- (1.) THIS First Appeal from Order is directed against an order passed by the Ist Additional District Judge, Varanasi dismissing an application under Order IX Rule 13 C. P. C.
(2.) THE brief facts are these. A suit was filed by the plaintiff for the eviction of the defendant on the allegation that the latter' s tenancy had been determined and after such determination, he was not entitled to remain in occupation of the accommodation in his tenancy. Arrears of rent and damages for illegal use and occupation were also claimed. THE suit was decreed ex parte. THE defendant moved an application under Order IX Rule 13, C. P. C. for setting aside the ex parte decree. A preliminary objection was raised on behalf of the plaintiff that the said application was not maintainable in view of the fact that the suit was one of the nature of Small Causes and, therefore, Section 17 of the Provincial Small Cause Courts Act was applicable and in terms of the proviso to the said section, the defendant who was seeking to set aside the ex parte decree, was bound to deposit in the court the amount due from him under the decree or in pursuance of the judgment, or to give such security for the performance of the decree or compliance with the judgment as the court might, on a previous application made by him in this behalf would have directed. Since admittedly this was not done, therefore, the application under Order IX. Rule 13, C. P. C. was not maintainable the court below viz. the Addl. Dist. Judge, Varanasi upheld the said objection and rejected the application. Hence, the defendant has now come up in the instant appeal and in support and opposition thereof I have heard the learned counsel for the parties. Sri Siddheshwari Prasad, learned counsel for the defendant-appellant raised the following contententions : (i) In view of the valuation of the Suit amounting to Rs. 8995/- the suit could not be tried as a suit of the nature of Small Causes and it could be tried only as a regular suit and, on that basis, the provisions of the Provincial Small Cause Courts Act would not be applicable to the decree which was passed by the court below. (ii) Even if the suit were held to be triable as a suit of the nature of Small Causes, still on a true interpretation of the relevant provisions of the Provincial Small Cause Courts Act, the proviso to Sec. 17 would not be attracted, inasmuch as, Section 17 and its proviso should be interpreted to be applicable only to regular courts of Small Causes and not to Courts which have been invested with the jurisdiction to try suits of the nature of Small Causes. (iii) In the facts of the instant case, the appellant should not be made to suffer on account of the mistake which was committed by the trial court. On the other hand, Sri Laxmi Behari, learned counsel for the plaintiffs-respondents, has supported the order under appeal and has questioned the maintainability of the appeal itself on the ground that as the order in question was passed in a suit which was bound to be treated as a suit of the nature of Small Causes, therefore, no appeal would lie and, if at all, only a revision could lie under Section 25 of the Provincial Small Cause Courts Act. He has also contended that it will make no difference even if the contention of Sri Sidheshwari Prasad were to be accepted that the suit was really tried by the court below on its regular side and not as a suit of the nature of Small Causes.
(3.) BEFORE dealing with the rival contentions raised at the Bar. I think, I should draw attention to the relevant statutory provisions. First, I shall notice the provisions of the Provincial Small Cause Courts Act. Section 4 defines Court of Small Causes in the following words : " 4. Definition. - In this Act, unless there is something repugnant in the subject or context " Court of Small Causes" means a Court of Small Causes constituted under this Act, and includes any person exercising jurisdiction under this Act in any such court." Section 5 provides for the establishment of Courts of Small Causes. Section 6 provides for the appointment of a Judge of such a Court of Small Causes. Section 15 occurring in Chapter III laid down as follows till it was amended by the U. P. Civil Laws Amendment Act 1968 : " 15 (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable. (2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a court of Small Causes. (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order." By the aforementioned amending Act, in sub-section (2) of Section 15 the sum of Rs. 1,000/- was substituted for the sum of Rs. 500/-and in sub-section (3), the figure of Rs 2000/- was substituted for the figure of Rs. 1000/-. It may be stated here that the Uttar Pradesh Civil Laws Amendment Act, 1968 was the President' s Act No. 35 of 1968 and it was repealed by the U. P. Civil Laws Amendment Act of 1970. While repealing the said President' s Act, the old sub-sections (2) and (3) of Section 15 were re-enacted with the result that basically the position remained as it was brought about by the amending Act of 1968.;