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Judgment
S.N.Jha,C.J.
These Civil Second Appeals and the civil revision arising from different suits were made analogous as a common question was raised in each of
them. The validity of the decree/order has been questioned on the ground of competence of the court to entertain and decide the suits. It is said
that as the suits related to immovable property, the Court of Small Causes had no jurisdiction to entertain and decide the same. Such stand was
taken on the strength of a decision of learned Single Judge of this Court in State of Jammu and Kashmir through Chief Conservator of Forests Vs.
Pervez Ahmad, Civil Revision No. 116/97 disposed of on 13th February, 1998. Doubting correctness of the said decision, the appeals and the
revision were referred to Division Bench. Accordingly, they were listed before us for hearing on the limited point of jurisdiction of the trial court to
decide the suits.
Mr. M. A Qayoom, who led the arguments, submitted that under section 14 of the Small Causes Court Act, 1968 (1911 AD) a Court of Small
Causes is not competent to take cognizance of suits specified in Schedule II. He referred to Entry IV of II Schedule. Counsel submitted that under
section 29 of the said Act, a Small Causes Judge may be appointed as Judge of the Civil Court by the High Court but this can be done only by a
notification. No such notification was issued by the High Court appointing the Judge Incharge Small Causes Court, Srinagar, as Subordinate Judge
and, therefore, the decrees passed by are not only illegal and without jurisdiction, but null and void.
Mr. Z. A. Qureshi adopted the submission of Mr. Qayoom and further submitted that though under section 29 A of the Small Causes Court Act
a District Judge, a SubJudge or a Munsiff may also be vested with the powers of the Judge of the Small Causes Court by the High Court, the
provision has to be read with section 31 of the Act which provides that an ordinary civil court invested with the jurisdiction of a court of Small
Causes shall be deemed to be different courts. In other words, where a SubJudge or a Munsiff is vested with powers of a Small Causes Judge, he
comes to posses two distinct capacity those of ordinary civil court and court of small causes. In any case, even for investing with the powers of
civil court in the court of Small Causes in terms of section 29 A there has to be a notification. No such notification was ever issued.
Mr. R. A. Jan, appearing for the respondents submitted that the court which decided the suit is the court of Subordinate Judge, established
under section 13 of the Civil Courts Act 1977 (1920 AD). He pointed out that both under the Small Causes Courts Act and the Civil Courts Act,
the Judge Small Causes can be vested with the powers of the Judge of the civil court and, likewise, the Judge of the civil court can be vested with
the powers of Small Causes Judge by the High Court by in that behalf, and therefore, what may be relevant is whether Subordinate Judge was
vested with the powers of the Small Causes Judge because the courts are basically civil courts established under the Civil Courts Act. There may
be defect in the appointment as a Small Causes Judge because of absence of notification but there can be no defect in appointment of a
Subordinate Judge on account of absence of such notification. He referred to the relevant provisions which we shall immediately notice hereinafter.
Before we notice the provisions, we may state that though courts of Small Causes are also civil courts having jurisdiction, indeed, exclusive
jurisdiction, to try suits of civil nature upto certain value except of the types specified in the second schedule, they have a separate establishment
and a separate registry and ministerial staff. The District Judge has merely administrative control over court of Small Causes but no judicial control.
He can not withdraw or assign cases nor he has any appellate power except against an order under section 104 (1) clause (b) CPC. Subject to
revision by the High Court, its decisions are final. Besides these Small Causes Courts, they are ordinary civil courts established under the Civil
Courts Act. The High Court, however, may vest power of court of Small Causes in these courts and, similarly, vest court of Small Causes with the
powers of the civil court. However, notwithstanding such vesting of powers, they continue to have their original, distinct status or capacity as Civil
Court or court of Small Causes, as the case may be.
The relevant provisions of the Small Causes Court Act and the Civil Courts Act may be noticed at one place as under:
Small Causes Courts Act:
Judge. The Government may on the recommendation of the High Court appoint a Judge for the Court of Small Causes who shall be styled
Judge of the Small Causes Court.
