Courts Act (IX of 1887)
a Small Cause Court ends in a decree —Appeal against a decree is a creature of
statute—No appeal Lies against small cause court’s decree.
Sayeb Ali.. Appellant.
Vs. Sree Gopal Chandra Das and others.. Respondents (1980) 32 DLR (AD) 212.
15—Transfer—Upon transfer of Small Cause Courts suit from the Court which was
invested with Small Cause Courts power to another Court under section 24, C.P.
Code which lacked power to try a suit as a Small Cause Courts suit the decree
passed by the transferee Court is Small Cause Courts decree and as such no
appeal will lie against such a decree.
Jamiruddin Ahmed Vs. Md. Nurul Islam (1967) 19 DLR 30.
jurisdiction depends upon the subject-matter of the suit.
contended that the suit was not competent to be tried in a Small Cause Court
because it was in fact a suit asking for a declaration.
Held: Jurisdiction of a Court in a suit tried under the Small Cause
Courts Act depends upon the subject-matter of the suit and not upon the
correctness of the plaintiffs’ contention as respect the subject-matter.
industries Vs. Pakistan (1962) 14 DLR (SC) 60.
Sec. 15(2) and Second Schedule: Suit for ejectment of tenant is
cognizable and triable by a Court of Small Causes—Articles 4 and 11 of the
Second Schedule do not bar such trial by such Court.
Rahman Vs. Md. Manwar. (1970) 22 DLR 505.
S. 15(2) and Second Sch. Art. (4): A suit for ejectment
of tenant is excluded from article (4) of the Second Schedule and as such
triable by a Small Cause Court even though ii involves the determination of a
question of title.
of the Second Schedule of the Provincial Small Cause Courts Act shows that a
suit for ejectment of a tenant has been excluded from the am- bit of the said
article (4) unless of course any other court or officer has been given
exclusive jurisdiction in the matter. Thus a suit for ejectment of a tenant
which is not exclusively triable by a particular court or officer is not
contained within the ambit of article 4) of the Second Schedule. In view of the
provisions of sub-section (2) of section 15 of the Provincial Small Cause
Courts Act, 1887, such Suits arc cognizable and triable by a Court of Small
Even in a
case where the principal point is one relating to the question of determination
of title, the same can be considered and decided by a Court of Small Causes
provided the suit is otherwise triable by such a Court and does not fall
outside the ambit of its jurisdiction in views of the subject- matter being
included within the list of articles mentioned in the Second Schedule of the
Small Cause Courts Act. It is true that decision on the question of title in a
suit for damages is not binding on the parties.
Rahman Vs. Md. Maniur, (1973) 25 DLR 211.
out whether a suit is triable by a court of small causes or not, it is
necessary to examine the subject-matter of the litigation itself.
The frame of
the suit itself is necessary to be taken into consideration before deciding
whether the suit is of the nature triable by the Small Cause Court or not. Ibid
in respect of pecuniary jurisdiction not raised and judgment delivered—No
Krishna Das and another..Petitioner. Vs. Abdul Kader Mia..Opp.-Party. (1983) 35
& 16— Small Cause Courts—Determination of jurisdiction—In
determining whether a Suit is triable by a Court of Small Causes or not the
Frame of the suit itself is necessary to be taken into consideration—
Objections raised in the written statement alone cannot determine the nature of
the suit—Nature of the suit can be best ascertained by examining the
subject-mailer before the court.
Rahman Vs. Md. Mansur, (1970) 22 DLR 505.
Ss. 15 and
small cause by a Court not invested with Small Cause Courts power, not without
jurisdiction when objection to such trial not taken at the initial stage.
It will be
observed that while in relation to suits specified in the Second Schedule of
the Provincial Small Cause Courts Act, sub-section (1) of section 15 provides
that a Small Cause Court “shall not take cognizance”, section 16 provides that
save as specifically provided by this Act or by any other enactment a Suit
cognizable by a Small Cause Court “shall not be tried” by any other Court which
may have jurisdiction within the local limits of the jurisdiction of the Court
of Small Causes by which the Suit is triable.
contention that section 16 of the Provincial Small Cause Courts Act impliedly
bars taking of cognizance of small cause suits by ordinary courts, cannot be
accepted in the face of the clear terms of the section which relate only to
Trial of a
small cause suit, through mistake, by a Court having no small cause court
powers, without any objection from the parties, would not he a nullity; and
that the decree resulting there from cannot be challenged on the ground of
absence of jurisdiction.
Gope Vs. Ahmed Ali (1973) 25 DLR 142.
of Small Cause Courts to decide question of title—A Court of
Small Causes is competent to consider and decide in a suit the question of
title if the suit is otherwise triable by it —But such decision regarding title
is neither final nor binding on parties to the Suit.
Even in a
case where the principal point is, one relating to the question of
determination of title, the same can be considered and decided by a Court of
Small Causes provided the suit is otherwise triable by it and does not fall
outside the ambit of its jurisdiction in view of the subject-matter being
included within the list of articles mentioned in the second schedule of the
Small Cause Courts Act.
