- (1.) D. K. Seth, J. On 1st July, 1989, opposite parties 2 and 3 filed a suit being S. C. C. Suit No. 48 of 1989 for ejectment, arrears of rent and damages against the petitioner in the Small Cause Court, Ghaziabad. In the written statement filed by the petitioner, it was contended that U. P. Act No. 13 of 1972 is not applicable to the suit property since the house was constructed beyond the period of 10 years. The op posite parties filed a replication on 28th July, 1992 incorporating the fact that the plaintiffs had taken a loan of a sum of Rs. 80,000 from the Hindustan Development Finance Corporation, Delhi for the construction of the house on the aforesaid plot securing the said plot with the Corporation. On 28th October, 1992 in the course of examination of witnesses, which continued on 29th October, 1992, when P. W. 1. stated the fact of taking loan of a sum of Rs. 80,000 from the Hindustan Development Finance Corporation, Delhi, the defendant raised objection to this effect that since the said fact was not within the pleading, within the meaning of Order VI, Rule 1 of the Code of Civil Procedure, no evidence could be led on the said fact and the evidence so adduced was inadmissible. By order dated 16th August, 1993, the trial Court while rejecting the objection raised by the defendant held that the replication in part of the pleading and therefore the statement of P. W. 1 with regard to the fact stated above, was admissible. It is against these orders the present writ petition has been filed.
(2.) LEARNED counsel for the petitioner contends that the replication cannot be treated to be part of pleading, inasmuch as the Order VI, Rule 1 does not include the replication as part of the pleading. In case, any other pleading is to be relied on, the same can only be brought by means of amendment and not otherwise. On the other hand, learned counsel for the opposite parties contends that the replication is part of the pleading since the replication has been filed in reply to the statement made in the written statement. He contended further that no objection was taken to the filing of the replication before evidence had started and that on the contrary the defendant had filed Additional Written Statement. Therefore, the objec tion raised by the defendant at the time of hearing cannot be sustained. The suit is governed by the provision contained in the Provincial Small Cause Courts Act, 1887. Therefore, the Civil Procedure Code is applicable only to the extent as provided in Section 17 of the said Act. Section 7 of the Code of Civil Procedure specified the provision of the Code which shall not be applied to the Provincial Small Cause Courts, while Order L of the Code supplant. Section 7 specifying the portion of the First Schedule which does not apply to the Provincial Small Cause Courts. In the facts and circumstances of the case, I am more concerned with Order L of the Code than Section 7, though, however, Order L flows from Section 7, inasmuch as body of the Code does not provide any thing with regard to the solution of the present dispute for which reference is required to be made to the First Schedule of the Code. Order L provides that the provisions enumerated there under, shall not extend to the Small Cause Courts. The provisions relating to the frame of suit, as provided under Order II, Rule 1, has been extended by the provisions relating to the pleading has not been excepted. At the same time, the Provincial Small Cause Courts Act does not provide specifically anything with regard to the pleading. The Civil Procedure Code applies only to the extent as provided in Section 17 of the said Act. The real object of Section 17 is that a suit or proceedings arising out of decision of Small Cause Courts is to be governed by the Provincial Small Cause Courts Act, 1887 and not by the provisions of the Code of Civil Procedure, 1908. [ Vide Kanhaiya v. Gurwant, AIR 1962 All 514 and Brij Behari v. Lalta Prasad, AIR 1934 All. 943], but where there is no specific provision in the Act to cover a particular controversy, than the provisions of the Code of Civil Procedure can be taken resort to help the litigants and also the ends of justice [vide Satyabadi v. Kanhei Pradhan, AIR 1943 Pat 72].
(3.) NOW Section 17 of the Act is to be read with reference to Section 158 of the Code of Civil Procedure and so it should be deemed to relate to the application of Section 7 of the Code or Order L of the same Code in the proceedings of Court's of Small Causes [vide Eipin v. Abdul Ban, AIR 1917 Cal 548 Abdul Hamid v. Shyam, AIR 1935 All. 502 and Yusufakram v. Arfan Ali, AIR 1961 Cal 464]. Therefore, now Section 96 of the Code of Civil Procedure cannot be extended in respect of any decision of the Small Cause Court. If Section 96 is not extended then there cannot be any scope for attracting section 100. Section 24 of the Small Cause Courts Act provides appeal from the order only in respect of Clause (ff) and Clause (h) of sub-section (1) of Section 104 of the Code of Civil Procedure, 1908 but there is no provision in the said Act akin to Section 96 of the Civil Procedure Code. However, the decree of order passed by the Small Cause Court has been made revisable under Section 25 of the said Act, which runs as follows: "25. Revision of decree and orders of Court of Small Causes - The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect there of as it thinks fit. ";