Cognizance of suits by Courts of Small Causes. (1) A Court of Small Causes shall not take cognizance of the suits specified in the 2nd
Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that 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 five hundred rupees shall be cognizable by a Court of Small Causes.
(3) Subject as aforesaid, the High Court may by order in writing, direct that all suits of a civil nature of which the value does not exceed one
thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.
Exclusive jurisdiction of Courts of Small Causes. Save as expressly provided by this Act or by any other enactment for the time being in force,
a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the
Court of Small Causes by which the suit is triable.
Appeals from certain order of Court of Small Causes. Where an order specified in clause (h) or clause (b) of subsection (1) of section 104 of
the Code of Civil Procedure, 1977 is made by a Court of Small Causes, an appeal therefrom shall lie to the District Court, on any ground on
which an appeal from such order would (sic) under that section.
Revision of decrees and order of Courts of Small Causes. The High Court, for the purpose of satisfying itself that a decree or order made in
any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.
Saving of power to appoint Judge of Court of Small Causes to other Office
(1) Nothing in this Act shall be construed to prevent the High Court from appointing a person who is a Judge or Additional Judge of a Court of
Small Causes to be also a Judge of any other Civil Court or to (sic) be a Magistrate of any class or to hold any other public office.
(2) When a Judge or Additional Judge is so appointed, the ministerial officers of the Court shall, subject to any rules which the High Court may
make in this behalf, be deemed to be ministerial officers appointed to aid him in the discharge of the duties of the other office.
29A. Power of High Court. The High Court will be authorised to invest under this Act a District Judge, a SubJudge or a Munsiff with powers of a
Judge of Small Causes Court to hear suits triable by a Small Causes Court of the value which the High Court may deem proper and which will not
be more than five hundred rupees and to exercise such powers within such local limits as the High Court may fixed; the High Court may also
withdraw powers so conferred.
Schedule II:
Suits excepted from the cognizance of a Court of Small Causes.
a suit for the possession of immovable property or for the recovery of an interest in such property;
a suit for the partition of immovable property;
a suit by a mortgagee of immovable property for the foreclosure of the mortgage or the sale of the property, or by a mortgagor of immovable
property for the redemption of the mortgage;
a suit for the assessment, enhancement; abatement or apportionment of the rent of immovable property;
a suit for the recovery of rent, other than house rent unless the Judge of the Court of Small Causes has been expressly invested by the High
Court with authority to exercise jurisdiction with respect thereto;
a suit concerning the liability of land to be assessed to land revenue;
Civil Courts Act:
Classes of Courts. Besides the High Court, the Courts of Small Causes established under the Small Causes Court Act, and the Courts
established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely:
(1) The Court of the District Judge, also called the District Court;
(2) the Court of the Additional Judge;
(3) the Court of the Subordinate Judge; and
(4) the Court of the Munsiff.
Subordinate Judges. The Government may after consultation with the High Court fix the number of Subordinate Judges to be appointed and
when there is a vacancy in that number, may appoint such person as is recommended by the High Court to the said vacancy.
Power to invest Subordinate Judge and Munsiff with Small Causes Court jurisdiction and Small Cause Court Judge with ordinary jurisdiction.
(1)
The High Court may, by notification in the Government Gazette confer, within such local limits as it thinks fit, upon any Subordinate Judge or
Munsiff, the jurisdiction of a Judge of the Court of Small Causes under the Small Causes Court Act for the trial of suits cognizable by such Courts,
upto such value not exceeding five hundred rupees in the case of a Subordinate Judge or two hundred and fifty rupees in the case of a Munsiff, as it
thinks fit, and may withdraw any jurisdiction so concerned.
(2) The High Court may, by notification in the Government Gazette, confer within such local limits as it thinks fit on any Judge in charge of a Court
of Small Causes all or any of the powers conferrable on a Subordinate Judge or a Munsiff with respect to particular classes of suits or with respect
to suits generally in any local area.
Appeals from Subordinate Judges and Munsiffs (1) Save as aforesaid an appeal from a decree or order of a Subordinate Judge or a Munsiff
shall (sic) to the District Judge.
