1. Leave granted
2. The appellant claimed to be the owner of 'Gher' (property in dispute) in the town of Shameili and in the capacity, according to him, he had let out the property to one Habib as long ago as in 1966. He had filed suit No. 591 of 1966 against Habib for recovery of rent and the suit was decreed. According to the appellant, Habib sublet the property to one Banda. In 1974, the appellant filed a suit for eviction of both Habib and the sub-tenant Banda in the Court of Small causes. This suit was decreed against both Habib and Banda
3. Thereafter, Banda, filed an application for setting aside the said decree. His application was dismissed. The revision filed by him before the Additional District Judge was also dismissed on September 26, 1977. Thus, according to the appellant, the eviction decree against both Habib and Banda became final on that date
4. However, Banda filed the present suit on the basis of his title as the owner of the property which has given rise to the present appeal. In the suit, he claimed two reliefs, viz., that the decree passed by the Small Cause Court in Suit. No. 45. of 1974 was nullity, and an injunction restraining the defendant in the suit, namely, Rameshwar Dayal, the present appellant, from dispossessing him of the property. The trail court dismissed the suit on May, 1979 by recording a finding that plaintiff Banda was not the owner but it was the appellant before us, viz., Rameshwar Dayal who was its owner. In support of its conclusion, the trail court relied on a registered rent deed dated December 7, 1956 under which the present appellant had let out the property in dispute to some other tenant, earlier
5. The judgment of the trail court was set aside in appeal by the Civil Judge, District Muzaffarnagar by his decision dated December 13, 1985 the effect of which was to decree the suit filed by the respondent Banda. The second appeal filed by the appellant was dismissed by the High Court by the impugned order
6. Two contentions were raised before us by Shri Shanti Bhushan, the learned counsel appearing for the appellant. The first was that the decree passed by a court of competent jurisdiction could not be declared as not binding on a person who was party to the suit, and the second was that the view taken by the lower appellate court that the judgment of the Small Cause Court did not operate as res judicata between the parties because the Small Cause Court had no jurisdiction to decide the title to the suit property, is erroneous in law
7. In support of his contentions, Shri Shanti Bhushan relied upon Mohammed Fasi v. Abdul Qyayum 1978 AIR(All) 470: 1978 AWC 547]; Alimuddin v. Mohammad Ishak 1974 AIR(Raj) 170 : 1974 Raj LW 47]; Ata Mohammad v. Ghera 1962 AIR(HP) 17]; Nongthombam Mani Singh v. Puyam Chand Mohan Singh 1959 AIR(Mani) 14]; Labhu Ram v. Mool Chand 1921 AIR(Lah) 91 : 60 IC 319 : 3 LLJ 335]; Ganga Prasad v. Nandu Ram 1916 AIR(Pat) 75 : 37 IC 129 :20 CWN 1080] and Qaisari Begum (Smt) v. Munney [ 1981 (1) RCJ 549 : 1981 AREC 291 (All)] which is decision of the Allahabad High Court
8. As against the aforesaid decisions, the learned counsel Shri P. P. Rao appearing for the respondent has relied upon two decisions, viz., Gangabai v. Chhabubai and Richpal Singh v. Dalip
9. In order to appreciate the rival contentions, it is first necessary to reproduce Section 23 of the Provincial Small Cause Court Act (hereinafter referred to as the 'Act')
"23, Return of plaints in suits involving questions of title - (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a causes of a nature like to that of defect of jurisdiction."
10. It is sought to be argued before us on the basis of the aforesaid provisions of Section 23, that it is not obligatory on the Small Cause Court to refer the issue of title to immovable property to a court having jurisdiction to determine such title. The expression "The Court may at any stage of the proceedings..." suggests that an option is given to the Small Cause Court to use its discretion whether it would proceed to decide the title itself or refer the question to the court having jurisdiction to do so. According to us, in the facts of the present case, it is not necessary to go into the question since the decision of the Small Cause Court nowhere indicates that he court had used any such discretion, even assuming that it is the discretion of the court to refer or not the question, the court of competent jurisdiction. The decision which is contained in two paragraphs only, reads as follows
"This suit is for ejectment of the defendant from a Gher (House) as per details given at the foot of the plaint as well as for the recover of Rs. 1756.50 towards rent at Rs. 50 a month with effect from June 7, 1974 up to date of delivery of possession. The defendant did not turn up to contest the suit on the date fixed for hearing. Hence, the case proceeded ex parte against him. The plaintiff has proved his cases by adducing necessary evidence
The suit is ex parte decreed with costs for the ejectment of the defendants from the suit property as well as for the recover of Rs. 1756.50 as prayed. The plaintiff shall further be entitled to recover mesne profits with effect from June 7, 1974 up to the date of delivery of possession as permitted by law at Rs. 50 a month on paying the requisite court fees on the execution side." *
11. In order to appreciate what the Small Cause Court has and has not done, it is necessary to remember that in that suit the present appellant was the plaintiff and both Habib and the present respondent Banda were defendants 1 and 2 respectively. It is not disputed that the present respondent had filed his written statement, and had in terms contended that he was the owner of the property in question being in possession of the same since the time of his ancestors, and he had not been living in the property as sub-tenant. However, the aforesaid so-called decision of the Small Cause Court does not refer to the present respondent or to the written statement filed by him and the plea taken by him in the said written statement. It only States that "the suit is for ejectment of the defendant (not defendants) as per the details given at the food of the plaint as well as for the recover of Rs. 1756.50 towards rent etc. etc... "It also says that "the defendant (not defendants) did not turn up to contest the suit... hence the case proceeded expert against him (not them)". Then it proceeds to state that plaintiff has proved his case by adducing necessary evidence
12. In the second paragraph, the decision says that "the suit is ex parte decreed with costs for the ejectment of the defendants from the suit property..."