Rahman Vs. Md. Mansur (1970) 22 DLR 505.
Ss. 15, 23—The Court
of Small Causes is entitled to consider question of title incidentally but not
when the question of title becomes an issue on law.
Mia.. Appellant, Vs. Maya Debi & ors.. Respondents (1983) 35 DLR (AD) 310.
S. 16— Small
Cause Court suit— Munsif invested with Small Cause Court powers tried the Suit of
Small Cause Court nature in an ordinary way—Trial may be irregular but not
Judicial Officer is invested with both the powers of an ordinary Civil Court
and those of the judge of Small Cause Courts for the same locality. The suit
being of a certain value it has to be filed before the judge either in his
ordinary file or in his Small Cause Court file and he keeps it in one file
instead of the other and adopts a procedure other than that prescribed for a
Small Cause Court suit, that by itself will not alter the character of the
suit, for the mode of trial does not change the character of the suit.
Pradhan Vs. Jasoda Kanta Sen & ors. (1954) 6 DLR 277.
the judge was invested with the powers of the Judge of the Small Cause Court,
he did not adopt the summary procedure of a judge of the Small Cause Court and
instead followed the procedure prescribed by the Code of Civil Procedure,
recorded evidence at length and also wrote out a considered judgment. As the
judge had the powers of a judge of the Small Cause, he must have tried the suit
as a judge of the Small Cause Court, even if the procedure adopted by him is
not one of Small Cause Court. Ibid
S. 16— Utmost
that can be said that according to the letters of the provisions f law the
judge acted with irregularity but it cannot be said that such irregularity is a
material irregularity or it is of such a nature as has caused failure of
Pradhan Vs. Jasoda Kanta Sen & ors. (1954) 6 DLR 277.
Court suit tried as an advisory suit—effect.
– Section 16
of the Provincial Small Cause Courts Act provides that a Suit cognizable by a
Court of Small Causes shall not be tried by any other Court having jurisdiction
within the local limits of the jurisdiction of the Court of Small Causes by
which the suit is triable. The section does not extinguish the jurisdiction but
only prevents the exercise of it, if the suit is recognizable by a Small Cause
Court. If a Court by error tries a Suit which is of a nature cognizable by a Small
Cause Court exercising jurisdiction within the same limits, then the
proceedings of the Court are not entirely without jurisdiction and therefore,
arc not a nullity. Such a case is not a case of want of jurisdiction. It is a
case of exercise of jurisdiction in violation of the prohibition imposed by
sec. 16 of the Provincial Small Cause Courts Act. The executing Court is not
competent to treat the decree as a nullity nor is it open to the defendant to
impeach it, he having raised no objection to the trial.
Mia vs. Muslim Khandakar (1954) 6 DLR 588.
—S. 16—On a true
construction of section 9 read with Order 46, rule 7, C.P. Code it is clear
that trial of a small cause by a Court not invested with small cause court’s
power is not a nullity when no objection to such trial was taken initially.
from rule 7 of Order 46 of the Code of Civil Procedure on a true construction
of section 9 of the Code and section 16 of the Provincial Small Cause Courts
Act, the only conclusion that can be reached is that violation of the
provisions of section 16, through mistake and in the absence of an objection by
any parties to the suit, cannot render the trial of a small Cause suit by a
Court not invested with Small Cause Court powers a nullity.
Sansosh Lal Gape
Vs. Ahmed Ali, (1973) 25 DLR 142.
exclusive jurisdiction of S.S.C. Judge erroneously tried by a court other than
the S.S.C. Judge—effect of such trial.
The trial of
a case by a court other than the S.S.C. Judge cannot be a case for want of
jurisdiction in spite of the violation of the provision imposed by section 16
of the Small Cause Courts Act since the Legislature intended to cure such
defect by taking recourse to the provision of Order 46, rule 7(2) of the C.P.
Code. So, unless it is found that substantial justice has not been meted out by
the court who tries the suit, the decree cannot be set aside simply on the
ground that the case was tried by a Court other than the Small Cause Court.
Khan Vs. Anwari Khatoon (1970) 22 DLR 444.
applied to have an ex-parte Small Cause Court’s decree set aside, furnished
security under sec. 17(1) of the Small Cause Courts Act at the time of
presenting his application with the permission of the Court.
was a sufficient compliance with sec. 17(1) of the Act and his application
cannot be dismissed for not depositing the decretal amount.
Vs. Lakshman Ch. Dhali. (1959) 11 DLR 402.
application for an order to set aside an ex parte decree is Filed on the last
date of limitation without deposit of security and the security was furnished
after the expiry of limitation, the application is barred and if in such a case
an order is made restoring the suit under Or. 9 r. 13 of the Code of Civil
Procedure the same is bad in law. 54 CWN (DR2) 67
—S. 17(1):—Plaintiffs suit was dismissed cx parte—awarding the cost to the
defendant— Although, a decree for such an award has been drawn up but such a
decree cannot be taken as one within the meaning of a “decree passed ex-parte”
as contemplated in the proviso to section 17(11) of the Act.
