Oral Order

1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') is filed by the original defendants against the judgment and order dated 26.12.2023 passed by learned 10th Addl. District Judge, Vadodara in Regular Civil Appeal No.162 of 2023 confirming the judgment and decree dated 04.05.2023 passed by the 12 th Additional Judge, Small Cause court, Vadodara in Money Suit No.171 of 2021.

2. It appears from the materials on record that the respondent herein - original plaintiff filed a Money Suit No.171 of 2021 in the Court of Small Causes Court, Vadodra for recovery of money to the tune of Rs.1,00,000/-. The appellants herein - original defendants appeared before the trial court and contested the suit. The trial court framed the following issues at Exh.12:

          "[1] Whether the plaintiff proves that the plaintiff is entitled to recover the suit amount from the defendant as alleged ?

          [2] Whether the plaintiff is entitled to get interest ? If yes at what rate ?

          [3] What order and decree ?

3. The issues framed by the court below came to be answered as under :

          "[1] In the affirmative.

          [2] Partly in affirmative

          [3] As per final order."

4. The trial court, upon final adjudication of the controversy between the parties and upon appreciation of the oral as well as documentary evidence, partly allowed the suit and passed a decree of recovery of Rs.1 lac from the defendants at the rate of 6% interest from the date of filing of the suit.

5. The appellants herein - original defendants, being dissatisfied with the judgment and decree passed by the trial court, preferred the Regular Appeal No.162 of 2023 in the District Court at Vadodara.

6. The lower appellate court, upon re-appreciation of the entire oral as well as documentary evidence, thought fit to affirm the judgment and decree passed by the trial court and thereby dismissed the appeal.

7. Being dissatisfied with the judgment and order passed by the lower appellate court dismissing the appeal, the appellants - original defendants are before this Court with this Second Appeal under Section 100 of the Code.

8. Seeking admission of second appeal, the following questions have been formulated as the substantial questions of law in the memorandum of the second appeal :

          "I. Whether the lower Courts erred in law by shifting the burden of proof onto the appellant contrary to the established principles of law ?

          II. Whether the findings of the lower courts are perverse and based on a mis-appreciation of evidence, thereby warranting interference by this Hon'ble Court ?

          III. Whether the lower Courts have erred in not considering the discrepancies and contradictions in the evidence presented by the respondent ?

          IV. Whether the interest awarded by the lower Courts is justified and in accordance with the law?

9. Learned advocate appearing for the appellants, vehemently submitted that the money decree passed by the trial court and affirmed by the lower appellate court is a bad in law. It is submitted that learned Courts below have wrongly applied provisions of law concerning the burden of proof. It is submitted that learned Courts below have committed error in passing judgment and decree. It is submitted that appellant is innocent and never borrowed any money from respondent herein. In fact respondent is son in law of the appellant. The respondent wanted to purchase house and therefore, he borrowed money from appellant with condition to return it soon. It is submitted that respondent was harassing daughter of the appellant and disputes were going on since long. It is submitted that there is no evidence worth the name to arrive at the conclusion that the suit amount was borrowed by the appellant from the respondent. It is submitted that learned Courts below have not appreciated this aspects and thereby committed error. Therefore, it is submitted to admit the Second Appeal.

10. Heard learned advocate for the appellant.

11. It is admitted fact that suit is filed under under the provisions of Small Cause Courts Act. The suit is filed by respondent - plaintiff for recovery of amount from the appellant. Learned Trial Court after appreciating the evidence on record partly allowed the suit in favour of the respondent and directed the appellant to pay Rs.1 lakh with 6% interest per annum. The appellant aggrieved by said judgment preferred appeal before the learned Appellate Court. Learned Appellate Court also dismissed the appeal and confirmed the judgment passed by leaned Small Causes Court.

12. The question which falls for consideration of this Court is whether Second Appeal filed against the judgment and order passed by learned Small Causes Court is maintainable or not. In identical fact situation, the Co-ordinate Bench in Second Appeal No.227 of 2018 between Bharatbhai Nanabhai Harijan v/s. Mangalsingh Shaymsingh Gil dated 08.08.2018 has taken view that Second Appeal is not maintainable. Relevant para 48 to 59 reads as under :-

          "48. In (1910) ILR 33 Mad 323 (supra), a case of a small cause nature was tried as a regular suit and decreed in favour of the plaintiff by the District Munsiff. On appeal to the Sub-Judge, the decree was reversed. When the plaintiff filed an application in the High Court for revising the said order, contending that the order of the Sub-Judge on appeal was without jurisdiction as the suit was of a small cause nature in which no appeal lay to the District Judge, the learned single Judge declined to interfere for the reason that the plaintiff himself had instituted the suit on the original side and would not, therefore, be heard to complain that the defendant had filed an appeal against the decree in the original suit. On appeal to a Division Bench under the Letters Patent, Sankaran Nair and Abdur Rahim, JJ. doubted the correctness of the decision in (1904) ILR 27 Mad 478 (supra) so far as the appellate decision was concerned and referred the question to a Full Bench which said:

