IMAM BUX Vs. CUTTACK MUNICIALITY

JUDGEMENT

(1.) THESE two applications under Section 25 of the Small Cause Courts Act were filed by the Defendants and were referred by two learned Single Judges of this Court to a Division Bench. Accordingly, both the civil revisions were heard together and are governed by this common judgment.

(2.) THE question of law is common to both the applications and one argument Was addressed to us. I will deal with the question of law in the first application and refer to the fact of each application separately.

(3.) THE defence of the Defendant -Petitioner inter alia was that the original Holding No. 1169 with an area of 060 was renumbered as Holding No. 579 in Ward No. XV. The Defendant by his purchase only purchased 013 out of the total area of 060. The same day Khatun Bibi, the original holder also executed a kabala in favour of her son, Ahmed Hossain as evidence by Ext. D. The area covered by that deed was 021. The balance of the total area of 060, however, was sold to one Abdul Gani. The area of 013 purchased by the Defendant had one pucca and one kutcha room, whereas, the area purchased by Ahmed Hossain had one pucca room, one kutch a room, verandha, well, privy etc.... Accordingly, the Defendant averred that he was liable, if at all, for the payment of the 1/3rd amount as claimed by the Plaintiff -Municipality. This was the only plea taken in the written statement. However, at the time of trial, certain interesting questions of law were raised and two grounds were taken by the Defendant, namely, (i) that the plaint not being amended in view of p.w. 1's evidence and the Defendant having initially not being in a position to take up proper and full defence, the Plaintiff's claim cannot be substantiated; and (ii) whether in the facts and circumstances of the case, the plea in defence based on non -compliance of the provisions of Section 152 of the Orissa Municipal Act, 1950 (Orissa Act XXIII of 1950) can be agitated at all in this suit in view of this provisions of Section 156 of the said Act. The trial Court was of opinion that Section 156 is a complete bar to the civil court going into these questions. As regards the first point, the trial judge held that the amendment of the plaint was rather beneficial to him. Accordingly, he decreed the suit for Rs. 32/ - only. It is against this decision that the Petitioner had filed the present Civil Revision.