Vs. Sontosh Kumar Dos, (1979) 22 DLR 790.
—An order of
dismissal for default not being a decree within the meaning of section 2(2)(b)
of the C.P. Code, an application for setting aside the dismissal order passed
ex-parte was not barred under section 17(1) of the Act. Ibid.
of the proviso to the subsection is mandatory and must be complied with.
Saha Vs. Binod Behari Saha (1977) 29 DLR 259.
the decretal amount may not be necessary but security for performance of the
decree is mandatory.
In a suit
for ejectment of the defendant although a deposit of the decretal amount may
not be necessary, but a security for the performance of the decree or
compliance with the judgment appears to be the mandate of the proviso to
section 17(l) of the Act. Ibid.
required to make deposit of the amount due under the decree or give security
for performance of the decree at the time of presenting his application—But
nevertheless if the other party fails to raise any objection as to non
fulfillment of the conditions stipulated in the proviso hut sits over his right
and the applicant’s application has been allowed by court he is equally guilty
of omission like that of the applicant and having regard to the fact that if
the applicant’s application under the proviso to section 17(1) is allowed, the
other party is not going to be prejudiced in any way and hence the order
granting the application under the proviso does not require to he interfered
Ahmed…Appellant Vs. Md. Meher Ali and ors…Respondents (1983) 35 DLR (AD) 178.
application for setting aside the ex-parte decree passed by the Small Cause
Court filed within time but the security bond furnished beyond the period of
limitation, it will be deemed as due compliance of the proviso to
sub-section(1) of section 17 of the Provincial Small Cause Courts Act.
such an application for setting aside the ex-parte decree must be treated to
have been validly presented.
Behari Saha. Vs. Nitya Gopal Shaha. (1981) 33 DLR (AD) 130.
Question of title cannot be gone into except incidentally.
In a Small
Cause Court suit, the Court has got no business to go into the question of
title except incidentally for the purpose of deciding the question raised in
the suit which is absolutely necessary for decision of the case.
Khan Vs. Abdul Barkat (1958) 11 DLR 427.
of the Provincial Small Cause Courts Act negatives the proposition that section
16 of the said Act was intended altogether to deprive the ordinary Civil Courts
of the jurisdiction conferred on them by section 9 of the Code over a
particular type of suits of civil nature, viz, small cause Suits.
Gape Vs. Ahmed Ali, (1973) 25 DLR 142.
eviction of tenant—in a suit for eviction of tenant the S.S.C. Judge can go
into the question of title incidentally only when such step was absolutely
necessary to decide the points at issue.
Salim Vs. Mohammad Siddique Jamal (1970) 22 DLR 841.
Court Judge, in case of question of title to the property involved, may return
the plaint or it may not do so, and try the case touching the question of title
incidentally but not finally deciding the question of title.
is, however, discretionary, and it clearly indicates that a Small Cause Court
has the power to decide an incidental question of title in a suit which is
essentially of small cause nature, in case it chooses not to return the plaint.
Its decision on the question of title wills not, of course, be final arid,
therefore, will not be res judicata in a suit brought before a Civil Court.
provision of section 23 of the Small Cause Courts Act does not lay down that an
issue as to title renders a S.C.C. suit non-maintainable as such but enacts
that the authority of a S.C.C. judge to hear such a suit is discretionary.
Merajuddin Vs. Md. Anwarul Islam (1974) 26 DLR 314.
plaintiff, framed the suit for a declaration of title with other necessary
consequential relief’s, the mere enquiry into the question of title, will not,
by itself, convert the suit into a suit for title depending on proof or
disproof of title to immovable property.
Vs. Saulatunnessa (1977) 29 DLR 292.
S. 23(I)—Scope of
sections 23(1) and 28A(1) on the question of determining whether a Court of
Small Cause should try the suit or it should go to the ordinary Civil Court,
explained—Court having the lowest jurisdiction should be approached.
section 28A in the Small Cause Courts Act in 1962 and the original section 23
together have set up two different forums of concurrent jurisdiction for
determining whether h Court of Small Causes should try a suit filed before it
or it should go before an ordinary Civil Court for trial. Aid of section 23(1)
and of section 28A(1) cannot be invoked simultaneously, the proper course would
be to require the party concerned to move the trial Court in the first
decision has been made by the District Court under section 28A(1), that is
binding upon the Small Cause Court and it is no longer open to the latter to
exercise the power vested in it under section 23(1).
the Small Cause Court has declined to return a plaint under section 23(1), the
District Court will be competent to consider the question afresh on its own,
under section 28A(1).
however, a Small Cause Court decides that the suit involves questions of title,
which cannot be determined by it finally and returns the plaint accordingly
under section 23(1), no scope, is left for the application of section 28A(1).
Chandra Vs. Md. Alabaksh (1966) 18 DLR 208.