Report No. 14
16. Article 8 (Suits for rent).-
This article relates to suit for the recovery of rent, other than house rent, unless the judge of the small cause court has been expressly invested by the State Government with authority to exercise jurisdiction in respect thereto. It will be seen that the article itself empowers the State Government to invest a court of small causes with jurisdiction in this regard. The Civil Justice Committee recommended1 that the State Governments should more freely exercise this power and more rent suits should be disposed of on the small cause side.
A suit for recovery of rent which presupposes a contract stipulating payment of rent is nothing more than a money claim and should, on general principles, be brought within the jurisdiction of the small cause court. It may be noted that in Madras all subordinate judges and district munsifs have been invested with authority to try under the small cause jurisdiction of their courts all suits for recovery of rent. This article may be omitted.
1. Report, p. 99, para. 4.
17. Articles 9 to 12.-
From the very nature of the suits mentioned in these articles, it is abundantly clear that they cannot be omitted.
18. Articles 13 and 38 (Suits for fees and cases).-
These articles relate respectively to suits to enforce payment of allowances or fees called 'malikana' and 'hakk', or of cesses or other dues when the cesses or dues are payable to a person by reason of his interest in immovable property or in a hereditary office or in a shrine or other religious institution and suits relating to maintenance. The Government of India accepted the Civil Justice Committee's recommendation that the article should be so amended as to exclude therefrom suits where the right is based on a contract and reduced to writing.
The proposal also received considerable support from the High Courts and the State Governments. The suits covered by these two articles are generally claims for money and within the limits stated above, the powers of the small cause court can be safely extended in relation to these two articles.
19. Article 14.-
It relates to cases where a land acquisition officer has paid the compensation to a person other than the claimant. A suit of this description would involve a determination of title to immovable property and would naturally be outside the jurisdiction of the court of small causes. This article must remain.
20. Articles 15 to 17.-
The nature of the suits mentioned in these articles is such that they cannot be omitted.
21. Article (Suits relating to trust).-
This article refers to suit relating to a trust including a suit to make good out of the general estate of a deceased trustee the loss occasioned by a breach of trust and a suit by a co-trustee to enforce against the estate of a deceased trustee the claim for contribution. In 1926, the Government of India, accepting the recommendation of the Civil Justice Committee, sought to amend this article by substituting the words "to enforce an express trust" in place of the words "relating to a trust". The corresponding words in the Presidency Small Cause Courts Act [section 19(k)] are also "suits to enforce a trust".
The Committee proposed substitution of those words for the words "relating to a trust". It said: "The words 'relating to a trust' mean literally 'standing in some relation to; having bearing on or concern with; pertaining to; referring to a trust', but they could not have been intended to be construed in this wide sense. These words have given room for a number of decisions of High Courts regarding their interpretation. The corresponding words in the Presidency Small Cause Courts Act are 'suits to enforce a trust'.
Those .words may be substituted for 'relating to a trust' in Article 18, to avoid ambiguity and to confine the article to cases where the terms of a trust form the real subject-matter in dispute. * * * Again, it should be made clear that the article applied only to express trusts. A number of cases could be conceived where some sort of relationship of trustee and cestui que trust exist and it would waste the time of the ordinary courts to make them attend to disputes arising out of such relationship in suits really of a small cause nature. So it is necessary to make the language plain and certain."1
1. 13 MLJ 47.
22. Amendment suggested.-
In other words, even if the claim in the suit was a simple claim for recovery of money, if it had any bearing on or was concerned with or pertained to a trust whether express, implied or resulting, it came under this article. For example, a suit by an ex-trustee against the present trustee for recovery of money paid by the former on account of the trust was held to be a suit relating to a trust and therefore not cognizable by a court of small causes1 However, the Rankin Committee's proposals to confine the article to suit to enforce express trusts are open to a further objection that suits relating to implied or resulting trusts may be as difficult or complicated as suits to enforce express trusts.
It is, therefore, no less desirable to exclude suits to enforce implied or resulting trusts as it is to exclude those to enforce express trusts. The article should, therefore, be amended simply by substituting "to enforce a trust" for the words "relating to a trust" as has been done in Bombay by the Amending Act of 1930.
23. Article 19.-
The nature of the suit mentioned in it makes it unsuitable to be dealt with summarily.
24. Articles 20 and 21.-
In regard to these articles, the Civil Justice Committee recommended that the scope thereof should be confined to immovable property. This proposal did not meet with much opposition in 1926 and has been given effect to in Bombay by Act VI of 1930. Such an amendment may be made in all the States.
25. Articles 22, 23 and 24.-
The suits dealt with by these articles are obviously unsuitable to be disposed of in a summary manner.
26. Article 25 (Suits on foreign judgment).-
This article relates to a suit upon a foreign judgment. The Civil Justice Committee recommended that such a suit should be made cognizable by a court of small causes. "If the suit were brought on the original cause of action it would be a small cause suit and the court would be competent to decide pleas of res judicata relating to the claim; that is to say, if the defendant pleads a foreign judgment in his favour against the plaintiff as res judicata in a suit on the original cause of action in the small cause court, that court has to and is now competent to consider its validity.