          "We are unable to agree with the view taken by the learned Judges in (1904) ILR 27 Mad 478, as regards the appellate decision in that case. As the decision of the appellate Court in the case before us was made without jurisdiction, we think this Court is bound to set it aside. As regards the decision of the Appellate Court, we think the cases Ramasamy Chettiar v. R. G. Orr, C/SA/227/2018 JUDGMENT ILR 26 Mad 176 and Shankarbhai v. Somabhai, (1902) ILR 25 Bom 417 were rightly decided."

          With due deference to the learned Judges of the Full Bench, we see no reason to distinguish between the judgments of the trial Court and the Appellate Court, in this respect, nor do we see the necessity to hold that the appellate judgment must necessarily be set aside as one without jurisdiction. If a small cause suit is tried as regular suit, it is open to one appeal, though a second appeal is barred because of Section 102 of the Code. The first appeal, cannot, therefore, be held to be one without jurisdiction. We also agree with Sankaran Nair, J. in his order of reference that the District Court referred to in Rule 7 of Order XLVI is not necessarily the appellate Court to which an appeal from the judgment and decree of a small cause case tried regularly is preferred; but, even so, we see no reason to hold that the appeal is one without jurisdiction. In our opinion, if the case, which is triable by a Court of Small Causes, is tried regularly, one appeal shall lie from such judgment; and if a case, which is triable by a regular Civil Court, is tried by a Court of Small Causes, it shall be open to a revision under Section 25 of the Provincial Small Cause Courts Act, because the right of appeal or revision arises from what a court actually does and not from what it ought to have done. In our opinion, (1901) ILR 25 Bom 417 and (1902) ILR 26 Mad 176, which hold to the contrary, are not correctly decided.

49. That this has been the view of this Court is amply clear from the decision in Kamruddin v. Mt. Indrani, 19 Nag LR C/SA/227/2018 JUDGMENT 179 : (AIR 1924 Nag 17), where a suit cognizable by a Court of Small Causes had been tried by a Munsiff and decreed in favour of the plaintiff. The defendant appealed to the District Judge without reference to the question of jurisdiction, who reversed the decree of the Munsiff. On a revision under Section 115 of the Code to the Court of the Judicial Commissioner, Baker, the Officiating J. C. held:

          "In this case the parties have had a full trial before the Munsiff and an appeal to the District Judge without objection on the point of his jurisdiction, and I respectfully agree with the view of the Allahabad and Calcutta High Courts. I, therefore, decline to interfere and dismiss the application with costs."

          The Allahabad and Calcutta view referred to above are those of (1903) ILR 25 All 135 and (1894) ILR 21 Cal 249. The decisions in (1901) ILR 25 Bom 417 and (1910) ILR 33 Mad 323 (supra) were distinguished on the ground that in those cases, the trial Judges having Small Cause Court jurisdiction, had tried the suits on the regular side and as, in the opinion of those courts, the character of the suits was not altered by the mode in which they were tried, the judgments and decrees in those cases must be held to be judgments and decrees of a Court of Small Causes which were not liable to appeal.

          50. In our opinion, the distinction is not well founded. Under Section 33 of the Act, a Court when trying a cause as a long cause and the same Court trying a cause as a small cause are different Courts, so that no distinction can be made on the ground that when the same Court has both the jurisdictions, an appeal is not competent.

          51. In AIR 1930 Bom 80 (supra), a case triable by a Court of Small Causes was tried as a long cause by the Joint Subordinate Judge. The claim was decreed; but, on appeal, the District Court reversed the decree. On a revision under Section 115 of the Code of Civil Procedure, the learned Judge set aside both the decrees - the appellate decree on the authority of,(1910) ILR 33 Mad 323 (supra), (1904) ILR 27 Mad 478 (supra) and Abdul Majid v. Bidyadhar Saran Das, ILR 39 All 101 : (AIR 1917 All 159) and the decree of the trial Court on the ground that the trial of the suit as an ordinary suit had prejudiced the parties because the Joint Subordinate Judge was not a Judge of sufficient seniority to be entrusted with Small Cause Court's powers and, therefore, not a proper tribunal for the trial of the suit. In our opinion, with respect, the reasoning of the judgment is faulty and we cannot agree with the conclusions reached in it. In the first place, the decision is contrary to 19 Nag LR 179 : (AIR 1924 Nag 17) (supra) with which we substantially agree; and, in the second place, we do not see how and why an appeal would not lie against the judgment and decree in a small cause suit tried as a long cause by a Judge who had not both the jurisdictions, the basis on which the learned Officiating Judicial Commissioner had distinguished the case in (1910) ILR 33 Mad 323 and (1901) ILR 25 Bom 417 (supra) in 19 Nag LR 179 : (AIR 1924 Nag 17) (supra).

