Report No. 14
36. Criticism of concurrent jurisdiction (Abolition recommended).-
Commenting on the working of these provisions, the Civil Justice Committee found that in a great majority of cases the defendant's purpose in making such applications for transfer was to cause delay. Although only a very small number of cases was actually found to have been transferred under section 39 to the High Court, the Committee did not recommend the repeal of the said section, but contented itself with suggesting a strict interpretation of the section. We have not been able to obtain the exact figures of cases of this type filed in the High Court at the option of the plaintiff or transferred to the High Court on the application of the defendant.
Even as far back as 1925 the Civil Justice Committee found that the number of such cases could not be very large; nor have we been able to get any information to the contrary. But, whatever be the figures, we are unable to see any justification for the continuance of this system of giving concurrent jurisdiction to the High Court or the City Civil Court in petty cases of small value. In Bombay the High Court's concurrent jurisdiction in this type of cases has been abolished and no complaint on that score was made before us. We recommend a similar change elsewhere.
37. New Trial Procedure (Criticisms of present procedure).-
There is no right to revision against a judgment of the Presidency Small Cause Court on the lines of section 25 of the Provincial Small Cause Courts Act. However, section 38 of the Presidency Small Cause Court Act confers upon a party the right to apply to the court itself for a new trial in all contested suits within eight days from the date of the decree or order in the suit. The section empowers the court on such application either to order a new trial or to alter, set aside or reverse a decree or order upon such terms as it thinks reasonable. At one time it was thought that the section was intended to confer upon the small cause court the jurisdiction of a court of appeal on fact as well as law; but it is now settled that section 38 was not intended to confer a general right of appeal.
The powers under it are revisional in character though not limited to the particular matters mentioned in section 115 of the Civil Procedure Code. Applications under this section are heard by what is called the "full court" which in Calcutta and Madras includes the Chief judge and one or two other judges including the trial judge whereas in Bombay it is constituted by the Chief judge and at least two other judges but excluding the trial judge.1 One of the criticisms of the full trial procedure is directed against the inclusion of the trial judge while constituting the full court.
Before the Civil Justice Committee the practice of including the trial judge was sought to be defended on the ground that a small cause court is not a court of record, the judge's notes are seldom full and exhaustive and therefore his presence on the full bench is "a check against unwarranted statements as to the happenings in the court below. In his absence there will always be a tendency amongst the pleaders to fill up gaps in evidence as judge's notes are not full and also to give a different colour as to the manner in which evidence was given".
The Committee thought that the evils of this practice were largely exaggerated and they were not convinced that what was done in Bombay could not be tried in Calcutta or in Madras. "Any court exercising appellate power has itself to blame if it relief on inaccurate statements as to what happened in the court below. The trial court may well be expected to take a reasonable note of evidence or of arguments in a really contested matter. As the members of the bench are familiar with the trial work, doing it every day themselves, we think that these objections should not count for much.
The present arrangements in Calcutta and Madras should be made to conform to the Bombay practice.2" This criticism was echoed by some practitioners in the small causes court in Calcutta on the ground that the trial judge would be inclined to support his own decision. We are inclined to agree with the views of the Rankin Committee on the point.
1. We were informed by the Chief Judge, Presidency Small Cause Court Bombay, that even the Chief judge does not sit in the full court if he has been the trial judge.
2. Report, pp. 296 and 297, para. 5.
38. Objections to the right.-
But in our opinion, there is another and a more fundamental objection to the new trial procedure. While there is no corresponding provision in the Provincial Small Cause Court Act, the right to apply for a new trial under section 38 of the Presidency Act subsists simultaneously with the right to invoke the High Court's revisional jurisdiction under section 115 of the Code of Civil Procedure.
39. Abolition recommended.-
Therefore, inasmuch as a decision of the full court under section 38 is revisable by the High Court under section 115 of the Civil Procedure Code, it merely permits an intermediate proceeding which might unnecessarily prolong the proceedings in the trial court. We think that the procedure should be unified by abolition of the new trial procedure in the presidency courts and by providing a right of revision to the High Courts analogous to that under section 25 of the Provincial Small Cause Courts Act. The proposal to enlarge the revisional jurisdiction on the analogy of section 25 has received the support of the West Bengal Judicial Reforms Committee:-
"We are unanimously of opinion that a section analogous to section 25 of the Provincial Small Cause Court Act should be included in the Presidency Small Cause Court Act. At present decrees or orders of the Presidency Small Cause Court can only be challenged in the High Court by way of revision under section 115 of the Code of Civil Procedure. That section gives the High Court a right to interfere only where questions of jurisdiction are involved or where illegality or irregularity in the exercise of such jurisdiction is established.