It is therefore not apparent why a person who has a foreign judgment in his favour should not institute a suit based on it as plaintiff on the small cause side. * * * A small cause judge who has to decide as many questions of law on the small cause side as he does on the ordinary side might well be trusted to deal with the questions of law which arise for decision in enforcing a judgment of a foreign court. 1"
1. Civil Justice Committee's Report, pp. 100-101, para. 7.
By the proposed amendment of 1926 effect was sought to be given to this recommendation by amending the article in the following manner:
"A suit upon a foreign judgment (as defined in the Code of Civil Procedure) unless the judge of the court of small causes has been expressly invested by the local Government with authority to exercise jurisdiction in such suits."
Several of the High Courts were agreeable to this proposal which seems free from objection. We recommend the omission of this article.
27. Article 26.-
This article excludes suits under section 73, sub-section (2) of the Code of Civil Procedure from the purview of courts of small causes. These are suits to compel a refund of all or any of the assets liable to be rateably distributed but which are paid to a person not entitled to receive the same. Before the enactment of this article, suits under section 73 (old section 295) were cognizable by a court of small causes. Such a suit is virtually a suit for money had and received and there is no reason why it should be excluded from the small cause court's jurisdiction. The Civil Justice Committee recommended the omission of this article and restoration of the law to what it was before the article was enacted. We agree with the recommendation.
28. Articles 27, 28, 29 and 30.-
The suits mentioned in these articles are obviously unsuitable for summary disposal and should, therefore, remain.
29. Article 31 (Suit for mesne profits).-
The Civil Justice Committee recommended that a suit relating to mense profits should be made cognizable by a court of small causes. All High Courts except two were willing to accept the proposal. The only doubt that arose was whether a suit for mesne profits really stood excluded by this article. The suggested amendment was to enlarge the small cause courts' jurisdiction by adding the words "but not including a suit for mesne profits". This amendment has been made in Bombay and may be made elsewhere also.
30. Articles 32, 33 and 34.-
The suits dealt with by these articles cannot obviously be disposed of in a summary manner. The articles must, therefore, remain.
31. Articles 35(ii) and 43A (Compensation or recovery of property).-
These articles were added by the amending Act VI of 1914. The Civil Justice Committee recommended deletion of both these articles. Article 35(ii) relates to a suit for compensation for an act which is or save for the provisions of Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter VII of the said Code. Article 43A covers suits for recovery of property obtained by an act which is or, save for the provisions at Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter XVII of the said Code.
The Committee pointed out that • many trumpery suits such as those for pan leaves cut and carried away by a trespasser or for the conversion of a few measures of paddy were tried on the original side because technically the act charged amounted to an offence under the Indian Penal Code. They were intended to provide that suits against public servants relating to their acts which might technically constitute criminal offences should not be heard by courts of summary jurisdiction although, in form, they may be merely for recovery of damages. The Government of India thought that the Committee's reasons for deletion of these articles were not convincing and the proposal was not accepted.
The effect of such an amendment would be that suits which involved a criminal accusation against the defendant would become cognizable by a small cause court. To allow such suits to be tried under summary procedure without a right of evidence would be unsatisfactory, as it would deprive the defendant of the opportunity to clear his character by an appeal from an adverse decree. It was on considerations such as these that the two articles were added to the schedule at the instance of some of the Provincial Governments. They should, in our opinion, be, left untouched.
32. Articles 36, 37, 38, 39, 40 and 41.-
The suits dealt with by these articles cannot obviously be disposed of summarily. The articles must therefore remain.
33. Article 42 (Suits for contribution).-
This article contemplates a suit by one of the several co-mortgagors of immovable property for contribution in respect of money paid by him for redemption of the mortgaged property. This may be in essence a claim for money but in view of the complex defences that might be set up, it is desirable that such suits should be tried by regular courts.
34. Article 43.-
Suits mentioned in this article are obviously not suitable for summary disposal. The article must, therefore, remain.
35. Presidency small cause courts (Their jurisdiction).-
The presidency small cause courts constituted under Act XV of 1882 consist of a Chief judge and as many other judges as the State Government may appoint and the local limits of their jurisdiction are co-terminus with those of the High Courts in the exercise of their ordinary original civil jurisdiction. These courts have jurisdiction to try all suits of a civil nature when the amount or value thereof does not exceed Rs. 2000 except the Categories of suits specified in section 19 of the Presidency Small Cause Courts Act of 1882. In suits upto Rs. 1000 these courts have exclusive jurisdiction but above. Rs. 1000 they exercise concurrent jurisdiction with the High Court in Calcutta and with the city civil court in Madras.
Under section 21 of the Act, the plaintiff has an option to institute in the High Court a suit the amount or value of the subject-matter whereof exceeds Rs. 1000. Further, under section 39, the defendant has a statutory right to have his case transferred to the High Court, or in Madras to the city civil court, subject to such terms as to security for costs, etc. as the court may direct and, unless in the opinion of the judge, the application has been made solely for the purpose of delay, the defendant shall be entitled to such order of transfer as of right.