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2014 DIGILAW 796 (ALL)

SARDAR SURJEET SINGH v. SURESH CHANDRA PORWAL

2014-03-06

HET SINGH YADAV

body2014
JUDGMENT Hon’ble Het Singh Yadav, J.—This SCC revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short the Act) has been preferred against the order dated 21.1.2014 passed by the Small Causes Court (in short SCC)/Additional District Judge, Court No. 6, Etawah in SCC Suit No. 10 of 2011, whereby the application of the revisionists/defendants purported to have been moved under Order XIV Rule 5 Code of Civil Procedure (in short the C.P.C.) for framing additional issues was rejected. 2. Heard learned counsel for the revisionists. 3. The moot question that falls for determination in this revision is-whether the provisions of Order XIV of the C.P.C. can be invoked for application by the Courts exercising the jurisdiction of a Court of small causes under ‘the Act’ and secondly that the framing of additional issues in the instant case, as proposed by the defendants/revisionists was necessary for determining the matter at issue between the parties? 4. The question arises in the following back drop: The opposite party/plaintiff, to begin with, instituted the suit in question for recovery of rent and ejectment in the Court below against the defendants/revisionists, inter alia, on the ground of default of payment. The defendants entered appearance by filing their joint written-statement. On the basis of pleadings of the parties, the Court below framed in all nine issues. The defendants, however, moved an application seeking amendment in their joint written statement. The Court below allowed the application and as a consequence the written statement came to be amended. The plaintiff also filed his additional pleading, by way of replica. The defendants, thereafter, moved Application No. 58-C purported to be under Order XIV Rule 5 C.P.C. praying therein that in view of amended pleadings, following additional issues were rendered necessary to be framed for determining the matter in controversy between the parties : (i) Whether the defendants are in possession of the shop in question as tenants? (ii) Whether the suit is barred by principle of estoppel and acquiescence? And; (iii) Whether the suit is bad for want of notice? 5. The Court below in its discretion rejected the application observing that the issues already framed extend its coverage to the proposed issues, and therefore, additional issues were not required to be framed. (ii) Whether the suit is barred by principle of estoppel and acquiescence? And; (iii) Whether the suit is bad for want of notice? 5. The Court below in its discretion rejected the application observing that the issues already framed extend its coverage to the proposed issues, and therefore, additional issues were not required to be framed. If need be, points necessary for determination would be framed at the time of judgment and further that framing of issues was also not necessary in SCC suit. 6. The learned counsel for the revisionists made a bid to assail the impugned order both on factual as well as legal grounds. It is contended that framing of proposed additional issues will not prejudice either of the parties, and that rather, the points for determination would be more specific and would help adducing evidence and further determining the matter in controversy finally. Learned counsel laid stress submitting that Rule 4 (1) of Order XX C.P.C. clearly provides that the judgment of Court of small causes shall contain points for determination and decision thereon; that the provisions of Order XIV C.P.C. shall also extend to the Courts constituted under ‘the Act’ and that the points for determination is nothing but the issues as contemplated under Rule 1 and 3 of Order XIV C.P.C. The Court below, it is argued, was under legal obligation to frame the proposed additional issues as embodied in Rule 5 of the Order XIV C.P.C. Thus, it is submitted, the order impugned herein is impaired and runs against the established principles of law and justice, and accordingly, deserves to be set aside. He further argued that the Court below may be directed to allow the application 58-C and to frame additional issues on such term as it thinks fit. 7. To bolster his above submissions learned counsel for the revisionists placed reliance on the judgment of the Hon’ble Supreme Court passed in Rameshwar Dayal v. Banda, 1993 (1) ARC 249 and following two judgments of this Court: i.e. (1) Vikas Pawar v. Smt. Tara Rani and another, 2005 (1) ARC 196. (2) Akhil Kumar Jain v. Smt. Sharda Devi, 2011 (114) RD 447. 8. I have bestowed my most careful consideration to the submissions made by the learned counsel for the revisionists and have also been taken through the legal propositions and the materials on record. 9. (2) Akhil Kumar Jain v. Smt. Sharda Devi, 2011 (114) RD 447. 8. I have bestowed my most careful consideration to the submissions made by the learned counsel for the revisionists and have also been taken through the legal propositions and the materials on record. 