1. The Appellant/Original plaintiff has filed this Appeal Against Order under Order 43, Rule 1(c) of Civil Procedure Code, challenging the order dated 27-10-2004, passed in Misc. Judicial Case No. 5/2003, by the Additional Judge, Small Causes Court, Nagpur. It appears that the appellant had filed Regular Civil Suit No. 111/1998, against the present respondent for recovery of Rs. 18,925/- in respect of alleged excess payment of rent by the respondent. It appears that the said suit was dismissed in default by order dated 3-1-2003 and Misc. Judicial Case No. 5/2003 was moved by the appellant for its restoration. The learned Additional Judge, Small Causes Court, Nagpur found that the said suit was adjourned for more than 22 occasions in a period of about 26 months, and it further found that the story pleaded in the application for restoration was not supported by oral evidence, and it found that during the oral evidence present appellant has improved his case. It further found that in the cross examination the counsel for the landlord has succeeded in bringing out the truth. This order has been challenged in the present appeal against Order.
2. Advocate V.V Bhangde, appearing for the appellant has contended that, appreciation of evidence by the learned Small Causes Court is totally erroneous and unsustainable. He contends that the appellant was the plaintiff and he would not have benefited by permitting his suit to be dismissed in default. He further states that the reason given is incorrect and the suit needs to be restored back to file.
3. Advocate Markandeywar, appearing for the respondent/original defendant has denied the above arguments. It is the contention that the appellant is deliberately delaying the decision in his suit i.e R.C.S No. 111/1998. He raised a preliminary objection which is to the effect that, the present appeal must be filed before the District Court, in view of the provisions of section 26 of the Provincial Small Causes Court Act. He further contends that even otherwise as the appeal against such order or proceeding before the Small Causes Court lie to the District Court, in view of section 26A of the Provincial Small Causes Court Act, the appeal ought to have been filed before the District Court. He has relied upon the judgment of this Court reported at 1996 (1) Mh. L.J 184 in support of his contention.
4. As against this Advocate Bhangde, who appears for appellant contended that Section 26A contemplates appeal against effective adjudication only and as the suit has been dismissed in default and its restoration has been refused there is no effective adjudication of its between the parties, therefore, section 26-A has no application. He invited the attention of this Court to the ruling reported in AIR 1950 Bom 355, AIR 1962 Bom. 241 and a recent ruling of this Court reported in 2004 (4) Mh. L.J 1006. He contends that if the order is only procedural appeal under section 26A is not maintainable.
5. Perusal of the rulings on which reliance has been placed by the Advocate Bhangde reveals that in AIR 1950 Bom 355, the Division Bench of this Court was considering Clause 15 of the Letters Patent Act and said clause used the word “Judgment”. The question which was involved before the Division Bench, was whether the order dismissing the suit in default is Judgment. This issue has been considered by the Hon'ble Division Bench in paragraph No. 2 and it has been held that no appeal lies under clause 15 of the Letters Patent Appeal from an order made by the court under Order 9, Rule 8. The reasoning given is that such order does affect the merits of the case by determining the rights or liabilities by the parties. Relevant observations in this respect as contained in paragraph No. 2 are as under:
“2. Now Mr. Manecksha has raised a preliminary point that no appeal lies from this order of the learned Judge. We have to be satisfied that the order passed by the learned Judge is a judgment within the meaning of Cl. 15 of the Letters Patent. What the learned Judge did was to act under the provisions of Order 9, Rule 8. That rule makes it incumbent upon the Court to dismiss a plaintiffs suit when the plaintiff does not appear at the hearing. It is a dismissal which is for default of appearance or non-prosecution and Rule 9 of that order gives a remedy to the plaintiff whose suit has been dismissed for default and that remedy is that he can apply to the Court to set aside the dismissal and if he satisfies the Court that there was sufficient cause for his non-appearance then the Court may set aside the dismissal. Under the Code no appeal lies from an order made under Order 9, Rule 8. No appeal also lies if the Court under Order 9, Rule 9 set asides the order of dismissal. But an appeal lies if the Court refused to set aside the dismissal. The question is whether an appeal lies under clause 15 of the Letters Patent from an order made by a Court under Order 9, Rule 8. In our opinion no such appeal lies because no order is made by the Court under Order 9, Rule 8 which affects the merits of the case by determining rights or liabilities between the parties. All that a Court or a Judge does under Order 9 Rule 8 is to give effect to the provision of the law which requires him to dismiss a suit when the plaintiff is absent. He does not judicially determine the right or merits of the questions before him. His dismissal is not based upon the consideration that the plaintiff's suit is bad or that the plaintiff is bound to fail on the merits of the case. It is merely because the plaintiff is not present at the date of hearing that the Court dismisses the suit and therefore, it is clear that such a dismissal is not a judgment within the meaning of cl. 15 of the Letters Patent. The law gives the plaintiff an adequate remedy, as I have pointed out under Order 9, Rule 9 and that is the only remedy which the plaintiff has whose suit has been dismissed for default.”
