BHANIBEN Vs. NARAYAN POTTERY WORKS

JUDGEMENT

(1.) In this group of revision applications, a common question is involved, arising out of common provisions. Therefore, these matters are taken up together, upon the request of learned counsels appearing for the parties, and the matters are being disposed of by this common judgment, in a reference made by the learned Single Judge by order dated 10-10-2001 in Civil Revision Applications Nos.601 to 609 of 2001. The learned Single Judge has referred these matters to this Division Bench, in view of the referral order under Rule 5(2) of the Gujarat High Court Rules, 1993. It is jointly and rightly stated before us that the factual profile of each revision, is not required to be articulated, since common question of law is arising out of the provisions of [The] Presidency Small Cause Courts Act, 1882 (Act 15 of 1882) (for short `the Act'). The controversy, even on facts, is common, but some of the facts may be diverse in revisions.

(2.) The learned Single Judge has raised a question whether an application under Section 38 of the Act, is maintainable against the order for possession, mainly, application under Section 41 of the Act.

(3.) In the order of the learned Single Judge, the decision of this Court rendered by the then Hon'ble Chief Justice in Civil Revision Application No.1948 of 1996 pronounced on 23-12-1996, was relied upon, wherein, it has been observed that it would be open to the aggrieved party to prefer a revision before the appellate Bench, seeking new trial, by an application under Section 38 of the Presidency Small Causes Courts Act, against the order, mainly, the proceedings under the Act, which are known as P.S.R.P. The learned Single Judge did not agree with the view stating that Section 38 of the Act applies to a "Suit", which has been decided by the Small Causes Court, and the case under Section 41 of the Act, is not a "Suit", but an "Application". He also relied on the view propounded by this Court in a Single Bench decision in Girjashanker Prabhashanker Raval, Ahmedabad v. Manharlal Jetashanker Dave, Ahmedabad reported in 1983 GLH 865. It is in this context that when two divergent views were expressed by the concurrent Benches, the learned Single Judge referred the entire group of matters to the Division Bench, under Rule 5(2) of the Gujarat High Court Rules, 1993. In fact, Rule 5(1) applies in case of reference by a learned Single Judge to a larger Bench. Rule 5(1) provides that a Single Judge may refer any matter before him or question arising in such matter to a division bench of two Judges, or a larger bench, whereas Rule 5(2) provides that a Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under sub-rule (1) above to a Larger Bench. Of course, it is a mere slip of pen, and has no material bearing at this stage.