(2) Where the function of receiving any appeals which lie to the District Judge under subsection (1) has been assigned to an Additional Judge, the
appeals may be preferred to the Additional Judge.
(3) An appeal from the order of the District Judge on the appeal from the order of the Subordinate Judge or the Munsiff under subsection (1) shall
(sic) to the High Court if a further appeal from the order of the District Judge is allowed by the law for the time being in force.
From a reading of the afore quoted provisions it would appear that the Courts of Small Cause were established to decide suits of civil nature,
except those cognizance of which is barred provided its value does not exceeds Rs. Five hundred increasable upto Rs. thousand by the High Court
by order in writing. Though suits cognizable by Courts of Small Causes are to be decided as civil suit in the manner and as per the procedure
prescribed in the Code of Civil Procedure but not all provisions of the Code are applicable. Notably, no appeal against decisions of the Courts of
Small Causes lies except those falling within the ambit of clauses (b) (since deleted) or (h) of section 104 (1) of the Code of Civil Procedure,
though revision may lie to the High Court.
It is not necessary to refer to the rest of the provisions for the purpose of this reference. Suffice it to say that under section 29 of the Small
Causes Court Act the Judge Incharge of Court of Small Causes may be appointed as a Judge of Civil Court. Likewise, a Judge of the Civil Court,
namely, the District Judge, a SubJudge or a Munsiff may be vested with the powers of the Judge of Small Causes Court to hear suits triable by a
Small Causes Court under sections 29 and 29A respectively of the Small Causes Court Act. Analogous provisions are contained in section 24 of
the Civil Courts Act, under subsection (1) whereof a Subordinate Judge or Munsiff may be vested with the powers of the Small Causes Judge and
similarly a Judge Incharge of a Court of Small Causes may be vested with the powers of a Subordinate Judge or a Munsiff with respect to
particular types of suits or with respect to suits pertaining to a particular local area under subsection (2).
As a matter of fact, the whole dispute sought to be raised on behalf of the appellants/ petitioner seems to arise from the description of the trial
court as a ""Small Causes Judge"" in the cause title of the Judgments. It is not the case of the appellants/petitioner that the Officers presiding over the
trial courts are not Subordinate Judges within the meaning of the Civil Courts Act. Merely because they also happen to be the Courts of Small
Causes under the Small Causes Court Act, they are not denuded of jurisdiction to try suits relating to immovable property as civil courts under
Civil Courts Act. The question as to whether they have been vested with the powers of Courts of Small Causes whether under section 29 of the
Small Causes Court Act or section 24(2) of the Civil Courts Act may have relevance in a case where the suit is tried under the Small Causes Court
Act, but where the suits have been tried by the Subordinate Judge as Court established under the Civil Courts Act, no such notification vesting the
powers of Subordinate Judge as contemplated in section 29A or Section 24(1) is required. Such notification would be required only where a
Judge Incharge of a Court of Small Causes, appointed as such under the Small Causes Court Act, is to be vested with the power of the
Subordinate Judge. The entire controversy, in our opinion, is totally misconceived and devoid of any substance.
As a matter of fact, even if a notification were required, and found to be lacking, it would not affect the validity of judgments, decrees or orders
passed by them as held by the Supreme Court in Gokaraju Rangaraju Vs. State of Andhra Pradesh (1981) 3 SCC 132. Applying the de facto
doctrine, their Lordships observed as under:
A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his
appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and
acts done by him when he was clothed with powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced
and acts done by a Judge de jure. Such is the de factor doctrine, born of necessity and public policy to prevent needless confusion and endless
mischief.
These aspects of the case were not considered by the learned Single Judge in the case of State of Jammu and Kashmir Vs. Parvez Ahmad (supra).
In view of aforementioned provisions of the two Acts and the judgment of the Supreme Court, the decision cannot be said to be in accordance
with law and is fit to be over ruled.
Having thus rejected the submissions of the counsel for the appellants/petitioner, and upheld the competence of the trial court, we direct that
the appeals/revision may be listed for final hearing before the appropriate Bench.