Notes on Presidency Small Cause court Act 1882

https://drive.google.com/file/d/1B9ta-TijBfXqDBJ4cCvkZ9jOnYDsW1wv/view?usp=sharing

27. Decree-holder to accompany officer executing warrant.—Whenever the Small Cause Court issues a warrant for the arrest of a judgment-debtor or the attachment of his property, the decree-holder, or some other person on his behalf, shall accompany the officer of the Court entrusted with the execution of such warrant, and shall point out to such officer the judgment-debtor or the property to be attached, as the case may be.

31. Execution of decree of Small Cause Court by other Courts.—If the judgment-debtor under any decree of the Small Cause Court has not, within the local limits of its jurisdiction, movable property sufficient to satisfy the decree, the Court may, on the application of the decree-holder, send the decree for execution—

(a) in the case of execution against immovable property situate within such local limits— [to the Madras City Civil Court or the High Court of Judicature at Fort William or Bombay, as the case may be];

(b) in all other cases—to any Civil Court within the local limits of whose jurisdiction such judgment-debtor, or any movable or immovable property of such judgment-debtor, may be found.

Procedure when decree transferred.—The procedure prescribed by the Code of Civil Procedure (14 of 1882) for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases.

Print Page

Whether Chief Judge Small causes court has jurisdiction to transfer case from one court to another?

Whether the Chief Judge of the Small Causes Court could have allowed the Transfer Application No. 294 of 2014 by transferring the proceedings from one Court to another Court in the Small Causes Court. In so far as the powers of the Learned Chief Judge of the Small Causes Court are concerned, they are circumscribed by Section 10 of the PSCC Act, 1882. The said Section 10 of the PSCC Act, 1882 for the sake of ready reference can be gainfully reproduced hereinunder:--

"Subject to such rules, the Chief Judge may, from time to time, make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof."

A reading of the said Section 10, therefore, discloses that the provision confers upon the Learned Chief Judge of the Small Causes Court an administrative power to make arrangements as he thinks fit for the distribution of the business of the Court amongst the various Judges therein. Now, coming to Section 24 of the CPC, the said provision confers a power to transfer any suit, appeal or other proceedings of the High Court or the District Court either sou-moto or on an application made by any of the parties. The power is therefore, conferred by the said provision is on the High Court or the District Court and the mention of the Chief Judge of the Small Causes Court is conspicuously absent. In view of the fact that the powers under Section 24 of the CPC have not been conferred upon the Chief Judge of the Small Causes Court, the power if any that can be exercised by the Chief Judge of the Small Causes Court is therefore, only under Section 10 of the PSCC Act, 1882. A similar situation had arisen in Smt. Manharbala's case (supra), wherein a party had applied for transfer of the proceedings from one Court to another Court in the Small Causes Court on the ground that the Learned Judge before whom the suit was pending was biased. The said application was allowed by the Learned Chief Judge of the Small Causes Court as a consequence of which a matter had reached this Court by way of Civil Revision Application No. 1405 of 2000. The Learned Single Judge of this Court as indicated above on the touchstone of the provisions of Section 10 of the PSCC Act, 1882 and Section 24 of the CPC came to a conclusion that the Chief Judge of the Small Causes Court is not vested with the power to transfer proceedings from one Court to another Court and that the said power is only vested with the High Court or the District Court. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 11033 of 2014

Decided On: 24.11.2015

 Dadajee Dhackjee & Co. Ltd. Vs. Neelam V. Rajani and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

Citation: 2016(5) Bom CR 442

Print Page

Whether licensee can be directed to deposit licence fee during eviction proceeding?

This decision was expressly overruled by the Division Bench which held that the court had such a power under Section 151, Civil P.C. The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and occupation of their premises while the landlord is required to meet his responsibilities and liabilities. The process of the court over which neither the landlord nor the tenant defendant has any control cannot be allowed to be abused and work to the detriment of a person. If it is capable of resulting in harm, then the Courts are not powerless to make orders so as to mitigate that harm. By parity of reasoning, in cases between a licensor and licensee also a similar order can be passed. Such orders as between a lessor and lessee are now expressly permitted under Order XVA, Civil P.C. By analogy, similar orders can be passed in cases between licensor and licensee also.

15. Learned Judges of the Division Bench in the above case also relied upon Order XXXIX, Rule 10, Civil P.C. in support of their decision. They held that in the case of a landlord and tenant, the tenant cannot dispute his liability to pay the rent to the landlord although the quantum of such rent may be in dispute. The Division Bench held that in such cases the tenant, in fact, is deemed to admit that some money is due to the plaintiff. In such a situation the court can direct the tenant to deposit such amount as the court may deem fit under Order XXXIX Rule 10. The same reasoning applies to a case between licensor and licensee also. The licensee can be similarly directed to deposit certain amounts in respect of licence fees or mesne profits under the provisions of Order XXXIX Rule 10 in view of the Division Bench of this court in the above case.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

Print Page

Whether small causes court Act has power to review its own order?

Section 42 provides for appeals. Section 43 provides -

"In all suits, appeals and proceedings under this Chapter, the Small Cause Court shall, as far as possible and except as herein otherwise provided, follow the procedure prescribed by the Code of Civil Procedure, 1908."

13. Section 43, however, will have to be read along with Section 9 of the Act which confers power on the High Court to frame rules or procedure to be observed by the Small Causes Court and as mentioned above the provisions in the Code relating to the review have been expressly omitted so far as the suits and proceedings in the Small Cause Courts are concerned. The net result is that neither under the Rent Act nor under the Rules framed thereunder nor under the Presidency Small Cause Courts Act or the Rules framed thereunder is there a provision conferring the power of review on the Small Cause Courts in the proceedings under the Rent Act. As held by the Supreme Court the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The provisions discussed above rule out any such power being conferred even by implication.

IN THE HIGH COURT OF BOMBAY

Civil Revision No. 461 of 1982

Decided On: 01.02.1985

National Hotel (Firm), Bombay and Ors. Vs. Rukaiyabai and Ors.

Hon'ble Judges/Coram:

P.S. Shah, J.

Citation: 1985 MHLJ 353

Print Page