Appeal No.580 of 1990

16th February, 1999

Petitioner Counsel: Shri. U.B. DUBE
Respondent Counsel: Shri. A.B. NAIK

Cases Cited:
Lilabai Waghele Vs.Keshaorao Tidke. , 1986 Mh.L.J. 207 [Para 4]
Salimkhan Vs Mohammad., 1987 Mh.L.J. 283 [Para 5,6]
1994(2) Mh.L.J. 1650 [Para 6]
1996(2) Mh.L.J. 219 [Para 6]

JUDGMENT

JUDGMENT :- This Civil Revision application is directed against the order passed by Joint Civil Judge Senior Division, Aurangabad on 6th July,1990 on the application Exh.17 from the Small Cause Suit No.84 of 1990.

2. By the application Exh.17, the original defendant/present petitioner has raised a question of jurisdiction of the Small Cause Court, Aurangabad, in view of the provisions of Section 26 of the Provincial Small Cause Court Act of 1887 and Section 28(1) of the Bombay Civil Courts Act 1869.

3. The respondent has filed a Small Cause Suit No. 84 of 1990 for recovery of the licence fee amounting to Rs.1,20,522.60 Ps. The respondent is owner of hotel building consisting of the three floors; ground floor and two floors. On the ground floor, the premises provided a permit room, dining hall, ground floor storage room, lawn,etc. The licence fee has been stated in paragraph No.4 of the plaint. As in accordance with the agreement,licence fee was not paid and the amount referred above was found due, the small cause suit has been filed for recovery of suit amount. The amount of Rs.3,600/- by way of a court fee has been paid on this amount. However, the said suit was being entertained by the Small Cause Court. In view of the suit being entertained by the Small Cause Court, in a written statement paragraph no. 9 the objection was raised "that the plaintiff has not paid the proper court fee and the determination of the jurisdiction is also incorrect. The suit does not lie before the Trial Court. The deflated claim and valuation of the suit is imaginary, incorrect and not conferring the jurisdiction upon the Honourable Court. The suit is not maintainable for lack of jurisdiction and for non payment of adequate court fee. There is no cause of action to file a suit." In view of the objection in paragraph no.9, the application at Exh.17 was submitted and as the said application is rejected, the present Civil Revision Application has been filed. The objection raised by the learned Counsel is to the effect that even though the subject-matter of the suit is covered by Section 26 of the Provincial Small Cause Courts Act, 1887 the Joint Civil Judge Senior Division, Aurangabad which entertained the suit as Small Cause Court, was not a Court constituted under the Provincial Small Cause Courts Act of 1887 and, therefore, the said Court is not entitled to entertain the suit. The learned counsel submitted that the benefit of Section 26 of said Act can be extended to those Small Causes Courts which are established under Section 5 of the Small Causes Courts Act and as the Courts which are empowered with the powers of the Small Causes Court under section 28 of the Bombay Civil Courts Act of 1869 are not the courts covered under section 5 of the Provincial Small Cause courts Act: those Courts cannot entertain the suits covered under Section 26. This objection was opposed by Mr. Naik, learned Counsel appearing for the Respondent. He stated that the Courts which are empowered under Section 28 of the Bombay City Civil Courts Act, 1869 are also Small Causes Courts with a limited pecuniary jurisdiction and, therefore, those Courts are entitled to entertain the suits covered under Section 26 of the Provincial Small Cause Courts Act and in that eventuality, whenever the subject-matter is covered under Section 26, the bar of a pecuniary jurisdiction will not apply and those Courts are entitled to decide those small causes suits.

4. Section 26 provides that not withstanding anything contained elsewhere in this Act, the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possesion of any immovable property situated in the area within the local limits of the jurisdiction of the Court of Small Causes, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings. Section 26 opens with non obstante clause to the effect that these powers can be exercised notwithstanding anything contained elsewhere in this Act. Therefore, the result is that whatever may be the other provisions in this Act, if those provisions are found inconsistent with the power which is invested with the Small Causes Court as invested by this section, then in that eventuality the powers invested under Section 26 will stand and all other provisions which are inconsistent with the said sections will have to be ignored. Sub-section (2) of Section 26 lays down that the powers which have been conferred by sub-section (1) of Section 26 if have been vested in some other forum, under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Provincial Municipal Corporations Act, 1949, or the Maharashtra Housing and Area Development Act, 1976, or any other law for the time being in force, then that special forum will deal with this matter. The combined reading of section 26 (1) and (2) is that if any special Act deals with the suits covered under sub-section (1) of Section 26, then those Courts shall deal with the said suit and provisions of a special Act will prevail. In the absence of that the Small Cause court shall have powers to entertain the suits covered under Section 26 notwithstanding anything contained elsewhere in the said Act. I am supported by the judgment of this Court in 1986 Mh.L.J. 207 [Lilabai Waghele Vs.Keshaorao Tidke], wherein in paragraph no.4 it has been observed that:

