RECOMMENDATIONS - Gujaratlpd.gujarat.gov.in/assets/downloads/reports_07062017_10.pdf · Judges for dealing and deciding Civil Appeal, New Trial ... to law administered by High Court

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RECOMMENDATIONS

FOR SUITABLE AMENDMENT

IN THE PRESIDENCY SMALL CAUSE

COURT ACT, 1882 AND RULES

1. The Small Cause Court was constituted on

04th November, 1961 under the Presidency Small

Cause Court Act, 1882 (PSCCA). At present, this Court

is functioning in the Court Compound of City Civil and

Sessions Court, Bhadra, Ahmedabad since its

establishment. At the time of establishment of this

Court, only four Courts were constituted and started

functioning. At present, in this Court, fourteen Courts

are constituted and eleven Courts are functioning. The

Head of the Department of this Court is called “Chief

Judge”.

Jurisdiction:––

In Small Cause Court, (i) summary suit up to the

value of Rs.10,00,000/–; (ii) suit for recovery of house

rent and/or possession; (iii) suit under B.P.M.C. Act;

(iv) Election Petitions; (v) Municipal Valuation Appeal

against Tax etc. could be filed. The Small Cause Court,

Ahmedabad has also Appellate Bench consisting of two

Judges for dealing and deciding Civil Appeal, New Trial

Application, Civil Revision Application.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Recommendations for suitable amendment in The Presidency Small Cause Court Act, 1882 and Rules

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2. PSCCA as applicable to the city of Ahmedabad was

amended on 08th June, 2002 by conferring jurisdiction

to Small Cause Courts for the city of Ahmedabad up to

Rs.2,00,000/– which came into force from

02nd September, 2002. Thereafter, vide Government

Gazette published on 18th June, 2015, PSCCA has

been amended by conferring jurisdiction to Small

Cause Court up to Rs.10,00,000/– (Rupees Ten lacs).

3. Chapter III of PSCCA provides “Law administered by

the Court”. Section 16 deals with the provision relating

to “question arising in suits, etc. under Act to be

decided according to law administered by High Court.”

Said Section reads:––

“All questions, other than questions relating to

procedure or practice, which arise in suits or other

proceedings under this Act in the Small Cause Court

shall be dealt with and determined according to the law

for the time being administered by High Court in the

exercise of its ordinary original civil jurisdiction.”

4. Section 8 of the Ahmedabad City Courts Act, 1961

deals with the provision relating to “questions arising

in suits, etc. under Act to be dealt with according to

law administered by District Court.” Said Section

reads:––


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“Save as otherwise provided in this Act and subject to

such rules as the High Court may make for the City

Court under Article 227 of the Constitution or Section

122 of the Code of Civil Procedure, 1908, all questions

which arise in suits or other proceedings under this Act

in the City Court shall be dealt with and determined

according to the law for the time being administered by

a District Court.”

District Court is required to follow CPC for

deciding the disputes.

5. Rule 34 of the Ahmedabad Small Cause Courts Rules,

1961 deals with “Interlocutory Orders” which reads:––

“The Court may, on the application of any party to the

suit, order the sale by an officer of the Court or any

person named in such order and in such manner and on

such terms as it thinks fit, of any movable property

which is the subject – matter of such suit or attached

before judgment in such suit, which is subject to speedy

and natural delay or for any other just and sufficient

cause, the Court considers desirable to have sold at

once.”

6. Rule 35 of the Ahmedabad Small Cause Courts Rules,

1961 deals with alteration, preservation or inspection

of any property which is subject matter of the said suit

or any question may arise, etc. The said rule reads:––


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“35. (1) The Court may, on the application of any

party to the suit and on such terms, as it

thinks fit––

(a) make an order for the detention,

preservation or inspection of any

property which is the subject matter of

such suit or as to which any question

may arise therein;

(b) for all or any of the purposes aforesaid

authorize any person to enter upon or

into any land or building in the

possession of any other party to such

suit; and

(c) for all or any of the purposes aforesaid

authorize any samples to be taken or

any observation to be made or test to be

made which may seem necessary or

expedient for the purpose of obtaining

full information or evidence.

(2) The provisions as to the execution of process

shall apply mutatis mutandis to the persons

authorized to enter upon this rule.”

7. Generally, all Banks and Financial Institutions in the

city of Ahmedabad are filing money recovery suits /

summary suits in the Small Cause Court, Ahmedabad

for the recovery of their dues for various types of

facilities, granted to borrowers / guarantors.


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8. (i) For the purpose of safeguarding the interest and

securities, it is usual phenomena that, all Banks

and Financial Institutions are required to move

applications for interim relief, before the City Civil

Court, Ahmedabad, as the Small Cause Court

has no jurisdiction to grant interim relief.

