LALA HARI SHYAM Vs. MANGAL PRASAD

JUDGEMENT

(1.) SATISH Chandra, C. J. The decree-holder appellant filed suit No. 555 of 1968 in the Court of Munsif (East) Allahabad, for recovery of Rs. 1,360/- from the judgment-debtor-respondent. The learned Munsif decreed the suit on May 15, 1972, for Rs. 1,088/- only. The decree became final because no appeal or revision etc. was filed by the defendant against it.

(2.) THE decree-holder filed an application for recovery of Rs. 1,240-35 in execution of the aforesaid decree. THE judgment-debtor appeared and filed an objection under S. 47 C. P. C. He, inter alia, pleaded, that the Court which passed the decree (namely, Munsif (East), Allahabad) had no jurisdiction to decree the suit, because the suit was cognizable exclusively by the Judge Small Cause Court, Allahabad. THE decree passed by the learned Munsiff was without jurisdiction and a nullity, and was as such inexecutable. THE learned Munsiff (East), relying upon a single Judge decision of this Court in Khairullah v. Badri, AIR 1973 All 340 upheld this objection. He held that the decree under execution was a nullity. It was not executable. THE application for execution of the decree was dismissed. 3. THE plaintiff went up in appeal. THE appellate Court upheld the findings and dismissed the appeal. Aggrieved the plaintiff came to this Court in execution second appeal. 4. Before the learned single Judge a decision by Mr. Justice Gopi Nath in Radhey Shyam v. Komil, 1979 All CJ 141 was cited. In this decision Mr. Justice Gopi Nath distinguished the case of Khairullah (supra), and held that in cases where no objection to the jurisdiction of the Trial Court is taken in that Court and the decree becomes final, the judgment-debtor cannot challenge the decree on the execution side. 5. THE learned single Judge hearing this appeal felt that there was a conflict of opinion in this Court, and since the question is of frequent occurrence, an authoritative pronouncement by this Court was needed. He, therefore, referred the case to a Larger Bench. That is how the matter has come before this Bench. 6. THE question whether the present suit was cognizable by the Regular Civil Courts or by the Small Cause Courts depends upon a true and correct construction of Ss. 15 and 16 of the Provincial Small Cause Courts Act. 7. Section 15 of the Provincial Small Cause Courts Act provided - "15. Cognizance of sans by Court of Small Causes.- (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes: (2) Subject to the exceptions specified in that 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 five hundred rupees shall be cognizable by a Court of Small Causes; (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the Order. " Section 16 then read: - "16. Exclusive jurisdiction of Courts of Small Causes.- Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. " 8. THE U. P. Civil Laws Amendment Act, 1968 (President's Act No. 35 of 1968) which came into force on 2nd December, 1968, by S. 5 amended S. 15 of the Provincial Small Cause Courts Act as follows : - "5. Amendment of Section 15 - In Section 15 of the Provincial Small Cause Courts Act, 1887 (9 of 1887) - (a) in sub-section (2) for the words 'five hundred rupees' the words 'one thousand rupees' shall be substituted; (b) in sub-section (3), for the words 'one thousand rupees' the words 'two thousand rupees' shall be substituted. " 9. THE result was that with effect' from December 2, 1968, sub-sec. (2) of S. 15 became operative in respect of suits of the value up to Rs. 1,000/ -. Further, sub-sec. (3) authorised the State Government to make direction in respect of suits of civil nature of which the value does not exceed Rs. 2,000/- to be cognizable by a Court of Small Causes mentioned in the order. 10. In pursuance of S. 15 (3), the State Government issued a notification dated September 23, 1969, stating that - "in exercise of the powers conferred by sub-section (3) of Section 15 of the Provincial Small Causes Courts Act, 1887 (No. IX of 1887), as amended by the U. P. Civil Laws (Amendment) Act, 1968, (President's Act No. XXXV of 1968), the Governor is pleased to direct with immediate effect that subject to the exceptions specified in the first mentioned Act 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 the Courts of Judge, Small Causes, Bareilly, Moradabad, Meerut, Gorakhpur, Aligarh, Kanpur, Allahabad, Varanasi, Agra, Lucknow and the Court of Additional Judge, Small Causes, Lucknow. " 11. It will be seen that S. 15 (3) does not itself confer jurisdiction on the Courts of Small Causes. It authorised the State Government to make a direction in that behalf. On September 23, 1969 the State Government made the requisite