J.N. Bhatt, Acting C. J.
1. In this group of revision applications, a common question is involved, arising out of common provisions. Therefore, these matters are taken up together, upon the request of learned counsels appearing for the parties, and the matters are being disposed of by this common judgment, in a reference made by the learned Single Judge by order dated 10-10-2001 in Civil Revision Applications Nos.601 to 609 of 2001. The learned Single Judge has referred these matters to this Division Bench, in view of the referral order under Rule 5(2) of the Gujarat High Court Rules, 1993. It is jointly and rightly stated before us that the factual profile of each revision, is not required to be articulated, since common question of law is arising out of the provisions of [The] Presidency Small Cause Courts Act, 1882 (Act 15 of 1882) (for short `the Act'). The controversy, even on facts, is common, but some of the facts may be diverse in revisions.
2. The learned Single Judge has raised a question whether an application under Section 38 of the Act, is maintainable against the order for possession, mainly, application under Section 41 of the Act.
3. In the order of the learned Single Judge, the decision of this Court rendered by the then Hon'ble Chief Justice in Civil Revision Application No.1948 of 1996 pronounced on 23-12-1996, was relied upon, wherein, it has been observed that it would be open to the aggrieved party to prefer a revision before the appellate Bench, seeking new trial, by an application under Section 38 of the Presidency Small Causes Courts Act, against the order, mainly, the proceedings under the Act, which are known as P.S.R.P. The learned Single Judge did not agree with the view stating that Section 38 of the Act applies to a 'Suit', which has been decided by the Small Causes Court, and the case under Section 41 of the Act, is not a 'Suit', but an 'Application'. He also relied on the view propounded by this Court in a Single Bench decision in Girjashanker Prabhashanker Raval, Ahmedabad v. Manharlal Jetashanker Dave, Ahmedabad reported in 1983 GLH 865. It is in this context that when two divergent views were expressed by the concurrent Benches, the learned Single Judge referred the entire group of matters to the Division Bench, under Rule 5(2) of the Gujarat High Court Rules, 1993. In fact, Rule 5(1) applies in case of reference by a learned Single Judge to a larger Bench. Rule 5(1) provides that a Single Judge may refer any matter before him or question arising in such matter to a division bench of two Judges, or a larger bench, whereas Rule 5(2) provides that a Division Bench of two Judges may refer any matter before it or any question arising therein or any question referred to it under sub-rule (1) above to a Larger Bench. Of course, it is a mere slip of pen, and has no material bearing at this stage.
4. We have heard learned advocates appearing for the parties. We have considered dispassionately the common factual profile, the spectrum of relevant legislative mechanism, and the scheme of the provisions of Sections 38, 41 and 42 of the Act. We have also carefully considered the aforesaid two divergent decisions.
5. Thus, a short, but interesting question, which has been raised for our consideration and adjudication in this group of revisions, is as to whether an Application under Section 38 of the Act is tenable, against the order for possession passed by the Small Cause Court, in an Application under Section 41 of the Act?
6. With a view to appreciating the divergent views and the rival versions, let us first have a close look into the relevant provisions in the Act.
The applications came to be made before Small Causes Court Judge under Section 41 of the Act for order for possession of an immoveable property. There is no dispute about the fact that the proceedings under Chapter VII of the Act are not Suits. The order under Chapter VII is neither an inquiry nor an adjudication of title of the parties. Section 41 provides for a summary redressal for the recovery of possession of immoveable property of certain definite value at a rack-rent. The Court is empowered to pass an order for ejectment summarily against any person occupying the property situate within local limits of Small Cause Court's jurisdiction in Ahmedabad. Now, the interesting question requiring our serious attention is as to whether the order, decision or verdict in an application under Section 41 of the Act can be questioned under Section 38 of the Act or under Section 115 of the general revisional remedy provided in the Code of Civil Procedure, 1908 (for short `the Code'). In the decision referred to by the learned Single Judge in Kanchanben Maganlal Vaghela vs. Triambaklal Vadilal Vyas (C.R.A.No.1948/1996) dated 23-12-1996, the learned Chief Justice reached to a conclusion that it is open for the aggrieved party to prefer a revision before the appellate Bench seeking a new trial by application under Section 38 of the Act, against the order passed under Section 41 of the Act, and granted permission to withdraw the revision preferred under Section 115 of the Code so as to facilitate the party to prefer an application under Section 38 of the Act within the stipulated time.
7. It may be mentioned here that the proceedings under [The] Presidency Small Cause Courts Act, and provisions of Provincial Small Causes Act, are different under two different Acts. In this group of revisions, we are concerned with [The] Presidency Small Cause Courts Act, 1882. Section 41, as observed hereinbefore, provides for summary remedy for the recovery of the possession of immoveable properties in certain cases of immoveable properties situated within the local limits of Small Cause Courts' jurisdiction. There has been a purpose and policy behind incorporating this provision, with which, we are not concerned, at this stage, in this group of matters. Any order, decision or verdict under Section 41 is challengeable, but the question is whether the challenge should be under Section 38 of the Act or under Section 115 of the Code. After having given our anxious thoughts and consideration to the Legislative design and mechanism provided under the Act, we are of the opinion that the redressal and recourse is competent under Section 115 of the Code, and not under Section 38 of the Act.
8. Section 38 of the Act provides for a new trial of contested cases. It would be profitable to refer to the said provisions, which read here as under:-
'38. New trial of contested cases.- Where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code of Civil Procedure), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. Explanation.- Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant.'
It could very well be visualized from the aforesaid provision that it is designed to provide for a new trial of contested cases out of the proceedings in a suit. The Small Cause Court is empowered to order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. The order under challenge to the Small Cause Court in revision is not a proceeding under Section 47 of the Act. It is not a Suit on an application. The Legislative framework would manifestly disclose that summary procedure in respect of eviction and recovery of the possession of the immoveable property, probably, say in a case under Section 6 of the Specific Relief Act, are made by the Legislature, and for that purpose, the status and nature of the proceeding would be, an application, and not a suit, as normally understood and followed under the law. Therefore, in our opinion, order, decision, or direction in an application invoking the aids of provisions of Section 41 of the Act would not be competent under Section 38 of the Act, as it refers to a new trial of contested cases wherein the proceedings are in the nature of a Suit.
9. It would also be material to mention that jurisdiction conferred on Small Cause Court under Chapter VII is very special and limited jurisdiction. It empowers the Court to pass order and entitles parties to recover possession by summary procedure. Once the applicant, in an application under Section 41, elects to obtain relief, not under the ordinary procedure in ordinary civil Court, but under the summary procedure prescribed in Chapter VII of the Act, obviously, he has to strictly follow the provisions of that Chapter on order under Section 41 in an application by the Small Cause Court. Only revision will be competent under Section 115 of the Code. Prima facie, one would feel that the proceedings under Chapter VII are the proceedings like a Suit, but in reality, as per the statutory prescription under the Act, though proceedings under Chapter VII are proceedings sui generis, and partake of mixer of suit and execution procedure rolled into one, but in view of the statutory provision under Section 41, the nature and status of the proceeding is application, and not of a suit. Therefore, obviously, Section 38 which relates to a contested suit, would not be applicable and attracted, and therefore, the aggrieved party, by an order under Section 41 of the Act, can challenge only by filing revision under Section 115 of the Code.
10. Section 115 provides for the revision in certain contingencies and on fulfillment of certain conditions. It reads as under:-
'115. Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation.- In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'
11. It could very well be appreciated and visualized from the context and tenor of the aforesaid provision that a revision is competent before the High Court in a case, which has been decided by any Court subordinate to such High Court, and in which, no appeal lies thereto. It, therefore, becomes explicit that against the order under Section 41 of the Act by a competent Small Cause Court, which is subordinate to the High Court, no provision is made in the Act for appeal against such an order for an aggrieved party. The State of Gujarat, unlike the State of Maharashtra, has not opted for amendment in Section 42 of the Act. In the State of Maharashtra, by amendment, appellate provision is made in Section 42. Section 42 of the Act, applicable to the State of Gujarat, does not provide for an Appeal. Therefore, competent forum to challenge an order in an application under Section 41 of the Act will be a revisional forum, i.e., the High Court, under Section 115 of the Code. In our opinion, with due respect, the proposition laid down in Kanchanben Maganlal Vaghela case (supra), is not a correct law, whereas the proposition of law laid down in Girjashankar Prabhashankar Raval case (supra) is the correct law, and therefore, we are of the opinion that the provisions of Section 38 of the Act would not be attracted, and the competent forum to challenge such an order is revisional forum i.e. concerned High Court, under Section 115 of the C.P.C. The law laid down in Girjashankar Prabhashankar Raval case (supra), is, therefore, required to be upheld being correct and proper exposition of law, whereas the law laid down in Kanchanben Maganlal Vaghela case (supra), is not correct, and, therefore, the decision rendered by the learned Chief Justice, in that case, is required to be overruled.
12. We, therefore, answer the common question referred to us accordingly, and direct the Registry to place all these matters before the learned Single Judge taking up such matters for decision on merits in accordance with law.
The common question is answered accordingly.