Further, all Banks including Financial

Institutions are required to move an application

for attachment before Judgment under Order

XXXVIII Rules 1 to 5 of the Code of Civil

Procedure (CPC) either at the time of filing the

suit or during the pendency of the suit in view of

hypothecation of movable assets or equitable /

simple mortgage of immovable property /

properties before the City Civil Court.

Such applications are required to be filed

before the City Civil Court because Order XXXVIII

Rule 13 of CPC provides that, “Small Cause Court

not to attach immovable property:––

Nothing in this order shall be deemed to

empower any Court of Small Causes to make an

order for the attachment of immovable property.”

(ii) Secondly, for attachment or for ad–interim

injunction, bank or plaintiff is required to file

application before the City Civil Court,

Ahmedabad because PSCCA expressly prohibits


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the operation of the provisions of Order XXXIX

Rules 1 to 5 of CPC.

Thus, there is no remedy available with the

plaintiff at the time of filing the suit for getting

interim relief, even though suits for recovery up

to Rs.10,00,000/– could be filed before the Small

Cause Court.

For avoiding duplication of work and

difficulty of the plaintiff, for interim relief, as

provided under Order XXXIX Rules 1 to 5 of

CPC and for attachment of the immovable

property which might have been mortgaged by

the defendant, such jurisdiction is required to

be conferred upon Small Cause Court.

9. Transfer of pending cases:––

As the jurisdiction of the Small Cause Court has

been increased to Rs.10,00,000/– (Rupees Ten lacs)

vide amendment of the Act in June, 2015, the plaintiff

has to approach the City Civil Court for getting interim

relief because the pending cases would be required to

be transferred from City Civil Court to Small Cause

Court. With regard to “transfer of pending cases”, it

has been provided in the amending the Act that, “All

suits and applications of a civil nature wherein the


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subject matter exceeds in amount or value two lacs

rupees but does not exceed ten lacs rupees pending in

the Courts of City Civil, Ahmedabad immediately before

the commencement of the Presidency Small Cause

Courts (Gujarat Amendment) Act, 2015, shall after such

commencement, stand transferred, to and be disposed

of by the Judge, Court of Small Cause, Ahmedabad

within the local limit of his ordinary jurisdiction.”

Transfer of pending cases on occasions causes

duplication of work because in some cases, matter

might be partly heard. To avoid this, appropriate

amendment is required to be carried out.

10. Hence, it is suggested that:––

To avoid the difficulties faced by the plaintiff

where suit for recovery up to Rs.10,00,000/– is filed

for protecting plaintiff’s rights, it is recommended as

follows:––

(i) PSCCA applicable to the city of Ahmedabad where

the suit for recovery of Rs.10,00,000/– and where

other suits as provided could be filed, Small

Cause Court be empowered to grant ad–interim or

interim relief as provided under Order XXXIX

Rules 1 to 5 of CPC.


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(ii) Secondly, Small Cause Court be empowered to

pass order for attachment before judgment.

(iii) Thirdly, to avoid delay and duplication of work,

before transferring the cases from the City Civil

Court to Small Cause Court where the value of

suit is Rs.10,00,000/– or below thereto, the

status of the case may be considered. That is to

say, in a case where the value of suit is up to

Rs.10,00,000/– and the evidence has been

recorded partly or fully and/or the arguments

have been heard partly or fully, then such a case

shall not be transferred to the Small Cause

Court. Such a case shall be disposed of by the

City Civil Court. Hence, the Act is required to be

suitably amended for doing effective justice and

for avoiding unnecessary delay.

(iv) In addition, other important question is with

regard to execution of the decree/order passed by

the Small Cause Court. Under the Act, provisions

of Order XXI, Rule 82 to 96 of CPC are not

applicable. Considering the increase in the

jurisdiction of the Small Cause Court, the power

to execute its decree can be conferred upon the

Small Cause Court. Further, appropriate

amendment applicable to State of Gujarat be

made in Order XXXVIII, Rule 13 of CPC so as to

empower Small Cause Court to attach the

immovable property.


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11. For the aforesaid purpose, Ahmedabad Small Cause

Courts Rules (ASCCR), 1961 are required to be

amended.

Rule 1(2) of the ASCCR provides that, “The

portions of the Code of Civil Procedure, Act V of 1901, as

modified upto 4th November, 1961 in its applications to

the State of Gujarat specified in the last column of the

schedule hereto annexed shall, subject to the additions,

alterations and modifications specified in the 2nd column

of such schedule, extend and shall be applied to the

Small Cause Court and the procedure prescribed

thereby shall be the procedure followed in the Court in

all suits cognizable by it except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Presidency Small Cause Courts Act, 1882, or with these rules.”