"It was contended by Shri Dharmadhikari on behalf of the respondent that in view of the C.P. and Berar Regulation of Letting of Accommodation Act, 1946 and the C.P. and Berar Letting of Houses and Rent Control Order, 1949 being in force in the area from which this litigation arose by virtue of sub-section (2) of Section 26, the provisions of sub-section (1) would not apply and, therefore, no appeal can lie to the District Court under the provisions of section 26A of the Act from the decision of the Court of Small Causes. This argument found favour with the learned Additional District Judge. In order that hte provisions of sub-section (2) of Section 26 may apply, it is necessary to examine the scope of the expression "any other law for the time being in force" which has been used in that sub-section. The opening words of sub-section (2) are "nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immoveable property or of licence fees or charges or rent thereof to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay provincil Municipal Corporation Act, 1949 or the Maharashtra Housing and Area Development Act, 1976, apply." Evidently in order that "any other law for the time being in force" may apply it would be necessary that such other law should make provision for filing suits or proceedings for the recovery of possession or of licence fees or charges or rent. The reason for excluding the class of cases to which these enactments apply is, that they make adequate provision for eviction and recovery of rent and licence fee, and prescribe the forum to which such disputes can be taken and which can grant the necessary relief."

What is pertinent to be noted is that the learned counsel has not pointed out to this Court in order to attract sub-section (2) of Section 26 that any law stated in sub-section (2) has made a provision for the recovery of licence fee which is the subject-matter of the present suit. He has further not pointed out any other law which is for time being in force otherwise than the Acts which have been stated in sub-section (2) which deals with the recovery of the licence fee and, therefore, in the facts of the present case, sub-section (2) of section 26 is not applicable and the subject-matter of the present suit is covered under sub-section (1) of section 26. Therefore, the contention raised by the learned Counsel based on sub-section (2) of Section 26 is hereby rejected.

5. Now the only question requires to be considered is in respect of the contention that the Civil Courts invested with the powers of the Small Causes Court under Section 28 of the Bombay Civil Courts Act, 1869 are Small Causes Court under the Provincial Small Cause Courts Act, 1887 or not and if yes, whether the powers under Section 26 can be exercised by those Courts. It is pertinent to note that this question has been thoroughly dealt with and considered by this Court in 1987 Mh.L.J. 283 (Salimkhan Vs Mohammad). In paragraph no.5 the Court has observed:

"The suit in question was instituted in the Court of the Civil Judge (Senior Division) Achalpur, who had been invested with powers to try small cause suits of the value upto 1,800/- section 28 of the Bombay Civil Courts Act. Under section 4 of the Provincial Small Cause Courts Act, unless there is something repugnant in the subject or context, "Court of Small Causes" means a Court of Small Causes constituted under the Act, and includes any person exercising jurisdiction under the Act in any such Court. The combined effect of this section and section 28 of the Bombay Civil Courts Act. would be that the Civil Judge (Senior Division), Achalpur by virtue of the powers invested on him by the High Court will have the jurisdiction of a Court of Small Causes ordinarily upto a particular limit. Chapter IV-A of the Provincial Small Cause Courts Act, which was introduced by the Amending Act XXIV of 1984, creates a larger jurisdiction for entertaining the suits and proceedings which till the amendment could not be entertained by the Court of Small Causes and makes the orders and decrees of the Court of Small Causes subject to an appeal to the District Court...... Section 15 of the Provincial Small Cause Courts Act prohibits a Court of Small Causes from taking cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes, but subject to the exceptions specified in the schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed two thousand rupees shall be cognizable by a Court of Small Causes. Under Section 16, exclusive jurisdiction is conferred on the Court of Small Causes in respect of the suits cognizable by that Court save as expressly provided by this Act or by any other enctment for the time being in force. In view of the non-obstante clause, with which section 26 begins, evidently nothing to the contrary contained in sections 15 and 16 would prevent the court of Small Causes from exercising the jurisdiction to entertain and trying the suits of the description mentioned in section 26(1). This means that neither the pecuniary limit mentioned in sub-section (2) of section 15, nor whatever is mentioned in second schedule would operate to affect the jurisdiction of the Court of Small Causes in respect of the suits to which section 26 refers. The effect would, therefore, be that whatever may be the pecuniary jurisdiction conferred on a court of Small Causes under section 28 of the Bombay Civil Courts Act, or section 15 of the Provincial Small Cause Courts Act, it shall have the jurisdiction to entertain and decide the category of suits enumerated in section 26 of the Provincial Small cause Courts Act."

