MADHAVPRASAD KALKAPRASAD NIGAM Vs. SGCHANDAVARKAR

JUDGEMENT

(1.) This appeal raises a very short point of limitation. On May 4, 1945, an order was passed by the Small Cause Court in proceedings instituted by the defendant against A.A. Patil and this was an order for ejectment against Patil. Time was given to Patil to vacate by May 14, 1945, and a warrant of possession was issued on May 18, 1945, and when the defendant attempted to execute the warrant of possession, he was obstructed by the plaintiff. On May 22, 1945, the defendant took out an obstructionists notice, and on December 10, 1945, the notice was made absolute in favour of the defendant. From that order the plaintiff came to this Court in revision, and this Court dismissed the revisional application on February 17, 1947. The plaintiff then filed this suit on March 29, 1947, for a declaration that he was the tenant of the defendant and that as such tenant he was entitled to remain in possession of the shop. He also sought for a declaration that the defendant was not entitled to execute the warrant of possession which he had obtained from the Small Cause Court. Mr. Justice Tendolkar, before whom the suit came, tried the preliminary issue with regard to limitation, and as he came to the conclusion that the plaintiff's suit was barred, he dismissed the plaintiff's suit. The plaintiff has come to us in appeal from that decision.

(2.) The view that the learned Judge took was that the order passed by the Small Cause Court on December 10, 1945, was an order under Order XXI, Rule 103, Civil Procedure Code, and the suit was barred under Art. 11A of the Indian Limitation Act, because it was not filed within a year of the passing of that order. Now, with very great respect to the learned Judge, the whole of his judgment proceeds on the assumption that the proceedings instituted by the defendant in the Small Cause Court were a suit and the order that he obtained on May 4, 1945, was a decree. As we shall presently point out, this assumption, which underlies the judgment, is fallacious and, therefore the conclusion to which the learned Judge arrived at is not correct. The Small Cause Court has no jurisdiction to try suits affecting immovable property, but under Chapter VII of the Presidency Small Cause Courts Act, the Small Cause Court has been given a special jurisdiction to pass orders for ejectment. Under Section 41 when a tenancy has been terminated and when the rent does not exceed Rs. 2,000, a landlord may obtain a summons against his tenant to show cause why possession should not be handed over to him, and under Section 43 the Small Cause Court may make an order in favour of the landlord ordering possession against his tenant. Under Section 48 the Code of Civil Procedure is made applicable to all proceedings under Chapter VII, and under Section 49 it is expressly enacted that the recovery of the possession of any immovable property under Chapter VII should be no bar to the institution of the suit in the High Court for trying the title thereto. Looking to the scheme of the Small Cause Courts Act and of Chapter VII it is clear that the proceedings taken by the defendant in order to eject his tenant were not a suit and the order that he obtained from the Small Cause Court for ejectment was not a decree.

(3.) Mr. Laud has attempted to argue that as the order of the Small Cause Court was a final adjudication with regard to the party's rights, that adjudication must be looked upon as a decree. We are unable to accept that view. If one turns to the definition of a decree under the Civil Procedure Code, Section 2(2), decree is defined as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Therefore, a party's rights must be determined not in any proceedings but in a suit, before the result of the suit or the determination of the rights can become a decree. Mr. Laud relies upon various statutory provisions where a Court is enabled to pass a decree in certain proceedings. But those are, what one might call, statutory suits and statutory decrees and there is no provision in the Small Cause Courts Act itself which makes the order of ejectment under Section 43 a decree. It is perfectly clear, if one looks to the Civil Procedure Code, that the order passed by the Small Cause Court is not a decree. That is the view taken of the ejectment order by the Madras High Court in Hyder Ali V/s. Amirudin [1929] A.I.R. Mad. 69. That is also the view of our High Court as given expression to in three decisions : Ramkrishna V/s. Haji Dawood [1907] I.L.R. 31 Bom. 259 Framroz Dosabhai v. Dalsukhbhai Fulchand (1920) I.L.R. 45 Bom. 972 and Bai Meherbai V/s. Pherozshaw Sorabji (1927) I.L.R. 51 Bom. 885 : S.C. 29 Bom. L.R.1220. In Ramkrishna V/s. Haji Dawood the divisional bench consisting of Sir Lawrence Jenkins, Chief Justice, and Mr. Justice Beaman, took the view that the proceedings in the Small Cause Court did not result in a decree, and in Framroz Dosabhai V/s. Dalsukhbhai Fulchand and Bai Meherbai V/s. Pherozshaw Sorabji, the divisional benches also of this Court took the view that the proceedings under Chapter VII were not suits. If, therefore, the order of ejectment is not a decree, then the question is which, is the article of the Indian Limitation Act which is applicable. The learned Judge took the view that the suit was barred under Art. 11A.