direction in respect of Judge Small Causes, of the mentioned ten cities of which Allahabad was one. 12. In view of the State Government notification suits of a civil nature (subject to the exceptions) of which the value does not exceed Rs. 2,000/- became, with effect from September 23, 1969, cognizable by the Judge, Small Causes, of the ten mentioned places. In virtue of Section 16 of the Provincial Small Cause Courts Act, the jurisdiction of the ordinary Civil Courts to take cognizance of civil suits up to the value of Rs. 2,000/- ceased with effect from September 23,195. THE regular Civil Courts continued to retain jurisdiction to take cognizance of such civil suits between the value of Rs. 1,000/- and Rs. 2,000/- till September 23, 1969. THE present suit was instituted in 1968. On the date of its institution the Civil Courts, namely, learned Munsif, had jurisdiction to take its cognizance, that is, to entertain and try it. 13. Section 15 relates to cognizance. Its sub-section (1) prohibits the Court of Small Causes form taking cognizance of suits specified in Second Schedule. In other words, suits specified in the Second Schedule could not be entertained by the Court of Small Causes. Naturally such suits could not be tried by it. 14. Sub-section (2) as well as sub-sec. (3) also confine themselves to cognizability by the Court of Small Causes. Cognizability is power to entertain and try. When the President's Act No. XXXV of 1968 increased the cognizability of the Small Cause Courts from Rs. 500/- to Rs. 1,000/- by amending subsection (2) of Section 15 with effect from 2nd December, 1968, it is with effect from 2nd December, 1968, that the Provincial Small Cause Courts became entitled to entertain and try suits of the value between Rs. 500/- and Rs. 1,000/ -. Similarly, the Courts of Small Causes of the ten places mentioned in the Notification of the State Government of September 23, 1969, were conferred power to entertain suits of civil nature of the value up to Rs. 2,000/with effect from September 23, 1969. Ex. hypothesi, the Courts of Small Causes had no authority to entertain a suit between Rs. 1,000/- and Rs. 2,000/in value prior to September 23, 1969. Such suits could only be entertained by the Regular Civil Courts prior to September 23, 1969. 15. On behalf of the decree-holder appellant, it was submitted that the Court of Small Causes had no authority to entertain a civil suit of the value between Rs. 1,000/- and Rs. 2,000/- instituted prior to September 23, 1969. THE President's Act XXXV of 1968 which brought about the amendment did not specifically provide for the transfer of such suits pending in the regular Civil Courts to the Court of Small Causes. A Small Cause Court could try only such suits of which it could take cognizance. Evidently the Small Cause Court had no jurisdiction to try a suit filed prior to September 23, 1969, if the value of the civil suit was between Rs. 1,000/- and Rs. 2,000/ -. Hence regular Civil Courts would continue to retain jurisdiction to try such suits filed prior to September 23, 1969 before them. 16. THE submission is plausible, Construing Ss. 15 and 16 of the Provincial Small Cause Courts Act a Full Bench of our Court in Manzurul Haq v. Hakim Mohsin Ali, AIR 1970 All 604 held that the Courts of Small Causes are courts of preferential, and not exclusive, jurisdiction. This decision has been approved by the Supreme Court, Smt. Gangabai v. Smt. Chabubai (AIR 1982 SC 20 ). THE necessary corollary is that the regular Civil Courts do not totally lose jurisdiction. THEy are Courts of plenary jurisdiction. Under S. 9 C. P. C. they have authority to entertain and try all suits of civil nature. 17. When the Legislature wishes to provide for pending suits, it does say something about it. For example, the U. P. Civil Laws (Amendment) Act (XXXVII of 1972) contained a transitory provision in S. 9. It provided - "9. Transitory provision.- Any suit of the nature referred to in the proviso to sub-section (1) and sub- section (2) of Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, (whether its value exceeds two thousand rupees, or as the case may be, one thousand rupees, or not) or the proviso to subsection (3) of Section 15 of the Provincial Small Cause Courts Act, 1887, instituted before the date of commencement of this Act in any Court other than a Court of Small Causes or Court of Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes and pending in that Court immediately before the said date, not being a suit in which the recording of oral evidence for any party has commenced or concluded before the said date, shall upon the conferment of jurisdiction or enhanced pecuniary jurisdiction on a Civil Judge Munsif, District Judge or Additional District Judge or on a Court of Small Causes under the said provisions stand transferred to such Court and shall be decided by that Court. " 18. THE effect of this transitory prevision was that suits in which recording of evidence had begun before the relevant date could continue to be tried by the Regular Courts. THE decrees passed in such suits could not hence be treated as nullity. 