Thus, this court has already laid down that the Civil Courts which are empowered under section 28 of the Bombay Civil Courts Act, 1869 of the power of the Small Causes Courts Act, are the Small Causes Courts under the Provincial Small Cause Courts Act. 1887 in view of the definition of the "Court of Small Causes" given in section 4 of the said Act and has further laid down that the said Court is entitled to exercise the jurisdiction under section 26 irrespective of the pecuniary limits of said Court provided while investing the powers under section 28 of the Bombay Civil Courts Act. In the present matter, there is no dispute over the fact that the Joint Civil Judge Senior Division, Aurangabad is empowered under section 28 of the Bombay Civil Courts Act. 1869 to deal with the powers of the Small Causes Courts and once that Court is found to be a Small Cause court, in view of the provisions of Section 28 of the Bombay Civil Courts Act, the said Court is empowered to decide the present suit, which pertains to the recovery of the licence fee. Thus, I find that the claim made by the learned Counsel that the Courts which are invested with the powers of the Small Causes Courts under section 28 cannot be said to be the Small Causes Courts under the Provincial Small Cause Courts Act, 1887 is misconceived and is hereby rejected. Therefore, the Trial Court has rightly considered this aspect and has rejected the application at Exh.17.

6. Before I part with this judgment, I must make a reference to the unreported judgment, which has been referred to by the learned Counsel for the petitioner from the Second Appeal No.227 of 1997 and he tried to submit that the judgment reported in 1987 Mh.L.J. 207 is held to be per incuriam. In view of the submission, this judgment was scrutinized and I find that this judgment has not decided any question. Only reference has been made to the provisions of law from the Bombay Civil Courts Act, 1869 and the Provincial Small Cause Courts Act, 1887 and the Court has only recorded the dissent with the three judgments which were cited, namely 1987 Mh.L.J.283, 1994(2) Mh.L.J. 1650 and 1996(2) Mh.L.J. 219. However, no reasons have been assigned as to why the Court is in disagreement with these judgments. And by such reasoning, the judgment cannot be held to be decided to be per incuriam. On the contrary, the said point of jurisdiction was raised for first time in the Appellate Court in the Second Appeal and the Court refused to allow the learned Counsel to raise that question and, but has refused to consider the point raised as being raised for the first time in the Second Appeal. Therefore, this judgment cannot be said to lay down the law that the three judgments which have been referred to earlier are per incuriam. This court find that the law laid down in 1987 Mh.L.J. 207 and 1994(2) Mh.L.J. 1650 and 1996(2) Mh.L.J. 219 is still a good law and the judgment in Second Appeal No.227 of 1997 is of no consequence.

7. As I find in para No. 9 that the objection in respect of the Court fee has been raised, I scrutinized this matter from that angle also and it is noticed that the court fee of Rs.3,100/- has been paid which is a proper Court fee on the amount of Rs.1,20,522.60 Ps. and, therefore, the said contention raised in the written statement is also required to be rejected.

8. In view of the above observations, the present Civil Revision Application is without any substance. It is hereby rejected. So far as the Civil Application No. 5240 of 1992 filled in this revision application is concerned, the learned Counsel Shri Naik states that it does not survive and it may be disposed of. It is accordingly disposed of. Rule discharged accordingly.

9. The suit is of the year 1990. Because of this Civil Revision Application and the stay granted by this Court, the suit was not proceeded with. Looking to the fact that the matter is old one, it is hereby directed that the Small Causes Court at Aurangabad shall dispose of the suit within a period of six months.

Application dismissed.