MIR HYDER ALI SAHIB Vs. AMIRUDIN SAHIB

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. On the allegation that the first defendant was the plaintiff's tenant, and that the tenancy had been determined by notice to quit, the plaintiff applied to the Madras Court of Small Causes by Petition No, 17 of 1921 under Chapter VII of the Presidency Small Cause Courts Act to direct the defendant to deliver possession of the properties to the plaintiff. The Court passed an order directing the 1 defendant to vacate the premises by the 26 of March, 1921 and ordered that, in default, possession would be delivered through Court on 31 March, 1921. Then the plaintiff took out a warrant for possession (M.P. No. 715 of 1921) and when the bailiff of the Court of Small Causes went to the premises to deliver possession to the plaintiff he was obstructed by defendants 2 and 3 who set up right in themselves and also denied tenancy under the plaintiff. Thereupon the Court dismissed the plaintiff's Petition No. 715 of 1921 on 28 October, 1921. The plaintiff accordingly filed Original Suit No. 217 of 1924 on the file of the City Civil Court, Madras, on 25 April, 1924 against the three defendants to recover possession of the property on the strength of his title and also claimed mesne profits. Defendants 2 and 3 contested the suit raising among other pleas the plea of limitation. Issues 4 and 7 ran as follows: Issue 4.--Is the suit barred under Order 21, Rule 03 of the Civil Procedure Code? Issue 7.--Is the suit barred by limitation?

(2.) The learned City Civil Judge dismissed the suit holding that the suit was barred by limitation, and he did not try the merits of the case. The question that arises for decision in this appeal is whether that decision is correct.

(3.) The line of argument pursued by the learned City Civil Judge may be stated in his own words: The Small Cause Courts Act expressly provided in Section 48, under Chapter VII headed Recovery of possession of immoveable properties, that in all proceedings under that Chapter the Small Cause Courts shall, as far as possible, and, except as hereinafter otherwise provided, follow the procedure prescribed for the Court of the first instance by the Civil Procedure Code. Though in general, therefore, the Civil Procedure Code may not be applicable to the Small Cause Courts unless and until its provisions are reproduced in the Small Cause Courts Act or in the rules made thereunder, an exception is made with reference to Chapter VII of the Small Cause Courts Act. Under that Chapter, then, the Civil Procedure Code is expressly declared as the Act to be followed, and it is a well-known practice of the Small Cause Court that Rules 98 to 103 of Order 21 of the Civil Procedure Code are constantly invoked and actually enforced in the Small Cause Court as often as they are in the City Civil Court.... Therefore, Rules 262 to 267 corresponding to Rules 98 to 103 of Order 21, Civil Procedure Code, are still applicable to the Small Cause Court. The only other contention that was put forward was the age-long argument that an ejectment application made in the Small Cause Court is a different thing from a suit and an order passed therein is a different thing from a decree and, therefore, Art. 11 (a) of the Limitation Act does not apply to such a suit. Though such a proceeding is called an application and the decision made in it is called an order, the said order corresponds and answers more to the description given of a decree in the Civil Procedure Code than to the term order. It is the final adjudication of the litigation pending before the Court. What we are directly concerned with now is not a decree of a Civil Court terminating a suit or a decision of the Small Cause Court similarly terminating a suit but an order subsequently made in execution proceedings in connection with an obstruction raised. The said order whether made by a Court of Original Jurisdiction like the City Civil Court or promulgated by the Small Cause Court is in both cases passed under the Civil P. C. and is the order expressly referred to in Art. 11 (a) of the Limitation Act and it is in respect of such orders that a period of one year is fixed.... There is no reason for drawing hair-splitting distinctions between an order in obstruction proceedings made in the Small Cause Courts and exactly similar order made in the same class of suits in the City Civil Court and not those passed by the Small Cause Court I find that Art. 11 (a) of the Limitation Act applies and that plaintiff's suit for possession which has been brought more than one year from the date of that order is therefore out of time and is consequently liable to be dismissed.