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Fire Stone Tyre And Rubber Co. Of India Ltd. v/s T. S. Ramanuja Aiyangar

    Civil Revn. Petn 484 Of 1949
    Decided On, 25 September 1950
    At, High Court of Judicature at Madras
    For the Appearing Parties: B.V. Viswanatha Iyer, J.V. Srinivasa Rao, S. Ramayya Nayak, T. Krishnaswami Iyengar, T.R. Srinivasa Iyengar, Advocates.

Judgment Text
Balakrishna Ayyar, J.

( 1 ) THE principal question of law that I have to determine in these two civil revision petns is whether when a Full Bench of the Small Cause Court in the presidency Town, Madras, has dismissed an appln for a new trial for default of appearance it is competent to that Ct to entertain an appln to set aside the order of dismissal for default.

( 2 ) IN support of his contention that it is competent to do so the learned advocate for the petnr advanced three arguments. The first was this. It has been decided in 'lodd Govindoss Krishnadoss v. Rukmani Bai', 38 Mad 438 : (AIR (2) 1915 Mad 101) that when two or more Judges of the Small Cause court are sitting together for the purpose of exercising the jurisdiction conferred by Section 38, Presidency Small Cause Courts Act, they are sitting "in a suit" within the meaning of those words in Section 69, and if a reference is made to the H. C. under its provisions, such reference is valid. Order 9, Rule 9 empowers a Ct to set aside an order dismissing a suit for default when a party satisfies it that he had sufficient cause for his non-appearance when the suit was called for hearing. As the Small Cause Court is sitting "in a suit" when it deals with a matter under Section 38 of the Act it has got jurisdiction to set aside the order of dismissal for default. The second argument, in a sense overlaps the first and it was to the effect that even if a proceeding under section 38 of the Act cannot itself be considered to be a suit it might very properly be regarded as a continuation of the suit or at least as in the nature of a suit and when so regarded Section 141, Civil P. C. will apply and therefore the procedure laid down in Order 9, Rule 9 can be availed of. To reinforce this argument the learned advocate referred to the decision in 'venkatanarasimha rao v. Hemadri Suryanara-yana', 50 M L J 75 : (AIR (13) 1926 Mad 325) where the facts were these: A suit having been dismissed for default, an appln to restore the suit was put in. This appln was also dismissed. A second appln was then filed to set aside the dismissal of the earlier appln. The question having arisen whether it was competent to the Ct to entertain that appln it was ruled that by virtue of Section 141, Civil P. C. the Ct had jurisdiction to restore the appln the reason given being that though an appln under Order 9 is not a petn in a suit, it is an original matter in the nature of a suit covered by Section 141, civil P. C. Reference was also made to 'venkatasundara Venugopalasami v. President of the Board of Commissioners H. R. E. B. Ma Iras', AIR (25) l933 Mad 214 : (175 IC 309) which was a case under the Madras Hindu Religious endowments Act. There it was decided that Order 9, Civil P. C. applies to an appln presented to the Dist Ct under Section 84, Madras Hindu Religious endowments Act and that when such an appln is dismissed for default the Ct has power to restore it when it is satisfied that there was sufficient cause for the failure of the applt to appear. It was asked to extend by way of analogy the scope of these two decisions to a proceeding under Section 38, Small Cause courts Act. 2a. Now the principal difficulty in accepting this line of reasoning is that it is not possible to treat a proceeding under Section 38, Small Cause Courts Act as being either a suit or a proceeding in the nature of a suit. A' reference to Order 41, Rule 7 of the rules framed under the Small Cause Courts Act makes it very plain that the jurisdiction of the Small Cause Court under Section 38 is substantially in the nature of a revisional jurisdiction. That order is as follows:

"7. The appln will not ordinarily be granted unless one of the grounds specified in the following Cls is established: (a) That the decree or order is contrary to some specified law or usage having the force of law; (b) That there was a substantial error in the procedure as prescribed by these rules or by any other enactment applicable to the ct which has produced error in the decision of the case on merits, (c) that the appel. has discovered new and important matter or evidence which would affect the decision of the case on the merits and which, after the exercise of due diligence, was not within his knowledge and could not be produced by him before the Ct at the time when the decision was passed. "

( 3 ) THE decisions of this Ct confirm the impression produced by a reading of this order. In 'doraiswami lyengar v. Radhakrishna Chetti', AIR (25) 1938 Mad 669: (182 IC 19) it is stated that though Section 38 of the Act is couched in general terms a number of cases decided by this Ct beginning with 'sadasook gambirchand v. Kannayya', 19 Mad 96 and ending with the case 'sikandar rowther v. Ghose Mohideen', 40 Mad 355: (AIR (4) 1917 Mad 135 FB) have laid down in clear terras that a Pull Bench of Small Causes when called upon to exercise its powers under Section 38 is not a Ct. of appeal and cannot, therefore, arrogate to itself the powers of an appellate Ct. "in other words, its jurisdiction is merely revisional in nature". It is not, therefore, possible to extend the scope of the decisions in 'k. Venkatanarasimha Rao v. Hemadri suryanarayana', 50 MLJ 75: (A I R (13) 1926 Mad 325) and in 'chinta Venkata sundara Venugopalasami v. President, Board of Commissioners, H. R. E. Madras', AIR (25) 1938 Mad 214 : (175 IC 309) by way of analogy to proceedings under Section 38 Small Cause Courts Act.

( 4 ) THE third argument of the learned advocate for the petnr was based on an amendment made to Section 41, Appellate Side Rules of the H. C. , which is in these terms:

"41b. The provisions of Rule 11 (2), 17, 18, 19 and 21 of Order 41 Civil p C. shall apply 'mutatis mutandis' to civil Revn petns. " The argument was that if this Ct can restore a civil revn petn dismissed for default it may be assumed that the Small Cause Ct may do likewise in respect of a matter under Section 38. I am not sure that this inference necessarily follows. When dealing' with a matter under Section 38, small Cause Courts Act that Ct has to conform to the rules made by this Ct and it is difficult to see however it can adopt a procedure which is not provided for by those rules. In 'ramamurthi Iyer v. Meenakshisundarammal', 1945-1 MLJ 4: (AIR (32) 1945 Mad 103) and 'subbamma v. Venkatareddi', 1942-2 MLJ 356: (AIR (30) 1943 mad 260) it was laid down that "this Ct has no jurisdiction to restore to file a revn petn which has been dismissed for default as Order 9 Rule 9, civil P. C. is not applicable to the revn petns. Section 151, civil P. C. does not confer upon the Ct the power to exercise a jurisdiction which it does not otherwise possess".

In fact it was apparently to get over the difficulty created by these two decisions that the Appellate Sid

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e Rules were amended in the manner indicated above. But no such amendment has been made in the rules binding the Small Cause Court. ( 5 ) FOLLOWING these decisions I must hold that a Bench of the Small Cause Court has no power to entertain an application to restore a matter under Section 38 that has been dismissed for default. ( 6 ) I, however, think, that on occasions considerable hardship might be caused to litigants if the Ct is not empowered in a proper case to restore a petn dismissed for default. I would therefore suggest that the rules applicable to the small Cause Court be amended, as was done in the case of the Appellate Side rules of this H. C. ( 7 ) THESE two revn petns are dismissed with costs.