SHANTI DEVI Vs. HARISH CHANDRA

JUDGEMENT

(1.) The respondent herein filed a suit before a learned Subordinate Judge, I Class, Delhi, for the recovery of Rs.1,000.00onthe basis of a Hundi dated 15/9/1965. The petitioner herein applied for leave to defend the suit. In support of his application he disputed the claim of the respondent on merits and also put forward the contention that the suit was cognizable by the Small Cause Court and, therefore, the learned Subordinate Judge had no jurisdiction. By an order dated 20/9/1966, the learned Subordinate Judge granted leave to the petitioner to appear and defend the suit subject to the condition that the petitioner deposited the suit-amount of Rs. 1,000.00 together with a sum of Rs. 200.00 on account of estimated costs. While passing this order, the learned Subordinate Judge negatived the contention of the petitioner on the question of jurisdiction. With regard to the defence on merits, the learned Subordinate Judge stated that although the denial of execution and consideration leads to a triable issue still in his opinion, the defence was not bona fide and had been raised only to delay the proceedings and to deny the plaintiff the advantage of the summary provisions of Order 37, Code of Civil Procedure.

(2.) If the question relating to the jurisdiction of the Court was not involved in this case, there would have been hardly any justification for interfering with the order of the learned Subordinate Judge under Section 115, Code of Civil Procedure. However, in my opinion the question of jurisdiction of the Court raised by the petitioner was a substantial one and also appears to be prima facie correct. The argument is that under Section 15(3) of the Provincial Small Cause Courts Act, 1887, the State Government is enabled to direct that all suits of the Civil nature of which the value does not exceed one thousand rupees shall be cognizable by the Court of Small Causes and such a direction has been made by the Competent Government with reference to the territory of Delhi and because of this, Section 16 of the Act bars the jurisdiction of other Courts in respect of such suits. The argument of the learned counsel is that so long as the value of the suit does not exceed Rs. 1,000.00, the suit will be cognizable only by a Small Cause Court irrespective of the fact whether the suit is based on bills of exchange, hundis or promissory notes or not. The learned Subordinate Judge appears to have taken the view that since Order 37 has not been made applicable to Small Cause Courts, the present suit will not be cognizable by the Small Cause Court and can be proceeded with by him. I am of the view that the opinion of the learned Subordinate Judge is not correct. Order 37 of the Code of Civil Procedure is merely a procedural provision and has nothing whatever to do with the jurisidction of the Courts either pecuniary or territorial. There is absolutely nothing to indicate either in the provisions of the Code of Civil Procedure or in the provisions of the Provincial Small Cause Court Act, 1887. that a suit though cognizable by a Court of Small Causes will cease to be so, simply because the suit is of such a nature to which provisions of Order 37 will apply. The applicability of Order 37 of the Code of Civil Procedure has no relevancy whatever lo the question of jurisdiction. If a suit of such a nature as is referred to in Rule 2 of Order 37 is instituted in a competent Court of jurisdiction, then the provisions of Order 37 will apply to such a suit if the same are applicable to the Court concerned, under Rule I of order 37. It is wrong to approach the question from the angle that the suit in question is of such a nature to which Order 37, Code of Civil Procedure, will apply and, therefore, only such Courts to which Order 37, Code of Civil Procedure, will apply will have jurisdiction over the suit. For these reasons, I am of the view that the conclusion of the learned Subordinate Judge in relation to the question of jurisdiction is incorrect and the suit, as framed, is exclusively triable only by a Court of Small Causes. Hence, I set aside the order of the learned Subordinate Judge with the result that the learned Judge will have to return the plaint for presentation to the appropriate Court of Small Causes.

(3.) The learned counsel for the respondent submits that he may be permitted to amend the plaint so as to make the suit fall within the jurisdiction of the learned Subordinate Judge, I do not think I can give him any such permission at this stage. However. I may point out that this order of mine will not debar the respondent from filing any application for such an amendment or the Court from ordering such amendment, if the same is permitted under law. This Civil Revision Petition is allowed accordingly but there will be no order as to costs.