          52. In Rajjupuri v. Deva, 30 Nag LR 133 : (AIR 1933 Nag 221) in a revision under Section 25 of the Provincial Small Cause Courts Act, Grille, A. J. C. held that before seeking his remedy in the High Court, it was incumbent on a person, whose plaint had been returned for presentation to the proper Court, both by the Court of Small Causes and that of the Subordinate Judge, to exhaust the remedies open to him by making an application to the District Judge under Order XLVI, Rule 7, of the Civil Procedure Code. This again shows that a challenge to the jurisdiction of a Court on the allegation that it has acted or failed to act in conformity with the provisions of Section 16 of the Provincial Small Cause Courts Act must first be made under the provisions of Rule 7 of Order XLVI of the Code of Civil Procedure.

          53. In U. K. Seal v. Aramugam Chettyar, AIR 1938 Rang 35, the question arose whether the judgment and decree of a Township Court, who had tried a cause of a small cause nature as a long cause on its regular side even though it had jurisdiction to try it as a small cause, were a nullity.

          Repelling the contention, Dunkley, J., said:-

          "Order 46, Rule 7 of the Code makes it clear that where a suit which is cognizable by a Court of Small Causes has been tried by a Court which is not a Small Cause Court, in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, then the only procedure which may be taken to correct that error is for a party to the suit to require the District Court to make a reference to the High Court, and upon that reference, the High Court may make such order in the case as it thinks fit. This provision clearly shows that the proceedings of the Regular Court, although the suit has been tried by it in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, are by no means a nullity, but may be upheld it the High Court considers that substantial justice has been done. This is, the view which was taken by Nanavutty, J. in ILR 56 Bom 387 at P. 393 : (AIR 1932 Bom 486 at pp. 488-89) with which I respectfully agree. Moreover, whether the present application in revision be looked upon, as an application under Section 25, Provincial Small Cause Courts Act, or under Section 115, Civil Procedure Code, the power of this Court to interfere to reverse or vary the decree of the original Court is discretionary, and in regard to this matter, I desire to remark that if the contention which has been put forward on behalf of the applicant is correct, then it would appear that the present application must have been made under Section 115, Civil Procedure Code, although it purports to have been brought under Section 25, Provincial Small Cause Courts Act. Learned counsel for the applicant is unable to contend that his client has been prejudiced in any way by the fact that the suit has been tried as a regular suit instead of as a small cause and it would scarcely be possible for either party to contend as in the regular trial they have had a better opportunity of placing their respective cases before the Court, and also they have obtained a full record of the evidence and considered judgment. Consequently, I should be unable to hold that it was a proper exercise of the discretion which is vested in me to interfere in this case on the sole ground that the Township Court tried the suit without jurisdiction, when it has to be admitted that neither party has been prejudiced by that action."

          54. It is further significant to note that on a reference being made to the High Court, it has been given the power to pass such order in the case as it thinks fit, which means that the legislature did not intend any error of jurisdiction in this behalf by the trial Court to necessarily vitiate its judgment and decree as void or as nullities. Because, if the trial of a suit in contravention of Section 16 of the Provincial Small Cause Courts Act was to necessarily result in a void judgment and a void decree as passed without jurisdiction, there was no point, in the first place, in giving discretionary power to the District Court to make a reference or not and, in the second place, in empowering the High Court on a reference being made to pass such orders as it thinks fit. Any Court where the question of their legal validity arose could have under its general jurisdiction declared them as void and nullities. Thus, it has been held in AIR 1915 Cal 619, (1894) ILR 21 Cal 249, Jaduni Pande v. Sheonandan Pande, ILR 11 Pat 690 : (AIR 1933 Pat 31) and Sawnkey Mian v. Zabunnissa Begum, 1957-1 Andh WR 261 that in a reference under the aforesaid rule, the High Court is not bound to set aside the proceedings in all cases as null and void being without jurisdiction, but has been specifically empowered to go into the merits of the case so as to do substantial justice, without unnecessarily putting the parties to the expenses of a fresh full trial de novo , on such a technical plea of jurisdiction.

          55. In our opinion, if a contravention of Section 16 of the Act was a defect of jurisdiction, power could not have been given to the High Court on a reference under Rule 7 of Order XLVI of the Code to pass such orders in respect of it as it thought fit. If the judgments and decrees were nullities for want of jurisdiction, all that had to be done or could be done was to declare them null and void. The want of jurisdiction, if there was one, could neither be ignored nor condoned; but as the Legislature did provide in Rule 7 of Order XLVI of the Code that it could be so ignored or condoned, if substantial justice had been done, it would only mean that a contravention of Section 16 of the Act was not intended to be a defect of jurisdiction vitiating the trial and rendering the judgments and decrees nullities.

