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Judgment
This first appeal has been preferred against a judgment and decree dated 25th July, 1996 passed by the learned Judge, 4th Bench, Court of Small Causes at Calcutta in S.C.C. Suit No. 407 of 1991 thereby passing a money decree in favour of the plaintiff-respondent.
Being dissatisfied, the defendant has come up with the present appeal.
In our view, this appeal is not maintainable as the decree has been passed by the learned Judge, Presidency Small Causes Court in a suit which is cognizable by such Court.
Mr. Sanyal, the learned Advocate appearing on behalf of the appellant, however, draws our attention to Section 96(4) of the Code of Civil Procedure. According to the said provision, 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 Rs. 10,000/-.
By referring to the said provision, Mr. Sanyal contends that his client is entitled to prefer this appeal and can limit his argument on the question of law only by taking aid of Section 96(4) of the Code of Civil Procedure.
In our view, the aforesaid contention of Mr. Sanyal is not tenable in the eye of law for the following reasons:
It is well known that an appeal is a Creature of Statute and in the absence of statutory provision, no appeal is maintainable.
According to the Presidency Small Causes Courts Act, all money decree of the nature cognizable by the Presidency Small Causes Court and decided by such Court is final and no appeal lies against such decree. There is a similar provision also in the Provincial Small Causes Courts Act. However, Sub-section (4) of Section 96 of the Act has been introduced for the purpose of giving right of appeal against decree passed by an ordinary civil Court in respect of a suit which is of the "nature cognizable by Courts of Small Causes", but the plaint of which has been returned by the Court of Small Causes as the question of title is involved in such suit.
Therefore, if a suit of the nature cognizable by Courts of Small Causes is not decided by such Court in view of involvement of question of title and consequently, is returned to an ordinary civil Court for disposal, a decree passed by such ordinary civil Court in this type of suit is appealable in terms of Section 96(4) of the Act.
In the case before us, the plaint was not returned by the Court of Small Causes and the suit was decided by such Court. Therefore, Section 96(4) of the CPC has no application.
The use of the phrase "from a decree in any suit of the nature cognizable by Courts of Small Causes" itself signifies that if a decree is passed by the Court of Small Causes without returning the plaint, there is no scope of appeal and for that reason the legislature has not used the phrase "from a decree of any suit passed by Courts of Small Causes.
We, thus, find that the present appeal is not maintainable against the decree passed by the Presidency Small Causes Courts Act.
The appeal is, thus, disposed of with the aforesaid observations.
We make it clear that we have not otherwise gone into merit."
In view of disposal of the appeal itself, the connected application being C.A.N. 10304 of 2008 has become infructuous and the same is disposed of accordingly.
Let the certified copies of the judgment and decree passed by the learned Judge be returned to the learned Advocate for the appellant on furnishing a xerox copy thereof.
Xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.