9. It is worthy of notice here that the suits cognizable by the small cause Court up-to certain pecuniary limits are civil in nature, triable exclusively by such Courts. Section 15 of ‘the Act’ bars jurisdiction of the Court of small causes to take cognizance of the suits specified in the Second Schedule of ‘the Act’. Thus, the scope and jurisdiction of small causes Court is limited to suits exclusively triable by it and to the extent as mentioned in ‘the Act’. The jurisdiction of small causes Court is not concurrent with the ordinary civil jurisdiction of Courts. Save, in so far as is otherwise provided by C.P.C. or by ‘the Act’, the procedure prescribed in the C.P.C. shall be the procedure followed in a Court of small causes in all suits cognizable by it as enacted in Section 17 of ‘the Act’ which reads thus : “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 that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed]. (2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by Section [145] of the Code of Civil Procedure, [1908] (5 of 1908).” 10. (2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realised in manner provided by Section [145] of the Code of Civil Procedure, [1908] (5 of 1908).” 10. The words “ Save in so far as is otherwise provided by that Code or by this Act” mentioned in sub-section (1) of Section 17 of ‘the Act’ have specific connotation. In my considered view, it clearly carries connotation that such provisions of C.P.C. as specified in the C.P.C. itself and ‘the Act’ regarding their non-application to SCC suit shall not extend to the Court constituted under ‘the Act’. In this context provisions of Order L of the C.P.C. being also relevant is excerpted below : “1. Provincial Small Cause Court.—The provisions herein specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1987) [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) the following rules and order : Order II, rule 1 (frame of suit); Order X, rule 3 (record of examination of parties); Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment; Orders XVIII, to rule 5 to 12 (evidence); Orders XLI to XLV (appeals) Orders XLVII, rules 2,3,5,6,7 (review); Order LI Statement Amendments Allahabad.—In Order L, in rule 1, in clause (b), after the words “Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment”, insert the words” and Rule 5.” 11. On conjoint reading of Section 17 of ‘the Act’ and Order L of the C.P.C. it emerges out that the provisions of settlement of issues as enacted in Order XIV C.P.C. shall have no application in the suits cognizable by Court of small causes. On conjoint reading of Section 17 of ‘the Act’ and Order L of the C.P.C. it emerges out that the provisions of settlement of issues as enacted in Order XIV C.P.C. shall have no application in the suits cognizable by Court of small causes. Thus, in view of foregoing provisions of ‘the Act’ and regard being had to the provisions of the C.P.C. it leaves no manner of doubt that the Court of small causes is not required to frame the issues on the first date of hearing in a suit cognizable by it. 12. Coming to the submissions of learned counsel for the revisionists that points for determination referred in Order XX Rule 4 (1) are nothing but issues as contemplated by Rule 1 and 3 of Order XIV C.P.C. and the small causes Court is also bound to settle issues on the first date of hearing as in case of other suits triable by a Court of ordinary civil jurisdiction, I am of the view that the submission is loaded with substance. I have no manner of doubt that the points for determination are the actual points in controversy which need to be decided for the correct decision of a civil dispute. One of the significant and noticeable differences between a suit triable by Court of ordinary civil jurisdiction and a suit cognizable by the Court of small causes is that in the latter-one, such provisions of C.P.C. as envisaged vide Order L including formal settlement of the issues on the first date of hearing of the suit have no application but at the same time, I would hasten to add that complete C.P.C. is applicable in the former and by this reckoning, settlement under under Order XIV Rule 1 and 3 C.P.C. is rendered necessary. Rule 4 (1) of Order XX C.P.C. however, says that judgment of a Court of small causes contains the points for determination and the decisions thereon, the necessary implication of which is that the points for determination are required to be framed in the judgment of small causes Court and their prior settlement is not a condition precedent. 13. Rule 4 (1) of Order XX C.P.C. however, says that judgment of a Court of small causes contains the points for determination and the decisions thereon, the necessary implication of which is that the points for determination are required to be framed in the judgment of small causes Court and their prior settlement is not a condition precedent. 13. In connection with the above discussion, I feel called to refer to the decision in Rameshwar Dayal’s case (Supra) relied upon by the learned counsel for the revisionists, in which the Apex Court held the view that points for determination are nothing but issues. The facts of that case were- a SCC suit for recovery of rent and ejectment was filed by Rameshwar Dayal in the Court of small causes. According to him original tenant Habib sublet the property to one Banda. The suit was filed against Habib and Banda both. The small causes Court decreed the suit ex parte against both the defendants though Banda had filed his written statement. The application for setting aside the ex parte decree filed by Banda was dismissed. He preferred revision before the District Judge which was also dismissed. Later on, Banda filed a suit against Rameshwar Dayal in the Civil Court on the basis of his title as owner of the property, subject-matter of SCC suit claiming reliefs: (a) decree passed by the judge small causes Court was nullity. (b) an