13. It is, therefore, obvious that the Small Cause Court proceeded to dispose of the suit as if what mattered in the suit was only the presence or absence of the defendant Habib. It did not take any cognizance of the present respondent's presence or absence, and of the written statement filed by him. Had it taken cognizance of the written statement, it would have become obligatory on its part to set down the points for determination. Had it further itself decided to proceed with adjudication of the title instead of referring it to the court of competent jurisdiction, it could have done so after stating the points for determination. What is more, the court had to given its decision on the point. The small Cause Court did neither. In fact, as is clear from the so-called decision the whole of which is reproduced above, there is no reference to the written statement or to the question of title to the suit property raised, therein nor is there a decision on the point even remotely, not to say incidentally
14. In circumstances, the controversy raised before us as to whether the Small Cause Court is under an obligation or not to refer the issue with regard to the title to the property to a court of competent jurisdiction and whether the bar of res judicata would apply to the present suit brought to establish title to the property, is purely academic. It would be a travesty of justice to hold hat by the above order the Small Cause Court had even incidentally decided the issue with regard to the title which fell for determination directly and substantially in the subsequent suit which has led to the present appeal
15. We are, therefore, more than satisfied that the bar of res judicata is not applicable to the determination of the issue with regard to the title to the property in the present suit. It is for these reasons that we do not think it necessary to discuss in detail the decision cited on both sides. However, we may refer to a decision of this Court-Gangabai v. Chhabubai which has a direct bearing on the question as to when a finding on the question of title to immovable property rendered by a small Cause Court would operate as res judicata. After discussing various decisions on the point, this court has held there as follows
"When a finding as to tile to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest immovable property. In order to operate as res judicata the finding must be one disposing of a matte directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collateral or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. A question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised." *
This is a sufficient answer to the contention that when Small Cause Court incidentally determines the question of title, it operates as res judicata. The contention ignores that to operate as res judicata the first finding must be on an issue which has been directly and substantially in issue in the former suit. If the finding is given incidentally while determining another issue which was directly and substantially in issue, such finding cannot be said to be on an issue which was directly and substantially in issue in the former suit. However, it is not necessary for us to discuss this point at length since we have come to the conclusion that not only the Small Cause Court has not given any finding on the issue even incidentally, it has not even referred to the said issue in its so-called decision
16. The next question is whether the decision of the Small Cause Court is binding on the respondent-Banda. In order to be binding, the order of the court disposing of the suit must amount to a decree. Section 2(2) of Code of Civil Procedure (the 'Code') defines decree as follows
"(2) 'Decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final..." *
17. The definition of 'Order' given in Section 2(14) of the Code is as follows
"(14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree."
However, neither the order nor the decree should be confused with 'Judgment' which is defined by Section 2(9) of the Code as "the Statement given by the Judge of the grounds of a decree or order".
The definitions of decree, order and judgment given in the Code show that decree or order as the case may be, can come into existence only if there is an adjudication the relevant issues, which conclusively determines the rights of the parties
18. We have already pointed out earlier that the Small Cause Court has not even noticed the matters in controversy between the appellant and the respondent, and consequently, there has been no adjudication or decision on the said matters. There is thus no "formal expression of adjudication... conclusively determining the rights of the parties with regard to... the matters in controversy in the suit"
19. It must be remembered in this connection that Rules 4(1) and 5 of Order 20 of the Code are applicable to the judgments of the Small Causes Court. The Rules are as follows
"4. Judgments of Small Cause Courts-(1) Judgments of a Court of Small Causes need contain more than the points for determination and the decision thereon
(2) Judgments of other Courts. - Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision
5. Court to state its decision on each issue-In suits in which is sues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit." *
"Points for determination" referred to in Rule 4(2) are obviously nothing but "issues" contemplated by Rules 1 and 3 of Order 14 of the Code. The present decision of the Small Cause Court which has not even stated the points for determination and given finding thereon, is obviously not a judgment within the meaning of Section 2(9) of the Code. Since the matters were in controversy between the parties, it is only judgment which could have given rise to a decree. The so-called decision of the Small Cause Court, therefore, does not amount to a decree within the meaning of Section 2(2) read with Section 2(9) and Rules 4(1) and 5 of Order 20 of the Code".
20. It is not disputed that in view of the provisions of Section 17(1) of the Provincial Small Cause Court Act, the Code is applicable to Small Cause Court except where it is otherwise provided either by the Code or the said Act. Apart from Rules 4(1) and 5 of Order 20 of the Code, on this count also, it was obligatory for the Small Cause Court, in the present case, to state the points for determination and give its finding or decision on each of the points for determination and give its finding or decision on each of the said points. Hence the present decision of the Small Cause Court is not a judgment and a decree in the eye of law and is, therefore, non est as far as the respondent is concerned
21. In the circumstances, the appeal is dismissed with costs.