DWARKA SHAW Vs. RAM CHABIKA MISHRA

JUDGEMENT

(1.) A short point that arises for determination in this Rule is, whether the Full Bench of the Presidency Small Causes Court has jurisdiction under Section 38 of the Presidency Small Cause Courts Act to interfere with an order passed under Section 41 of the said Act.

(2.) The plaintiff-opposite party instituted a proceeding under Section 41 of the Presidency Small Cause Courts Act (hereinafter referred to as "the Act") in the Small Causes Court, Calcutta, praying for an order directing the bailiff of that Court to put the petitioner in possession of the disputed land on the ground that licence granted in favour of the opposite party to possess the said land had been revoked. The opposite party denied that he was a licensee. He asserted that he was a thika tenant. The learned Trial Judge allowed the opposite party's said application. The petitioner, aggrieved against the said order of the Trial Judge, filed an application under Section 38 of the Act before the Full Bench of the Small Causes Court. The Full Bench dismissed the petitioner's said application on a preliminary point that an application under Section 38 did not lie against an order passed under Section 41 of the Act. The petitioner moved this Court against the above order of the Full Bench and obtained the present Rule.

(3.) A proceeding under Chapter VII of the Act is not a suit. Section 41 of the Act is in Chapter VII. A proceeding under that Chapter commences with an application and not with a plaint. The provisions of Section 38 of the Act are attracted in cases of suits and not in other proceedings. Throughout the Act a distinction is drawn between suit and proceeding under Chapter VII of the Act (vide Sections 14, 69, 71, 72 73, 74 and 76). In all these sections, the suit, an application or a proceeding are used side by side and these expressions cannot be said to be co-extensive. The explanation to Section 14 of the Act presumes that an application under Section 41 is not a suit but it is deemed to be such for the purpose of that section. In Nalinakhya v. Shyam Sundar, the Supreme Court observed that "although under the rules framed under the Act this application under Section 41 is initiated by a plaint there is no dispute that the proceeding is not a suit and the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession.