| SooperKanoon Citation | sooperkanoon.com/728432 |
| Subject | Civil |
| Court | Kerala High Court |
| Decided On | Nov-26-2004 |
| Case Number | W.A. No. 1998 of 2001 |
| Judge | R. Bhaskaran and; K.R. Udayabhanu, JJ. |
| Reported in | 2005(1)KLT293 |
| Acts | Code of Civil Procedure (CPC) , 1908 - Sections 96(4); Small Cause Courts Act - Sections 12 |
| Appellant | Rajappan Achari |
| Respondent | Mathava Kammathi |
| Appellant Advocate | Rajeev V. Kurup, Adv. |
| Respondent Advocate | R. Lakshmi Narayan, Adv. |
| Disposition | Revision allowed |
| Cases Referred | Parameswaran Pillai v. Nilakanta Pillai |
R. Bhaskaran, J.
1. This revision is placed before us on a reference by Justice Sankarasubban, as the learned Judge felt that the decision reported in Pariyaran Panchayat v. Damodaran Nair, 1999 (3) KLT 205, requires reconsideration.
2. This revision arises out of the order passed by the District Judge, Kottayam, in A.S.198 of 2000 holding that the appeal was not maintainable Under Section 96(4) of the Code of Civil Procedure. The suit was filed for recovery of damages and the Trial Court decreed the suit for Rs. 2150/- with 12% interest from the date of the suit till the date of decree and thereafter with 6% interest on Rs. 2000/-. According to the Appellate Court, Under Section 96(4) of the Code of Civil Procedure, no appeal shall lie, except on a question of law, if the value of the subject matter of the original suit does not exceed Rs. 3000/- and relied on the decision in Pariyaram Panchayat's case.
3. In this revision it is contended that the interpretation given by the Appellate Court to Section 96(4) of the Code of Civil Procedure is wrong and the appellate Court was not justified in relying on the decision in Pariyaram Panchayat's case, as that decision turned on the interpretation of Section 102 of the Code of Civil Procedure. In the alternative, it is also argued that the decision in Pariyaram Panchayat's case requires reconsideration.
4. Section 96(4) of the Code of Civil Procedure as it stood prior to the amendment in 1999 reads as follows:
'No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.'
What is barred Under Section 96(4) is an appeal not involving a question of law from a decree in any suit of the nature cognizable by Courts of Small Causes. If the suits are excluded from the purview of the Small Causes Courts Act and if the suits are specifically included in the schedule to Small Cause Courts Act, cognizance of which are excluded from the jurisdiction of the Small Cause Courts, as per Section 12 of the Act, then necessarily, the appeal is maintainable even on facts before the first Appellate Court.
5. In Pariyaram Panchayat's case, the learned Single Judge considered the applicability of Section 102 of the Code of Civil Procedure with respect to the maintainability of the Second Appeal. ection 102 of the Code of Civil Procedure reads as follows:
'No Second Appeal in certain suits:-- No Second Appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the Original Suit does not exceed Rs. 3000.
After the amendment of Section 102 by the Amendment Act, 2002, a drastic change is made in the words used in the Section. At present, no Second Appeal shall lie from any decree when the subject matter of the Original Suit is for recovery of amount not exceeding Rs. 25,000/-. The words 'suit of the nature cognizable by Courts of Small Causes' are conspicuously absent in the amended Section. Prior to the amendment, there was no difference in the wordings in Section 96(4) and 102 of the Code of Civil Procedure. In paragraph 4 of the judgment in Pariyaram Panchayat's case, the learned Single Judge has stated as follows:
'It was contended by either side that as the claim was for damages in respect of an act done by an officer like the Executive Officer of a Panchayat statutorily employed to cut the branches of the trees hanging over the residential premises of another, causing danger to human life and property, it will not be a suit of small causes and that Second Appeal is prohibited as per Section 102 only from a decree in a suit triable by Courts of Small Causes. This being not a decree of a Small Cause Court, the prohibition of Second Appeal contained in Section 102 does not have any application'.
In paragraph 5 it is stated that Section 102 of the Code of Civil Procedure has brought within its fold certain suits which are not pure small cause suits in terms of Section 12 of the Kerala Small Cause Courts Act, 1957. Since Section 102 of the Code of Civil Procedure uses the words of the nature cognizable by the Courts of Small Causes, it is held that it would indicate something more than the suits cognizable by Courts of Small Causes.
6. Under Section 12(1) of the Small Cause Courts Act, a Court of Small Causes shall not take cognizance of the suits specified in the schedule as suits excepted from the cognizance of a Court of Small Causes. Sub-section 2 of Section 12 states that subject to the exceptions specified in the schedule and to the provisions of any enactment for the time being in force, all suits of civil nature of which the value does not exceed Rs. 500/-shall be cognizable by a Court of Small Causes. It is therefore clear that it is by virtue of the schedule to the Small Causes Court Act that various types of suits are taken out of the purview of the Small Cause Courts Act if the valuation in the suit is less than Rs. 500/-. In other words, the suits of the nature of a Small Cause are those suits which are not specified in the schedule and which are coming within the pecuniary limit as provided Under Section 12 of the Small Cause Courts Act. If a suit is of the nature which is included in the schedule of the Small Cause Courts Act, it can be said that, that is not a suit of the nature of small cause. In this case, the contention of the defendant is that the suit was excluded from the purview of the Small Cause Courts Act by virtue of Clause 36(j) of the schedule of the Small Causes Courts Act and therefore, the appeal does not come within Section 4 of Section 96.
7. In Chandu Nair v. Abdurahiman, 1973 KLT 1035, a Division Bench of this Court considered the scope of Section 102 of the Code of Civil Procedure. It was found that the suit was not one of the nature specified in the schedule as a suit excepted from the cognizance of a Court of Small Causes and therefore there was no bar in the suit being tried as a Small Cause Suit and hence it was found that Section 102 of the Code of Civil Procedure was attracted since the suit was only for rent of Rs. 25/-. In B. Sreeramulu v. K. Venkateswara Rao, AIR 1959 A.P.92, a Division Bench of the Andhra Pradesh High Court considered the scope of Section 102 of the Code of Civil Procedure. It was held that though the value of the subject matter of the appeal was less than Rs. 500/-, it was the character of the suit as it was originally framed and presented to the Courts and not which it may assume in the course of or after the trial by virtue of the findings of the Court or in the appeal that may eventually be brought that determines the nature of the suit for the purpose of Section 102 of the Code of Civil Procedure. A perusal of the schedule to the Small Cause Courts Act will show that the suits which are excepted are suits in which complicated questions of fact and law may be involved and though the relief is valued in the plaint at less than Rs. 3000/-, they are to be tried by the Civil Court as an original suit and therefore, the appeal is maintainable before the Appellate Court, irrespective of the question whether there is any question of law involved or not. Therefore, the only interpretation, which is possible for the words of the nature cognizable by the Courts of Small Causes is that such suits must be suits not excepted under the schedule of the Small Causes Courts Act and suits coming within the pecuniary limit as provided in the Act. Therefore, the conclusion in paragraph 5 of the judgment in Pariyaram Panchayat's case does not appear to be correct.
8. The learned counsel for the appellant also relied on the decision reported in Parameswaran Pillai v. Nilakanta Pillai, 1961 KLT 187, and contended that since the suit is for realisation of money by way of damages on account of the cutting of trees from the property belonging to the plaintiff, such suits are specifically excepted under Clause 36(j) of the schedule to the Small Causes Courts Act. The learned counsel for the respondent, on the other hand, contended that whether on the pleadings, the suit comes under Clause 36(j) or any other clause in the schedule has to be examined by the Appellate Court, before deciding as to whether the appeal was maintainable by applying Section 96(4) of the Code of Civil Procedure to the facts of the case. This question has not been considered by the appellate Court. The Appellate Court only held that the appeal was not maintainable in view of the valuation of the subject matter of the suit.
In the result, the C.R.P. is allowed and the order passed by the Appellate Court is set aside and the Appellate Court is directed to consider the appeal afresh. If the Appellate Court finds that the suit comes under any one of the clauses excepted under the Schedule to the Small Cause Courts Act, the appeal can be heard on merits and decided. The learned counsel for the appellant submitted that even if it is not excepted under the provisions of the Small Cause Courts Act, if a question of law is involved, the Appellate Court has got jurisdiction to hear the appeal. This also can be examined by the Appellate Court. The revision is allowed' as above and the parties shall bear their costs in this revision.