- (1.) THESE two applications are taken up together and they are disposed by this common judgment. The two applications are at the instance of the respective defendants of the two cases and are directed against the Orders dated November 8, 2011 and November 14, 2011 passed by the learned Chief Judge, Presidency Small Causes Court, Calcutta in S.C.C. Suit No.s 362 of 2006 and 367 of 2006 respectively thereby rejecting applications under Section 19A of the Presidency Small Causes Court Act.
(2.) THE short fact involved in the two matters is that the mother of the petitioner was originally a monthly tenant in respect of the premises in suit as described in the schedule of the plaint respectively. After demise of the mother of the petitioner, her son inherited the said tenancy and became a monthly tenant of the same. THE opposite parties have contended that they purchased the premises in suit by a registered Deed of Sale and they filed the suit for eviction being S.C.C. Suit No.s 362 of 2006 and 367 of 2006 respectively contending, inter alia, that the defendants of the suits were licensees in respect of the premises in suit. THE suits were decreed ex parte by the learned Registrar, Small Causes Court, Calcutta. THEreafter, applications under Order 9 Rule 13 of the C.P.C. were filed for setting aside the ex parte decrees and the learned Chief Judge, Small Causes Court initially fixed the matters for himself for hearing. THEreafter, they were transferred to the 3rd Bench, Small Causes Court, and again taken back the suit and the learned Chief Judge proceeded to hear the applications under Order 9 Rule 13 of the C.P.C. At that stage, the petitioners filed an application under Section 19A of the Presidency Small Causes Court, Calcutta, in the respective suits contending, inter alia, that the applications for setting aside the ex parte decree are to be heard and disposed of by the Court which passed the decree, that is, the learned Registrar, Small Causes Court, Calcutta and not by the learned Chief Judge. That prayer was rejected by the impugned order. Being aggrieved, these two applications have been preferred. Upon hearing the learned Counsel for the petitioner and on going through the materials-on-record, I find that the revisional applications have no merit at all. It is true that the learned Registrar, Presidency Small Causes Court, Calcutta passed the ex parte decrees against the respective petitioners and thereafter, the respective petitioners filed applications under Order 9 Rule 13 of the C.P.C. Mr. Ashok Bhattacharyya, learned Counsel appearing for the petitioners has vehemently contended that as per provisions of Section 19A of the Presidency Small Causes Court Act the applications are to be heard by the Court which passed the ex parte decrees. But, the learned Registrar sent the matter to the learned Chief Judge, for decision, that is, for hearing the applications for setting aside the ex parte decrees. Even, the learned Chief Judge once sent the said matter to the learned Judge, 3rd Bench of the Presidency Small Causes Court and then again recalled the orders and started to proceed with the hearing of the application filed in the said suit. As to the ground for taking up the matter by the learned Chief Judge himself, the learned Chief Judge, Presidency Small Causes Court, Calcutta has noted that the learned Chief Judge was acting under the Order of the Honble Court and it has got sufficient jurisdiction to entertain the said application. Above all a proceeding under Section 41 of the Presidency Small Causes Court Act is not a suit and therefore, there cannot be any decree. The learned Chief Judge has also held that a petition under Order 9 Rule 13 of the C.P.C. or under Chapter IX Rule 15 of the Presidency Small Causes Court Manual cannot be taken to be plaint and as such, the provisions of Section 19A of the Presidency Small Causes Court Act is not applicable in the case of a petition under order 9 Rule 13 of the C.P.C. The findings of the learned Chief Judge, I find is supported by the decision of C.O. No.1619 of 2011 arising out of the same suits whereas the Honble Justice Dipankar Datta directed the learned Chief Judge, Presidency Small Causes Court, Calcutta to dispose of the applications under Order 9 Rule 13 of the C.P.C. filed by the respective parties at an early date without granting any unnecessary adjournments. It is also observed that the applications should be disposed of positively within 3 months from the date of receipt of the copy of the order. Since, the above civil revision arose out of the present suits, the learned Chief Judge, Presidency Small Causes Court is bound to follow the directions of the Honble Court and as such, he is bound by such orders. As per decision of Nalinakhya Bysack V. Shyam Sunder Haldar and ors. reported in AIR 1953 Supreme Court 148 according to the provisions of Presidency Small Causes Court Act, 1882 particularly Section 41, although under the rules framed under the Act, the application under Section 41 is initiated by a plaint, the proceeding is not a suit and the order for delivery of possession under Section 43 does not strictly speaking amount to a decree for recovery of possession.
(3.) DURING argument, Mr. Ashok Bhattacharyya, learned Counsel appearing for the petitioner submits that this Honble Court cannot pass any order in violation of the statutory provisions of the Presidency Small Causes Court Act, 1882 and as such, instead of complying with the directions of this Honble Court, the learned Chief Judge ought to have sent the application under Order 9 Rule 13 of the C.P.C. to the learned Registrar for disposal. With due respect to Mr. Bhattacharyya, I am of the view that the learned Chief Judge, Presidency Small Causes Court, cannot take a view contrary to that expressed by this Honble Court. The learned Chief Judge, Presidency Small Court is to follow the directions of this Honble Court in verbatim and he has no other alternative way It may be noted herein that there is no material-on-record, to show that being aggrieved by the order of this Honble Court in C.O. No.1619 of 2011, the petitioners preferred any review before this Honble Bench or any Special Leave Petition before this Honble Apex Court. So, the order passed by the Honble Court in C.O. No. 1619 of 2011 shall sustain and the learned Chief Judge, City Civil Court, is quiet within its jurisdiction to follow the directions by this Honble Court. In that view of the matter, I am of the view that the learned Chief Judge, Presidency Small Causes Court, has rightly observed that he is empowered to deal with the matter in question as per order of the Honble Court, Calcutta. There is nothing to interfere with the impugned order.;