injunction restraining Rameshwar Dayal from dispossessing him of the property. The trial Court dismissed the suit recording findings that plaintiff Banda was not the owner of the property. It was Rameshwar Dayal, who was owner. The appeal preferred by Banda was allowed. The judgment of the trial Court was set aside and the suit was decreed in favour of Banda. The second appeal filed by Rameswhar Dayal was dismissed by the High Court. Rameshwar Dayal then preferred SLP with two contentions before the Supreme Court : (1) the decree passed by a Court of competent jurisdiction would not be declared as not binding upon the person who was a party to the suit and (2) that the judgment of the small causes Court shall operate as res-judicata between the parties. Rameshwar Dayal then preferred SLP with two contentions before the Supreme Court : (1) the decree passed by a Court of competent jurisdiction would not be declared as not binding upon the person who was a party to the suit and (2) that the judgment of the small causes Court shall operate as res-judicata between the parties. The Apex Court held that Banda filed his written statement in the SCC suit contending that he was owner of the property in question being in possession of the same since the time of his ancestor. It is specifically denied by him that he was living as sub-tenant. The Apex Court clearly observed that the Court of small causes did not take any cognizance of the written statement filed by Banda and had not set out the points for determination and there was no reference in the judgment to the question of title to the suit property raised therein nor there is decision on the point even remotely. The Apex Court was of the view that the small causes Court did not decide the issue with regard to the title of the property and thus, the bar of res-judicata would not apply. So far as the question whether the decision of the small causes Court is binding on Banda was concerned, it was observed by the Apex Court that small causes Court in its judgment had not even remotely noticed the matter in controversy between the parties so far as it relates to the dispute of title and, therefore, there have been no adjudication or decision on the said matter and observed that since the small causes Court in its decision had not even stated points for determination and had not given finding thereon, the judgment rendered by that Court was not a judgment. 14. In the instant case, as is clearly perceptible on perusal of the impugned order, the situation is entirely different. In this case, undisputedly, deceased, father of the defendants/revisionists was the tenant of the plaintiff/respondent. After his death, the tenancy devolved on defendants who became tenants. Thus, the relationship of landlord and tenant between the parties is an admitted fact and obviously question of title is not involved in this case even remotely. The Court below has already framed nine issues on the first date of hearing. After his death, the tenancy devolved on defendants who became tenants. Thus, the relationship of landlord and tenant between the parties is an admitted fact and obviously question of title is not involved in this case even remotely. The Court below has already framed nine issues on the first date of hearing. After incorporation of certain amendments in the pleadings of the parties, the defendants/revisionists moved Application No. 58 -C with a prayer to frame additional issues proposed in the application purported to be under Order XIV Rule 5 C.P.C. The Court below dismissed the application observing that the issues already framed cover the proposed issue as well and no additional issue is necessary to be framed. Thus, the ratio laid down by the Apex Court in Rameshwar Dayal’s Case (Supra), which is manifestly on the question that judgment of small causes Court shall not operate as res-judicata between the same parties in a subsequent suit of title, has no application to the facts and circumstances of the present case. The learned counsel for the revisionists has failed to explain as to how the factual situation of the instant case fits in with the facts and circumstances of Rameshwar Dayal’s Case (Supra) on which the reliance is placed. Moreover, in Rameshwar Dayal’s case (Supra), the Apex Court has not observed even faintly that settlement of issues on the first date of hearing as envisaged under Order XIV C.P.C. is necessary for SCC suit also. 15. This Court in Vikas Pawar’s Case (Supra) and Akhil Kumar Jain’s Case (Supra) following the decision of Rameshwar Dayal’s case (Supra) held that regard being had to the Order XIV Rules 1 and 3 of the C.P.C., framing of issues on the first date of hearing is obligatory upon the Court of small causes like any other civil suit triable by a Court of ordinary civil jurisdiction without considering the provisions of Section 17 of the Act and Order L C.P.C. 16. As discussed above, in Rameshwar Dayal’s Case (Supra), the Apex Court mainly and categorically decided the question that the judgment of small causes Court shall not operate as res-judicata between the same parties in a subsequent suit of title, particularly in peculiar facts and circumstances of that case in which the small causes Court decided the previous suit for rent and ejectment by ex parte judgment- even ignoring the written statement filed by the defendant Banda in which he had clearly made a plea of his title in the suit property. The judgment of the small causes Court conspicuously did not contain the points for determination as laid down in Rule 4 (1) of Order XX C.P.C., on the issue of title raised by the defendant in his written statement. 