6. It is thus clear that, such decision is not a judgment within the meaning of clause 15 of the Letters Patent. Full Bench of this High Court in AIR 1962 Bom. 241, was considering the provisions of Order 9 Rule 13 to find out whether order setting aside ex parte decree is judgment under clause 15 or not, and the Full Bench has recorded a finding that order setting aside the decree under Order 9 Rule 13 is not a judgment within the meaning of clause 15 of the Letters Patent. The reasoning given is that a judgment means decision which affect the merits of the question between the parties by determining some rights or liabilities. The latest ruling on which reliance has been placed by Advocate Bhangde, as reported in 2004 (4) Mh. L.J 1006. There the Division Bench was considering the provision of section 20(1) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and it has been observed that mere procedural orders are not the orders which can be taken up and challenged under section 20(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Unless the orders formally adjudicate and affect the rights of the parties the remedy of an appeal under section 20(1) will not be available and said section does not contemplates an appeal against the order which is merely a procedural order. It is to be noticed that section 20 provides for an appeal by a person aggrieved by the order or deemed to have been made by the Tribunal under the Recovery of Debts Due to Bank and Financial Institutions Act, 1993. It appears that the D.R.T Pune allowed the petitioner to lead secondary evidence by its order dated 16-6-2003 and the said order was challenged before the Debt Recovery Appellate Tribunal and the Debt Recovery Appellate Tribunal was pleased to allow the said appeal. The Bank therefore approached the High Court in Writ Petition. The High Court quashed and set aside the order of the appellate Tribunal holding that the appeal was not maintainable.
7. In this background when provisions of section 26-A of Provincial Small Causes Court Act are looked into, the provision of sub-section (1) thereof provides for appeal from decree or order made by the Court of Small Causes. Thus the said sub-section uses both the words namely “Decree” and “Order” and therefore, the above referred ruling of the Division Bench of this Court which considers section 20 of the Recovery of Debts Act, which uses only the words “Order” has no application in the facts and circumstances of case. Section 26-A expressly provides an appeal against the decree and appeal against an order. There is no scope for interpreting the word “Order” which is used along with the word Decree in this section 26A in narrow sense. The above referred earlier ruling of this Court reported in AIR 1950 Bom. 355 or the Full Bench ruling have considered the scope of the term “Judgment” occurring in clause 15 of the Letters Patent, and therefore, the said ruling also does not have application in the facts and circumstances of the case. Though the orders passed by the Civil Court, under the provisions of Order 9 Rule 8 or Order 9 Rule 13 may be treated as not Judgment, still it cannot be said that section 26-A(1) of Provincial Small Causes Court Act, does not contemplate or permit appeal against such order.
8. Advocate Markandeywar, appearing for the respondent-landlord, has placed reliance upon the judgment of this court reported in 1996 (1) Mh. L.J 184. This Judgment considers the provisions of section 26-A(1) and specifically states that the appeal under clause 26-A(1) shall lie not only against final judgment but also against interim order. The relevant observations in paragraph 5 of this judgment, wherein the learned Single Judge of this Court has observed that “In every small cause suit, a decree is drawn at the time of disposal of the suit and, therefore, if the legislature intended that there should not be an appeal in respect of any interim order, it would have provided that an appeal shall lie from a decree passed by the Small Causes Court under section 26 to the District Court but the Legislature has specifically mentioned both the terms i.e the decree or the order meaning thereby that even if there is no decree an appeal would lie against the order. This ruling thus specifically considers the issue which is involved in this Appeal against Order and it also considers the provisions of section 26A(1) of Provincial Small Causes Courts Act. This ruling therefore, concludes the issue and objection raised by Advocate Markandeywar will have to be upheld.
9. Under section 26A of the Provincial Small Cause Courts Act, appeal is provided to the District Court. Section 104 of Civil Procedure Code under which this Appeal against Order is filed in the High Court, provides for orders from which appeal lies and section 106 prescribes the Courts for hearing such appeal. Said section 106 of the Civil Procedure Code specifically stipulates that such appeal against order shall lie to the court to which an appeal would lie from the decree in the suit, in which such order was made. Thus, in view of this the requirement of section 106 Civil Procedure Code also it is clear that the appeal against Order will lie only before the District Court to which the appeal against decree passed by the Small Causes Court lies. Therefore, even if objection of Advocate Markandeywar are overlooked, still the appeal will have to be filed before the District Court.
10. In this view of the matter, the appeal as filed here is not maintainable the same is accordingly dismissed, with no order as to costs. Certified copy expedited.
Appeal dismissed.
Order 9, Rule 8