19. A five-Judge Full Bench Bisheshwar Prasad Gautam v. Dr. R. K. Agarwal (AIR 1977 All 103) of our Court has held that even where a suit was, in ignorance of this provision not transferred, even though recording of evidence had not begun before the relevant date, the decree will not be a nullity. In such a case the suit which should have been tried as a Small Cause was tried as a long cause; there is no defect of jurisdiction. 20. More important is the correct view of S. 16 of the Provincial Small Cause Courts Act when it says "save as expressly provided by this Act or by any other enactment for the time being in force. " THE prohibition of S. 16 is subject to a contrary or a different provision of any other enactment for the time being in force. 21. Order 46. Rs. 6 and 7 C. P. C. are material and relevant. THEy provide - "6. Power to refer to High Court questions as to jurisdiction in Small Causes. (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit. (2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit. 7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in Small Causes - (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reason for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous. (2) On receiving the record and statement the High Court may make such order in the case as it thinks fit. (3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this Rule, the High Court may make such order as in the circumstance appears to it to be just and proper. (4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this Rule. " 22. Rule 6 applies where doubt arises while the suit is pending in the Trial Court. In that event on a reference the High Court decides whether the suit is cognizable by the Court of Small Causes or the Regular Courts, and the suit is disposed of by the correct Court accordingly. 23. Rule 7, however, applies when the matter comes to the notice of the the District Court that a decision by a Court subordinate to it as to jurisdiction of a Court of Small Causes vis-a-vis regular courts has been erroneously decided. THE District Court is then to refer the matter to the High Court. In this category of references the High Court is not confined to deciding as to the competence of the Trial Court to take cognizance. It is authorised to make such order in the case as it thinks fit. THE High Court is further authorised to make such order as in the circumstance appears to it to be just and proper with respect to proceedings subsequent in the decree. 24. One thing is clear. Unlike R. 6, the High Court is not, while dealing with a reference under R. 7, bound to direct the return of the plaint in case it comes to the conclusion that the suit had been tried by the wrong Court. In spite of such a finding the High Court can pass an appropriate order as the circumstances may justify. 25. Order 46, Rr. 6 and 7, C. P. C. thus lay down a special procedure as to resolution of a doubt or dispute in respect of jurisdiction of Small Cause Court versus regular Courts while a suit is pending trial as well as after its decision. This is irrespective of the position whether objection as to jurisdiction was or was not taken in the trial Court. Even in a case where it is not taken in the Trial Court the District Court can make a reference if it feels that the Trial Court's decision on the question of jurisdiction was erroneous. If the parties apply to the District Court, the District Court is bound under R. 7 to make a reference, of course if it comes to the conclusion that the Trial Court's decision on the question of jurisdiction was erroneous. 26. It is evident that Rr. 6 and 7 of O. 46 C. P. C. are provisions providing for the consequence of a suit cognizable by a Small Cause Court being tried by another Court or vice versa. It is hence a provision relevant to S. 16 of the Provincial Small Cause Courts Act. It does contemplate a situation where a suit cognizable by a Court of Small Causes has been tried by the Regular Courts erroneously. It then makes a provision as to how an objection as to jurisdiction in such a situation is to be dealt with. It is, in our opinion, a provision within meaning of the phrase "save as expressly provided by any other enactment for the time being in force. " Occurring in S. 16 of the Provincial Small Cause Courts Act. 27. THE question then is what is its effect. S. 16 says that suits cognizable by a Court of Small Causes shall not be tried by any other Court. Prima facie the dictum laid down by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 is attracted. THEre it was held : - "it is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties". THEir Lordships noted that S. 21 C. P. C. and S. 11 of the Suits Valuation Act lay down principles with reference to the territorial and pecuniary jurisdiction, S. 11 of the Suits Valuation Act provided that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. 