DUNI CHAND Vs. MUNSHI AMAR NATH
HIGH COURT OF HIMACHAL PRADESH
Munshi Amar Nath
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(1.) THIS is a plaintiff's application in revision under Section 25, Provincial Small Cause Courts Act, 1887, against the judgment and decree of the learned Small Cause Court Judge Nahan dated 21 2 1952, dismissing his suit for. recovery of Rs. 32/11/ . This amount consisted of Rs. 24/1/ , alleged to be due as price of ghee which the defendant is said to have purchased from the plaintiff on 29 Mangsar 2005, and Rs. 8/10/ as interest thereon at 12 per cent, per annum. No written statement was filed but the defendant's counsel stated that the plaintiff's claim was not admitted. The trial Court thereupon put the plaintiff to the proof of his case. The plaintiff came into the witness box and he produced extracts from his books of account, but the suit was dismissed "in the absence of any proof."
(2.) THERE is a preliminary objection raised by the learned counsel for the defendant respondent, namely, that Section 25, Provincial Small Cause Courts Act, is not applicable and therefore the present revision could only lie under para. 35 of the Himachal Pradesh (Courts) Order, 1948. He further argued that if the present revision be under sub para. (1) (b) of para. 35, the revision is not maintainable because the condition contained in the second proviso as to the value of suit being 1000/ rupees or upwards was not satisfied, and that if sub para. (1) (a) applied the revision was not competent because no question of jurisdiction was involved.
In support of the contention that Section 25, Provincial Small Cause Courts Act, was not applicable, the learned counsel for the defendant respondent referred to the provisions of Section 3 (c) of that Act, which lays down that nothing in the Act shall be considered to affect any local law or any special law other than the Code of Civil Procedure. He further argued that the Himachal Pradesh (Courts) Order, 1948, was one such special law, and that therefore the relevant provision for a revision even in the case of a revision from the judgment and decree of a Small Cause Court would be para. 35 of the said Order and not Section 25 of the said Act. Before proceeding further, it may be stated here that the provisions of the Provincial Small Cause Courts Act, 1887, have been applied in Himachal Pradesh under the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25 12 1948, and again under the Merged States (Laws) Act, 1949, which came into force on 28 12 1949.
(3.) NOW , there is really no conflict between the provisions of Section 25 of the Act and para. .35 of the Order in question. Except for the special provision contained in sub para. 1 (b) of para. 35 of the Order (authorising the Judicial Commissioner to make such order as he thinks fit where further consideration on an important question of law or custom was involved), the provisions of sub para, (1) (a) of that paragraph correspond to those of Section 115, Civil P. C. It is well established that Section 25 of the Act is a provision much wider in its scope than Section 115 of the Code, for whereas the latter justifies interference only in cases of failure of exercise of jurisdiction which vested or exercise of jurisdiction which did not vest or of material irregularity in exercise of the same, the former goes beyond that and permits the High Court to interfere with the decision of a Court of Small Causes where the decision was not in accordance with law. That being so, it cannot be said, within the intendment of Section 3 (c) of the Act, that Section 25 of the Act affected the special law contained in para. 35 of the said Order. If any of the grounds mentioned in para. 35 of the Order be present that alone might be sufficient to justify an interference by this Court in exercise of its revisional jurisdiction under that paragraph. If, however, none of those grounds exists but the High Court is satisfied that the decree or order in question passed by a Court of Small Causes was not according to law, there would still be room for interference under Section 25 of the Act. Manifestly therefore since Section 25 of the Act affords ground for interference within an ambit wider than that provided by Para. 35 of the said Order it cannot be said that the former affected the special law embodied in the latter. I therefore hold that the present revision is competent under Section 25, Provincial Small Cause Courts Act, 1887.;
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