DIPEN MUKHERJEE Vs. SANDHYARANI CHATTERJEE

JUDGEMENT

(1.) THIS is an application under section. 24 (5) of the Code of Civil Procedure for transfer of a suit being Title Suit No. 703 of 1977 now pending in the City Civil Court at Calcutta from that court to the Court of Small causes, Calcutta. Such transfer has been sought for on the ground that in view of the provisions of section 5 (4) read with entry 17 of the First Schedule of the City Civil Court Act, 1953, the City civil Court has no jurisdiction to entertain and try the suit. We are told that on the point at issue there is divergence of views amongst the Judges of the City civil Court at Calcutta and, therefore, it is necessary to resolve the dispute. Title Suit No. 703 of 1977 is a suit for recovery of possession of the suit premises, being Suit No. 3, second floor of premises No. 112, College Street, Calcutta, from a licensee - the license in whose favour is alleged to have been revoked. This suit is being congested by the defendants by filing a written statement. One amongst several defences taken, is to the effect that the City Civil court has no jurisdiction to entertain such a suit in view of the provisions of city Civil Court Act referred to hereinbefore.

(2.) MATERIAL part of section 5 of the City Civil Court Act, 1953, provides as follows :-"5. Jurisdiction - (1) The local limits of the jurisdiction of the City civil Court shall be in the City of Calcutta (4) The City Civil court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule," the relevant entry in the First Schedule relied on in support of the objection is entry No. 17 which reads as follows :. "suits and proceedings triable by the small Cause Court,"

(3.) THE effect of section 5 (4) read with entry 17 of the First Schedule as aforesaid is that if a particular suit or a proceeding can be entertained and tried by the Small Cause Court, then that court alone in given the jurisdiction to do so excluding the jurisdiction of the City civil Court. The real test for exclusion under section 5 (4), therefor, is to determine whether the particular suit or proceeding is capable of being tried by the Small Cause Court.