The right of the High Court to interfere is, therefore, very strictly limited, whereas under section 25 of the Provincial Small Cause Court Act the High Court may interfere by way of revision not only in cases covered by section 115 of the Code of Civil Procedure but also where a decree or order of a Provincial Small Cause Court appears contrary to law. Judges of the Presidency Small Cause Court are now recruited from the Provincial Judicial Service as they are in the case of Provincial Small Cause Courts and there appears at the present time to be no reason whatsoever why decrees or orders from both classes of Small Cause Courts should not be subject to the same form of revision.
The form of revision provided in section 25 of the Provincial Small Cause Court Act is wider and more satisfactory and, therefore, we recommend that such form should be substituted for revision under section 115 of the Code of Civil Procedure which is now applicable to decrees and orders of the Presidency Small Cause Court. This can be done by the inclusion of a section in the Presidency Small Cause Court Act similar in terms to that of section 25 of the Provincial Small Cause Court Act."
"We are further unanimously of opinion that section 38 of the Presidency Small Cause Court Act no longer serves any useful purpose and should be repealed. The procedure o.-questioning a decree or order of a Small Cause Court Judge before a Full Bench of the Small Cause Court rarely ends in an authoritative or final decision and unnecessarily prolongs litigation. A decision by the High Court by way of revision without the intervention of a Full Bench is preferable and speedier and would result in a decision carrying greater weight and would have the further advantage of being a final decision. Small Cause Court procedure is applicable only to disputes of small valuation and is intended to be speedy. Abolition of the Full Bench procedure would greatly assist the attainment of this latter objects."1
1. Report, p. 27.
We are in complete agreement with the West Bengal Committee's view that a section analogous to section 25 of the Provincial Small Cause Courts Act should be incorporated into the Presidency Act and section 38 repealed, although this might mean some increase in the work of the High Courts.
40. Extension of pecuniary jurisdiction (Not recommended).-
As we have pointed out, the maximum small cause powers of the presidency courts are upto Rs. 2000. In Bombay, however., by a recent amendment the pecuniary jurisdiction of the presidency small causes court has been raised to Rs. 3000. In addition to the ordinary civil suits cognizable by courts of small causes, courts in all the three presidency towns have been given jurisdiction to try suits arising under certain special Acts, such as, the Bombay Rent, Hotels and Lodging House Rates Control Act of 1947, in Bombay, the West Bengal Premises Rent Control Act of 1950, the Thika Tenancy Act of 1949 in Calcutta and municipal assessment cases in Madras.
In Bombay, the Presidency Small Cause Court is also the appellate authority under the Payment of Wages Act. Besides, the Chief judge is the special judge in certain municipal matters. The volume of work in these courts has increased considerably in recent years and the Chief judges of the presidency small cause courts in both Calcutta and Bombay were against any further extension of the Court's jurisdiction. We would, therefore, leave it to the High Courts concerned to determine whether any further increase in the pecuniary jurisdiction is desirable.
41. Extension of jurisdiction (Amendment of section 19).-
We have not received suggestions from any responsible bodies or persons for the enlargement of the presidency courts' powers by amending section 19 so as to bring a wider class of cases within the court's jurisdiction. The items in section 19 correspond to those in schedule II of the Provincial Small Cause Courts Act. Except a slight alteration of clause (s) of section 19 relating to suits under Order XXI, rule 6 of the Civil Procedure Code and suits to set aside attachment of immovable property, the Civil Justice Committee did not make any other suggestions for amending this section. We would, however, recommend an amendment of section 19 on the lines which we have suggested in reference to schedule II to the Provincial Small Cause Courts Act.
42. Unification of law in the presidency towns and in the mofussil.
Suggestions have been made to us by some of the witnesses and also in replies to our Questionnaire that instead of having two separate enactments for the presidency towns and the mofussil small causes courts, there should be a single unified law applicable to both the areas. The main object of the courts of small causes is to render cheap and speedy justice in claims of small value. From this point of view both the Acts are identical in principle, the differences being only as to certain procedural details.
43. Additional provisions in the Presidency Act.-
There are certain additional provisions in the Presidency Act relating to what is known as new trial procedure by a full court; procedure for recovery of immovable property and distress warrants for speedy recovery of arrears of rent of houses or premises is also laid down. We have already suggested a partial unification of the procedure by recommending the abolition of the procedure relating to a new trial and the conferment of a right of revision analogous to that given by the Provincial Small Cause Courts Act.
44. Right to recover immovable property (Extension of procedure to selected areas recommended).-
Chapter VII of the Presidency Act deals with recovery of possession of immovable property. These provisions are intended to enable a person to obtain quick delivery of possession of premises which are in the possession of a tenant or another person by permission and where such tenancy or permission has determined or has been withdrawn, under section 41 of the Act, a person entitled to the possession of such property can make an application to the small causes court for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver the property.
