wherein it has been held as under : “Though it is not necessary for Judge, Small Cause to frame issue yet as required by Rule 4 of Order 20 CPC he is required to mention in the judgment the points for determination. If on the pleadings of the parties, certain points arise for determination they must be mentioned by the Judge unless some or any of them have been given up by the parties. 10. Reference may be made to judgment of another learned single Judge in the case of Dau Dayal Tandon v. Additional District Judge, Nainital and others, 1982 (1)ARC 356, wherein it has been observed in paragraph 3 as under : “Having heard counsel for the parties, I am of opinion that the submission made by counsel for the petitioner is well-founded. Respondent No. 1 seems to have completely ignored clauses (iii) of Order L, Rule 1(a) of the Code of Civil Procedure which inter alia provides that the provisions in the Schedule to the Code of Civil Procedure in so far as they relate to the settlement of issues shall not extend to Courts constituted under the Provincial Small Cause Courts Act. Accordingly the provision contained in Rule 1 C.P.C. in regard to settlement of issues was not attracted so far as the decision of the instant suit was concerned. The order of remand passed by the respondent No. 1 cannot, therefore, obviously be sustained. The only relevant provision which was applicable was Order 20 Rule 4(1) C.P.C. which provides that judgments of a Court of Small Causes need not contain more than the points for determination .......................” 11. Learned single Judge in the case of Akhil Kumar Jain (Supra), relied upon by learned counsel for the petitioner, has held that it is mandatory for the Small Causes Court to frame issues quoting observation made by Hon’ble Apex Court in Rameshwar Dayal v. Banda (Dead) and others, 1993(1) (Vol.XXI) ALR 233. However, a perusal judgment of the Hon’ble Apex Court goes to show that it has nowhere been held that it is mandatory for a Judge, Small Cause Court to frame issues before proceeding with the case and non-framing of issues would render the procedure and the judgment rendered therein illegal. However, a perusal judgment of the Hon’ble Apex Court goes to show that it has nowhere been held that it is mandatory for a Judge, Small Cause Court to frame issues before proceeding with the case and non-framing of issues would render the procedure and the judgment rendered therein illegal. In the said case, the Apex Court while considering the question whether decision of Small Causes Court was binding upon the respondent held that the order or the decree should not be confused with the judgment which is defined by Section 2(9) of the Code as statement given by the Judge on the grounds of a decree or order and further that in view of definition of decree or order or judgment contained in the Code, the decree or the order can come into existence only if there is an adjudication on the relevant issues which conclusively determines the rights of the parties. Noticing that Judge, Small Cause Courts has not even noticed the matter and the controversy between the appellant and the respondent and thus there has been no adjudication or decision on the matters and there being no formal expression of adjudication conclusively determining the rights of the parties with respect to matter in controversy in the suit held that the decision of a Small Causes Court would not amount to a decree within the meaning of Section 2(2) of C.P.C. In that connection, while noticing the provision of Order XX Rule 4(1) and 5 of the Code it was observed as under : “Points for determination” referred to in Rule 4(1) are obviously nothing but “issues” contemplated by Rules 1 and 3 of Order XIV of the Code. The present decision of the Small Causes Court which has not even stated the points for determination and given finding thereon, is obviously not a judgment within the meaning of Section 2(9) of the Code. Since the matters were the controversy between the parties, it is only a judgment which could have given rise to a decree. The so-called decision of the Small Causes Court, therefore, does not amount to a decree within the meaning of Section 2(20) read with Section 2(9) and Rules 4(1) and 5 of Order XX of the Code.” 12. Since the matters were the controversy between the parties, it is only a judgment which could have given rise to a decree. The so-called decision of the Small Causes Court, therefore, does not amount to a decree within the meaning of Section 2(20) read with Section 2(9) and Rules 4(1) and 5 of Order XX of the Code.” 12. The Apex Court further held that it was obligatory for the Small Causes Court to set the points for determination and give its finding each on the said points. Nowhere in the entire judgment, the Hon’ble Apex Court has made any such observation which makes it mandatory upon the Judge, Small Causes Court trying a suit under the Provincial Small Causes Court Act to frame issues in accordance with the procedure prescribed by Order XIV of the Code. May be the ‘issues to be framed’ in civil suit and ‘points for determination’ in a suit under Small Cause Courts Act may in effect mean the same i.e. proposition of fact or law affirmed by one party and denied by other on which adjudication is to be made but the same does not necessarily imply that procedure and stage of framing issues in a suit provided under Order XIV CPC is to be followed in a suit under Small Cause Courts Act. 13. The matter can be viewed from another angle. Legislature in Order XIV of the Code has used the words ‘framing of issues’, whereas in Order XX Rule 4 pertaining to Small Causes the words used are ‘points for determination and decision thereon’. The provision of Order XIV relating to ‘Settlement of issues’ having been expressly excluded from its application in suits and proceedings before the Judge, Small Causes under the provisions of Small Cause Courts Act by virtue of Order 50 Rule 1(b) by no stretch of imagination, it can be said that it is mandatory upon the Judge, Small Cause Court while trying a suit under the Provincial Small Cause Courts Act to frame issues as per the procedure prescribed by Order XIV and non-compliance of the said provision would vitiate the proceeding. In view of use use of two different expression by the legislature namely, ‘framing and settlement of issues’ and ‘points for determination’ it cannot be held that the procedure prescribed for framing of issues are to be adhered to or followed by a Judge, Small Causes Court. 14. It is well-settled that when in relation to the same subject-matter different words are used in the same Statute, there is a presumption that they are not used in the same sense unless it leads to unreasonable or irrational results. No doubt the Hon’ble Apex Court had observed in the case of Rameshwar Dayal (Supra) that points for determination referred to in Rule 4(1) are nothing but ‘issues’ contemplated by Rule 1 and 3 of Order XIV of the Code but neither it has been observed specifically nor it can be inferred that procedure and stage prescribed by Order 14 of the Code for framing/settlement of issues is to be followed by the Judge, Small Causes as well while trying a suit under the Provincial Small Causes Court Act. Thus the view taken by learned single Judge in the case of Akhil Kumar Jain (Supra) that it is mandatory to frame issues in suit being tried under the Provincial Small Cause Courts Act is against the ratio of the decision of the Hon’ble Apex Court in case of Rameshwar Dayal (Supra). In view of above facts and discussions, the impugned order rejecting the application of the petitioner to frame issues cannot be said to be illegal requiring interference by this Court. Writ petition stands dismissed in limine. ——————