Satish Chandra, C.J:— In these three cases, the trial court recorded certain findings on questions of fact. The trial courts' judgment was taken up in revision under section 25 of the Provincial Small Cause Courts Act. The revision all Court found that the findings of the trial court were vitiated by some error of law, or were not quite correct. It then proceeded to reappraise and reassess the evidence for itself and recorded a finding on the same questions of fact. It arrived at a different conclusion. The trial court' decree was reversed. The losing party came to the High Court in revision under Section 115 of the Code of Civil Procedure. One of the submissions was that under Section 25 aforesaid, the court and no jurisdiction to reassess the evidence for itself. It is found that the trial courts' findings were vitiated by some error of law it could send the case back after laying own proper legal guidelines. In support, reliance was placed upon a decision of the learned Single Judge in Muneshwar Das Jain v. Prayag Narain Gaur, 1979 (UP) RCC 301. The learned Single Judge felt that the decision in Muneshwar Das Jain's case requires reconsideration. He accordingly referred the following question of law for decision by a larger Bench:—
“Whether under section 25 of the Provincial Small Cause Courts Act a revisional court can pass a suitable decree in a case on a consideration of the evidence on record, if it finds that the findings recorded by the trial court were vitiated by an error of law, or can it only remand the case for a fresh trial?”
2. Section 25 provides for a revision against the orders of the court of Small Causes. It provides:
“25. Revision of decrees and others 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 orders with respect there to as it thinks fit.”
3. This provision confers a supervisory and not an appellate power. The record can be called for seeing that the decree is according to law. If it is not, the revisional court can pass such orders with respect thereto as it may think fit. This power is conditional on the revisional court finding that the decree or order sought to be revised was not according to law. The phrase ‘pass such orders with respect thereto as it thinks fit’ has come up for consideration before the Supreme Court in several decisions. In Arbind Kumar Singh v. Nand Kishore Prasad, AIR 1968 SC 1227, it was held that the clause was wide enough to give power to the revisional court to admit additional evidence. In Manganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1979 SC 37 it was held that the expression authorised the revisional court to issue directions to the parties to the case. In the State of Kerala v. K.M Charia Abdulla, AIR 1965 SC 1585 it was observed that the revisional court has power to pass such orders for rectifying the defect as the revisional court considers, in the circumstances of the case, just and proper. On the other hand, the phrase ‘according to law’ occurring in Sec. 25 ‘aforesaid, was considered by the Supreme Court in Hari Shanker v. Rao Girdhari Lal Chaudhary, AIR 1963 SC 696 it was held that the phrase ‘according to law’ refers to the decision as a whole and is not to be equated to error of law or of fact simpliciter. The over-all decision must be-according to law, i.e there should be no miscarriage of justice due to a mistake of law. The Court approved the observations of Beaumont, C.J in Belland Co. Ltd. v. Waman Ramraj, AIR 1938 Bom. 223 where the learned Chief Justice had given some instances in which the court could interfere under Section 25. They were where the court had no jurisdiction in the matter, where a party had not been given a proper opportunity of being heard, or that the burden of proof had been misplaced on wrong shoulders or where the court had based its decision on evidence which should not have been admitted. The court can interfere where it comes to the conclusion that there has not been a proper trial according to law. It was observed:—
“But, in my opinion, that the court ought not to interfere purely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.”
4. Considering the phrase ‘according to law’ occurring in the first proviso to Section 75(1) of the Provincial Insolvency Act, the Supreme Court in Malini Ayyappa Naicker v. Seth Manghraj Udhavdas firm, (1969) 1 SCC 688 : AIR 1969 SC 1344 observed that while exercising that power, the High Court is by and large bound by the findings of fact reached by the district court. If the legislature intended to confer power on it to re-examine both questions of law and fact, it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law. The court has no power to de novo examine the findings of fact reached by the trial court. To the same effect are several decisions of this court. In Ram Narain v. Kanhaiya Lal Vishwakarma, 1965 AWR 645, a Division Bench held that under Section 25, the revisional court is not empowered to look into the evidence of the case and to decide whether a finding of fact arrived at by the court below is justified by the evidence on record or not. Several Single Judge decisions, 1977 AWC 545 and 1978 AWC (J) 78 are also of the same opinion.
5. The question of power and procedure of Courts is primarily liable to be determined by the provisions of the constating instrument. The Provincial Small Cause Courts Act, 1887 constitutes small causes courts as courts of exclusive but limited jurisdiction. The class of suits not cognizable by the Courts of Small Causes is listed in the schedule appended to that Act. The procedure for trial in a Small Causes Court and the powers of the court of Revision are given in the Code of Civil Procedure.
6. Section 7 of the Code of Civil Procedure gives a list of provisions which do not extend to courts constituted under the Provincial Small Cause Courts Act. It provides:—
7. Orders L of the Code excludes certain provisions of the Schedule appended to the Code of Civil Procedure from the purview of the Small Causes Courts. It provides:—
8. Order XX rule 4 Civil Procedure Code provides that judgment of small cause courts need not contain more than the points for determination and the decision thereon. For the regular civil courts, sub-clause (2) of rule 4 aforesaid provides that judgments shall contain a concise statement of the case, the points for determination, the decisions thereon and the reasons for such decision. It is evident that a judgment of a Small Causes Court need not contain a statement of the case or even the reasons for the decision on the points arising for determination.