On the default of the occupant to comply with the summons, the applicant is entitled to an order addressed to a bailiff of the court directing him to give possession of the property, if the court is satisfied that the applicant is entitled to apply under section 41. Under section 46, when the applicant is not at the time of applying for any such order entitled to possession of such property, the application itself is deemed to be an act of trespass committed by the applicant against the occupant even though possession was not taken thereunder.
Section 47 provides that if the occupant binds himself to institute a suit in the High Court against the applicant for compensation, for trespass and to pay all costs for such suit in case he does not prosecute the same or in case the judgment is given in favour of the applicant the proceedings are stayed by the small cause court until such suit is disposed of. In short, therefore, the Act provides a quick and cheap remedy for recovery of possession of small tenements in large towns without compelling the applicant to resort to the long and tortuous procedure of a civil suit and execution proceedings and throws the burden of filing the suit upon the person who is alleged to be in unauthorised occupation of the same.
The utility of such provisions in large thickly populated industrial and commercial cities is too obvious to need any emphasis. The only question is whether similar provisions cannot be made for the mofussil also. In recent years other towns like Delhi, Ahmedabad. Kanpur etc., have grown phenomenally in population and the problems of housing and need for small tenements of moderate rent is no less acute in these places than in the presidency towns. We accordingly feel that such a procedure may well be extended with advantage at least to big towns in the mofussil. We would suggest that a provision may be added in the Provincial Small Cause Courts Act empowering Government to extend the procedure under Chapter VII of the Presidency Act to such selected local areas outside the presidency towns as it may think fit.
45. Extension of distress warrant procedure.-
Our conclusions regarding the extension of the procedure of distress warrants in Chapter VIII of the Presidency Act are also similar. This chapter which contains sections 50 to 67 of the Act lays down the procedure for recovery of arrears of rent of any house or premises without instituting a suit in that behalf. Section 53 enables a person claiming to be entitled to such arrears of rent to apply to a judge of the small cause court for a distress warrant under section 56 for the purpose of seizure of any property liable to be seized. We are doubtful of the utility and wisdom of the extension of such procedure to rural areas but we think that the provisions could be extended with advantage to large urban and industrial areas in the manner indicated above.
46. Combination of the two acts recommended.-
Having regard to what has been stated above, we take the view that it would be advantageous to combine the two Acts, which in substance embody similar and in a large number of cases identical provisions, into one statute. The operation of particular provisions suitable to be applied only to presidency towns may be confined in their operation to them by specific provisions to that effect in the particular sections.
47. Summary of recommendations.-
We may summarise our recommendations on courts of small causes as follows:-
(1) The small cause jurisdiction of subordinate or senior judges should be increased to Rs. 2,000 and of junior judges or munsifs to Rs. 500.
(2) Taking into account local conditions, the High Courts should increase the small cause powers of different judicial officers up to this limit.
(3) Article 4 of the Provincial Small Cause Courts Act should be amended on the lines of the Bombay amendments of 1930 and 1932.
(4) Article 8 of the Provincial Small Cause Courts Act should be deleted.
(5) Articles 13 and 38 of the said Act should be amended so as to permit such suits to be tried by a court of small causes when the right is based on a contract reduced to writing.
(6) Article 18 of the Provincial Small Cause Courts Act should be amended so as to substitute the words "to enforce a trust" for the words "relating to a trust."
(7) The scope of Articles 20 and 21 should be confined to immovable property.
(8) Article 25 should be deleted.
(9) Article 26 should be repealed.
(10) Article 31 should be amended by adding the words "but not including a suit for mesne profits".
(11) The concurrent jurisdiction of the High Court or the city civil court in matters triable by the presidency small causes courts should be abolished.
(12) The provisions relating to a new trial contained in section 38 of the Presidency Small Cause Court Act should be repealed.
(13) A right of revision, analogous to that conferred by section 25 of the Provincial Small Cause Court Act should be conferred against the decisions of Presidency Small Causes Court.
(14) Section 19 of the Presidency Small Cause Courts Act should be amended on the lines suggested by us for the amendment of Schedule II to the Provincial Small Cause Courts Act.
(15) The provisions relating to the recovery of possession of immovable property contained in Chapter VII of the Presidency Small Cause Courts Act should be added to the Provincial Small Cause Courts Act and the State Governments empowered to apply the provisions of the chapter to suitable areas within the State.
(16) Similar steps should be taken with regard to the procedure for distress contained in Chapter VIII of the Presidency Act.
(17) It would be advantageous to combine the Provincial and the Presidency Small Cause Act into one enactment.
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