          56. Lastly, the provisions of Sec. 102 of the Code of Civil Procedure also support the view we have taken. Section 102 of the Code says:-

          "No second appeal shall lie 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 one thousand rupees."

          The provision can have no reference to proceedings under the Provincial Small Cause Courts Act because Section 27 of the Provincial Small Cause Courts Act provides that the judgment and decrees of Courts of Small Causes are final and they are only subject to a revision to the High Court under Section 25 of the Act, so that no question of a second appeal can arise from a judgment and decree of a Court of Small Causes. But the provisions can have reference to following four situations arising out of trial of suits of Small Cause nature by regular Courts as long causes. The first is where a case of the nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit, because the question was not raised at the trial. The second is where it is so tried because, though the question was raised, it was erroneously decided by the Court or by the High Court on a reference under Order 46, Rule 6 of the Code of Civil Procedure. The third is where a case is sent to a regular Civil Court for a trial in a regular way as a long cause under Section 23 of the Provincial Small Cause Courts Act. And the fourth is where it is so tried because there are no Small Cause Courts or Courts invested with the powers of Small Cause Courts for the local area so that there is no option but to try them as regular suits or as long causes.

          57. The fourth situation would very seldom arise and if the provisions were confined to such cases, it would practically become a dead letter. It is also significant that its operation had so far not been confined to such cases only. Similarly, when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit because of Section 23 of the Act, the suit remains a suit of the nature cognizable by a Court of Small Causes and as such governed by the provisions of Section 102 of the Code. See Sk. Fannu v. Ali Mia, AIR 1943 Cal 464. But if the Section applies to the first two situations also, as we think that it does, then it would be anomalous to say that such cases do not admit of a second appeal, when on the view that their trial was without jurisdiction and as such a nullity, no appeal or revision of any kind was permissible. It, therefore, appears more appropriate to hold that when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit by a competent Court for any reason, whatsoever, either through inadvertence of error or because of the provisions of Section 23 of the Act or through the absence of a Court of Small Causes for that local area, its judgment and decree is not a nullity but that it would not admit of a second appeal so that by implication, it would be subject to one appeal only.

          58. Thus, interpreting the Section, it has been held that if, instead of trying a small cause suit in a summary way, it is tried in the ordinary manner as a regular suit, the mistake will not alter the character of the suit which will nevertheless be a suit of the nature cognizable by a Court of Small Causes and as such subject to the limitations of Section 102 of the Code and that therefore, no decree or order in such a suit will admit of a second appeal. See Bapu Suryabhan v. Kisan, AIR 1928 Nag 136(1), Ganpat Laxman v. Nathu, AIR 1934 Nag 121; Deokali v. Abhram Bali, AIR 1931 Oudh 49; Samir Khan v. Basi Ram, AIR 1925 All 821; Bansi Lal v. Chairman, Town Area Committee, Saidpur, AIR 1941 All 144; Balwantrao Naik v. Biswanath Missir, AIR 1945 Pat 417; Naranappa v. Venkataraman, AIR 1917 Mad 897; Subbiah v. Rajah of Venkatagiri, AIR 1922 Mad 352 and Chidambara Thevar v. Subbaravar, AIR 1926 Mad 623.

          59. We, however, do not agree with the view taken by some Courts that such cases will not admit even of one appeal nor with the view that such cases will only admit of a civil revision under the provisions of Section 25 of the Provincial Small Cause Courts Act. The right of a litigant to go up in appeal or revision depends on what the Court actually does and not on what it ought to have done. So, when a suit of a nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit, it is futile to enquire if that Court had powers of a Court of Small Cause Court also because when exercising the powers of a Court of Small Causes, it is a distinct and a separate Court in view of the provisions of Section 33 of the Provincial Small Cause Courts Act. If it has tried a suit of a nature cognizable by a Small Cause Court as a regular suit, the case would be governed by the incidents of a regular suit subject to the limitations contained in Section 102 of the Code, namely, that such a case shall not admit of a second appeal. But, in our opinion, it would not be correct to hold that such a judgment and decree should none-the-less be held to be the judgment and decree of a competent Small Cause Court which shall not admit of any appeal whatsoever."

13. There cannot be any other reason to deviate from the observations and findings given by the Co-ordinate Bench in the above referred case. The ratio decidendi of Co-ordinate Bench therein also attracts in the case on hand. The Second Appeal is not maintainable against the judgment passed by Small Causes Court and on this ground, the Second Appeal is required to be dismissed.

14. In view of the above the present Second Appeal is dismissed accordingly.