9. It will be seen that Order L of the Code excludes the provisions of the Shedule relating to settlement of issues and of Order II, Rule 3 for record of examination of parties, and also Order XVIII, rules 5 to 12 which lay down the procedure for recording of evidence. The position is that the court of Small Causes need not settle issues or even record the evidence as is done in the regular courts. Order XVIII, rule 13 provides for the recording of a memorandum of the substance of the deposition. This provision applies to the court of Small Causes. They are to record only a substance of the deposition of witnesses. Their judgment may contain only the points for determination and the actual decision thereon without giving the reasons. It is evident that the trial in a Court of Small Causes is summary. Its decision is made final subject only to a revision under Section 25.
10. Section 7 CPC excludes the applicability of Sections 96 and 112 and 115 of the Code of Small Causes Courts. Section 103 CPC which is one of the excluded provisions, states:—
“103. In any second appeal, the High Court may if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of Section 100.”
11. In view of this provision, the High Court can in a second appeal determine an issue of fact.
12. This provision has a remarkable history. In the Code of Civil Procedure, 1882, Section 587 occurring in Chapter 42 provided that the provisions contained in Chapter 41 shall apply “as far as may be” to appeals under this chapter and to the execution of decrees passed in such appeals. Chapter 42 related to second appeals which lay to the High Court. Sec. 565 was the predecessor of the present Sec. 103. It, in substance, provided that when evidence on record is sufficient the appellate court may determine the case finally after settling the issues, if necessary. Under it, the appellate court was empowered to decide the issues of fact also. Question arose whether in a second appeal the High Court had power to decide issues of fact for itself. In Bal Kishan v. Jasoda Kaur, ILR 7 Alld. 765 the Full Bench decided that the High Court could determine issues of fact where the courts below have not determined certain issues which ought to have been. The same controversy was again referred to a Full Bench in Deo Kishan v. Bansi, ILR 8 Alld 172 which affirmed the decision in Bal Kishan's case. Shortly after the matter was again raked up in Girdhari lal v. Crawford, ILR 9 Alld. 147. It was argued that the High Court is not competent to decide issues of fact. It could only refer them to the lower appellate court. The Division Bench referred to a Full Bench the question whether, with reference to the decisions of the Full Bench in Bal Kishan v. Jasoda Kaur and Deo Kishan v. Bansi (supra) the Division Bench is competent to refer to the lower appellate court issues of fact for decision in this case, or is bound to determine the same on the evidence on the record. The 5 Judges Full Bench overruled the earlier Full Bench decisions and held that this court is at liberty to remit issues for determination by the courts below. It was held that the provisions of chapter 41 are by Section 587 to be applied only to second appeals ‘as far as may be’. These words mean that so far as may be consistent with chapter 42 specifying the grounds on which second appeals lie to the High Court. Looking to the provisions of chapter 42, the High Court sitting as a court of second appeal, should not determine questions of fact on the evidence vide the grounds mentioned in section 584. Since those are the only grounds which can be taken in a second appeal, it was not contemplated that after an appeal has been admitted on such grounds, the whole case was open to as to enable the High Court to constitute itself as a court of first appeal.
13. It was in this state of affairs that section 103 was enacted in the present Code of 1908. It expressly enables the High Court to determine an issue of fact itself rather than remand matters in such cases.
14. The question is what is the effect of exclusion of section 103 from the purview of the prescribed powers and procedure for revisions under sec. 25 of the Small Cause Courts Act. The answer is evident. The court exercising revisional power under Section 25 does not possess jurisdiction to determine issues of fact itself, by entering into the evidence and assessing it.
15. This aspect makes the Full Bench decision of this court in Maulvi Muhammad v. Syed Husain, ILR (3) Alld. 203, distinguishable. In that case, the Full Bench was considering the scope of the phrase ‘may call for the record of the case and pass such orders with respect thereto as it thinks fit’ occurring in Section 622 of this Act corresponding to the present section 115 CPC. It was held that under it, the court had power to pass all orders which it can pass in second appeals. In second appeals, the court can, in given circumstances, determine the question of fact. As already seen, a court acting under Section 25 of the Provincial Small Causes Courts Act has no such power. The power to determine question of fact has been expressly taken away.
16. Our attention was invited to Bombay High Courts' decison in Behram Kaikrushru Irani v. Ardeshir Kavasji, ILR (24) Bom. 563 That was a case under the Presidency Small Cause Courts Act. The Court was interpreting Sections 9 and 38 of that Act. It was held that the rules framed under Section 9 of the Act which included the long practice in the High Court enabling the High Court to reappraise the evidence in a revision under Section 38 of the Presidency Small Cause Courts Act. The case turned on interpretation of the rule making power of the High Court which governed the procedure in revisions. There is no comparative provisions under the Provincial Small Cause Courts Act. The case is clearly distinguishable.
17. The court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker’ case (supra) that a wrong decision on fact is also a decision according to law.
18. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision.
19. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact.
20. Our answer to the question referred to us is that, in the stated circumstances, the revisional Court has no power to consider the evidence for itself in order to determine an issue of fact. The proper course is to remand the case to the trial court. Let the papers be laid before the learned Single Judge with this opinion and answer.
K.J.C
21. Question answered.
Provincial Small Cause Courts Act.