28. Similarly, S. 21 C. P. C. enacted that no objection to the place of suing shall be allowed by any appellate or revisional Court unless there has been a consequent failure of justice. THEir Lordships of the Supreme Court held that both these provisions were based on the same principle, namely, that when a case had been tried by a Court on the merits and Judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice; and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court unless there has been a prejudice on the merits. 29. THEir Lordships further held that these provisions (S. 21 C. P. C. as well as S. 11, Suits Valuation Act) are self-contained provisions, complete in themselves, and no objection to jurisdiction (territorial or pecuniary) can be raised otherwise than in accordance with them. 30. In that case by reason of under-valuation the appeal was decided by the District Court. On correct valuation the appeal would have lain to the High Court. Nonetheless the Supreme Court held that the decree of the District Court could not, in view of S. 11 of the Suits Valuation Act, be treated as a nullity. 31. THE general rule that a decree without jurisdiction is a nullity is subject to such statutory provisions. THE statutory provisions, like S. 21 C. P. C. and S. 11; Suits Valuation Act, which provide for the made of determination of objections relating to jurisdiction, prevent a decree passed by the wrong Court from being treated as a nullity. That is the effect of the Supreme Court decision in Kiran Singh's case (AIR 1954 SC 340 ). 32. It is undeniable that Rr. 6 and 7 of O. 46, C. P. C. similarly lay down a method and procedure for dealing with objections relating to jurisdiction between the courts of Small Causes and Regular Courts. THEy are provisions to the contrary within meaning of Section 16 of the Provincial Small Cause Courts, Act. THEir effect is that a decree passed either by the Small Cause Court or by the Regular Civil Court, even though the suit in its nature be of small causes or otherwise will not be treated as a nullity and so inexecutable. 33. In the present case none of the parties took the objection that the learned Munsif had no jurisdiction to continue with the trial of the suit after 23rd September, 1969, because of the State Government's notification of that date. THE Trial Court itself was, it appears, not aware of it. Apart from the question whether the Munsif could of his own transfer the suit to the Court of Small Causes or return the plaint for presentation to the proper Court, the fact that the learned Munsif proceeded to try the suit and decide it means that he by implication decided that he had jurisdiction to try and decide the suit. Since no objection to the jurisdiction of the learned Munsif was taken by the defendant by invoking the provisions of Rr. 6 and 7 of O. 48 C. P. C. the decree continued to remain a valid decree. It could not be treated as a nullity. It was executable. 34. THE decision in Khairullah's case (AIR 1973 All 340) (supra) does not lay down the correct law. In that case objection to the Trial Courts' jurisdiction was taken before the District Court in appeal. THE District Court, however, did not refer the matter to the High Court under R. 6 or 7 of O. 46, C. P. C. but decided it itself, and on that basis held that the Trial Court had no jurisdiction. It set aside the decree and directed the plaint to be returned for presentation to the proper Court. This Order was upheld by this Court in a miscellaneous appeal on the finding that the Trial Court had no jurisdiction because during the pendency of the suit the jurisdiction was transferred to the Small Cause Court, So the decree passed by the Regular Court was a nullity, on the other hand, Hon. Gopi Nath, J. reached a correct conclusion in Radhey Shiam's case (1979 All CJ 141 ). 35. In the result the appeal succeeds and is allowed the decrees of the Courts below are set aside. THE matter is sent back to the Trial' Court for execution of the decree in accordance with law. THE appellant will be entitled to costs in all Courts. Appeal allowed. .