17. In the above conspectus, I veer round to the view that Rameshwar Dayal’s Case (Supra) cannot be imported for application to the facts and circumstances of the instant case. 18. In Vikas Pawar’s Case (Supra) SCC suit was filed for arrears of rent and ejectment. The defendant, however, denied relationship of landlord and tenant. He moved application praying that issues be framed prior to recording evidence. The Judge Small Causes Court rejected the application observing that in SCC suit framing of issues before recording the evidence is not necessary and that the finding can be given on the points involved in the case at the time of judgment. This Court allowed the revision preferred by the defendant under Section 25 of the Act relying upon the ratio laid down in Rameshwar Dayal’s Case (Supra) and held that if issues are framed there will be no prejudice to either of the parties and points will be more specific and it will be helpful in adducing evidence and deciding the case. 19. In Akhil Kumar Jain’s Case (Supra) facts were that in SCC suit, the tenant/defendant moved application for framing of issues prior to recording the evidence. The JSCC rejected the application on the ground that it is not mandatory to frame issues in SCC suit. In revision, this Court, relying upon the ratio laid down in Rameshwar Dayal’s Case (Supra) held that the issues should be framed before proceeding with the case and the view of the Court below that it is not mandatory to frame issues in SCC suit is not correct. 20. In revision, this Court, relying upon the ratio laid down in Rameshwar Dayal’s Case (Supra) held that the issues should be framed before proceeding with the case and the view of the Court below that it is not mandatory to frame issues in SCC suit is not correct. 20. In Ambica Quarry Works v. State of Gujarat and others, (1987) 1 SCC 213 , the Apex Court held thus: “The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.” 21. In Haryana Financial Corporation and another v. Jagdamba Oil Mills and another, (2002) 3 SCC 496 , the Apex Court held thus: “Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not be interpreted as statues.” 22. In Delhi Administration v. Manohar Lal, (2002) 7 SCC 222 , the Apex Court held thus: “The High Courts and all other Courts in the county were no doubt ordinate or to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately to the cases before them”. 23. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 , the Apex Court held thus: “A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. 23. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 , the Apex Court held thus: “A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little deference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 24. In the cases of Vikas Pawar and Akhil Kumar Jain (supra), this Court placed reliance on the decision of the Apex Court in Rameshwar Dayal’s Case (Supra) without discussing as to how the factual situation of above two cases is congruent with the fact situation of the decision of Rameshwar Dayal’s Case (Supra). In Rameshwar Dayal’s Case issue of res-judicata and binding effect of the judgment passed ex parte in previously instituted suit without forming points for determination, in a subsequently instituted suit, between the same parties were decided. Thus, manifestly the factual situation of Rameshwar Dayal’s Case (Supra) does not fit in with the fact situation of Vikas Pawar’s case and Akhil Kumar Jain’s Case decided by this Court. The ratio laid down in Rameshwar Dayal’s Case, therefore, has no application in the aforementioned two cases cited by the learned counsel for the revisionists. Besides, the decision passed in both the aforementioned cases does not take into account the provisions of Section 17 of the Act and Order L C.P.C. and as such are per-incuriam. 25. The procedural law is enacted to regulate the proceeding in Court and the case proceeding should be conducted strictly in accordance with the prescribed procedure. The Provincial Small Cause Courts Act has been enacted with the object to decide the cases triable by the SCC expeditiously. It is for this reason that as per Section 17 of the Act and Order L C.P.C., so many provisions of C.P.C. are not made applicable to the proceeding of SCC suit and further the decree passed by the SCC has been given finality and the decision is not appealable. 26. Since the provisions of settlement of issues contained in Order XIV has not been extended to the Courts constituted under ‘the Act’, the Application No. 58-C moved by the defendants for framing the additional issues purported to be under Rule 5 Order XIV C.P.C. is not legally maintainable. 26. Since the provisions of settlement of issues contained in Order XIV has not been extended to the Courts constituted under ‘the Act’, the Application No. 58-C moved by the defendants for framing the additional issues purported to be under Rule 5 Order XIV C.P.C. is not legally maintainable. The impugned order is completely justified in view of provisions of Section 17 of ‘the Act’ and Order L C.P.C. 27. In view of above factual and legal proposition discussed as above the impugned order passed by the Court below does not suffer from any illegality or infirmity and by this reckoning, the revision being devoid of merits is liable to be dismissed. 28. The revision is, accordingly, dismissed.