When civil Judge should try small cause suit as regular suit?
The submission made on behalf of the petitioner about
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3470 of 2003
Shri Suresh S/o Manikchand Patni,
Versus
Kachrulal s/o Shankarlal Sarda,
CORAM : Z.A. HAQ, J
DATE : JULY 7, 2014.
the procedure adopted by the learned Trial Judge while deciding
the civil suit as Regular Civil Suit also cannot be considered at this
stage. The petitioner had not raised any objection before the
learned Trial Judge and no ground is raised before the District
Court in the appeal. In this writ petition, the petitioner has stated
that Court of Small Causes are functioning, and except for this
bare statement on the record, no material is placed on record to
substantiate the challenge as sought to be made. The respondent
nos. 1(a) to 1(g) have specifically stated in their additional
affidavit that the Court of Civil Judge (Senior Division) at Washim
was vested with the powers of the Small Causes Court and
consequently he could have tried the civil suit as small cause civil
suit valued up to Rs. 12,000/- for the purposes of pecuniary
jurisdiction. It is submitted that as the valuation of the suit is
Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge
(Senior Division) has rightly tried it as the Regular Civil Suit. Shri
C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to
1(g) has relied on the Division Bench Judgment of this Court given
in the case of Radheshyam Zumbarlal Chandak Vs. District Judge,
Amravati and another (supra). In paragraph Nos. 35 and 36, it is
recorded as follows:-
“The question is about a Civil Judge
exercising jurisdiction of a Court of Small
Causes for trial of such suits cognizable by
such Court, invested in it by the High Court
in exercise of its powers under Section 28(1)
of the Civil Courts Act. Section 28(1)
authorizes the High Court to invest any Civil
Judge with the jurisdiction of a Court of Small
Causes not exceeding rupees twelve
thousand in case of a Civil Judge, Senior
Division, and in case of a Civil Judge, Junior
Division, rupees six thousand. We have
already held that a Civil Judge invested with
the jurisdiction of a Court of Small Causes
under Section 28(1) of the Civil Courts Act
shall have jurisdiction to entertain, try and
decide the civil Suits contemplated by
section 26(1) of the Small Cause Courts Act
to the extent of the pecuniary limits
prescribed under section 28(1) of the Civil
Courts Act. Section 32 of the Small Cause
Courts Act states that so much of Chapters
III, VI and IV-A1, as relate to the practice and
procedure of the Courts of Small Causes,
shall apply to the courts invested by or under
any enactment for the time being in force
with the jurisdiction of a Court of Small
Causes so far as regards the exercise of that
jurisdiction by those courts. Similarly, the
provisions of section 7, read with the
provisions of Order 50 of the Code of Civil
Procedure, exclude the application of certain
provisions of the Code of Civil Procedure to a
Court invested with the jurisdiction of a Court
of Small Causes. In view of this, the
procedure to be followed for deciding such
suits by a Civil Judge would be summary in
nature and not as a regular civil suit to be
tried in accordance with the provisions of the
Code of Civil Procedure”.
36.”If the value of the subject-matter of the
suit covered by section 26(1) of the Small
Cause Courts Act exceeds the pecuniary
limits specified under section 28(1) of the
Civil Courts Act, then a Civil Judge invested
with the jurisdiction of a Court of Small
Causes shall not have jurisdiction to
entertain, try and decide such suit, as a
small cause suit of a summary nature, but it
will have to be decided as a regular suit and
the procedure for deciding such suit will be
governed by the Code of Civil Procedure and
not by the procedure prescribed under the
Small Cause Courts Act. The reason for this
is that the High Court is not competent under
section 28(1) of the Civil Courts Act to invest
any Civil Judge with the jurisdiction of a
Court of Small Causes beyond the pecuniary
limits specified in that section.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.3470 of 2003
Shri Suresh S/o Manikchand Patni,
Versus
Kachrulal s/o Shankarlal Sarda,
CORAM : Z.A. HAQ, J
DATE : JULY 7, 2014.