Further, there are provisions which make certain

rules inapplicable to the proceedings before the Small

Cause Court. The relevant part of the Schedule is

inter–alia reproduced herein below for which

amendment is required to be made and for that

purpose, where the word “omit” is used, the same may

be deleted. This would empower Small Cause Court to

exercise its jurisdiction of granting interim relief.


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Portions of the Civil

Procedure Code

extending to the Court

Additions, Alterations

and Modifications

Section 94(c) omit Part VI

Supplemental

Proceedings Section 95(1) omit the

words “or a temporary

injunction granted”

In (1)(a) and (2), omit

“comma” after the word

“arrest” and insert the

word “or” in its place and

omit the words “or

injunction”

Order XXXVIII

Arrest and attachment

before judgment (except

as regards the

attachment of immovable

property)

Rule 3 omit

…

Order XXXIX

Temporary Injunction

and Interlocutory orders

Rule 1 to 5

(both inclusive) omit

Rule 9 omit

The result of the aforesaid word “omit” is that

the Court cannot grant interim relief.


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(i) Section 94(c) of CPC inter–alia provides that, in order

to prevent the ends of justice from being defeated, the

Court may, if it is so prescribed, grant a temporary

injunction and in case of disobedience commit the

person guilty thereof to the civil prison and order that

his property be attached and sold.

If the word “omit” is deleted, Small Cause

Court would be in a position to grant interim relief.

(ii) Section 95(1) of CPC be made applicable by deleting

the word “omit – the words ‘or a temporary injunction

granted’”. Section 95 deals with “Compensation for

obtaining arrest, attachment or injunction on

insufficient grounds”. It reads:––

“(1) Where, in any suit in which an arrest or

attachment has been effected or a temporary injunction granted under the last preceding

section,

(a) it appears to the Court that such arrest,

attachment or injunction was applied for on

insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to

the Court that there was no reasonable

probable ground for instituting the same,


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the defendant may apply to the Court, and the

Court may, upon such application, award against

the plaintiff by its order such amount not

exceeding fifty thousand rupees, as it deems a

reasonable compensation to the defendant for the

expenses or injury (including injury to reputation)

caused to him;

Provided that a Court shall not award, under

this section, an amount exceeding the limits of its

pecuniary jurisdiction.

(2) An order determining any such application shall

bar any suit for compensation in respect of such

arrest, attachment or injunction.”

(iii) To make Order XXXVIII of CPC, Rule 3 applicable, the

word “omit” be deleted and thereby Order XXXVIII,

Rule 3 would be applicable, which reads as under:––

“3. Procedure on application by surety to be discharged:––

(1) A surety for the appearance of a defendant

may at any time apply to the Court in which

he became such surety to be discharged from

his obligation.


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(2) On such application being made, the Court

shall summon the defendant to appear or, if

it thinks fit, may issue a warrant for his

arrest in the first instance.

(3) On the appearance of the defendant in

pursuance of the summons or warrant, or on

his voluntary surrender, the Court shall direct

the surety to be discharged from his

obligation, and shall call upon the defendant

to find fresh security.”

(iv) Similarly, application of Rule 1 to 5 and Rule 9 of

Order XXXIX of CPC is made inapplicable and that is

also required to be changed by deleting the word

“omit”.

Said Rules 1 to 5 and 9 of Order XXXIX read:––

“1. Cases in which temporary injunction may be granted:––

Where in any suit, it is proved by affidavit or

otherwise––

a) that any property in dispute in a suit is in

danger of being wasted, damaged or

alienated by any party to the suit, or

wrongfully sold in execution of a decree, or


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b) that the defendant threatens, or intends, to

remove or dispose of his property with a view

to defrauding his creditors,

c) that the defendant threatens or dispossess,

the plaintiff or otherwise cause injury to the

plaintiff in relation to any property in dispute

in the suit,

the Court may by order grant a temporary

injunction to restrain such act, or make such other

order for the purpose of staying and preventing the

wasting, damaging, alienation, sale, removal or

disposition of the property or dispossession of the

plaintiff, or otherwise causing injury to the plaintiff

in relation to any property in dispute in the suit, as

the Court thinks fit, until the disposal of the suit or

until further orders.

2. Injunction to restrain repetition or continuance of breach:––

(1) In any suit for restraining the defendant from

committing a breach of contract or other

injury of any kind, whether compensation is

claimed in the suit or not, the plaintiff may, at

any time after the commencement of the suit,

and either before or after judgment, apply to

the Court for a temporary injunction to


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restrain the defendant from committing the

breach of contract or injury complained of, or

any breach of contract or injury of a like kind

arising out of the same contract to relating to

the same property or right.

(2) The Court may by order grant such

injunction, on such terms as to the duration

of the injunction, keeping an account, giving

security, or otherwise, as the Court thinks fit.

2–A. Consequence of disobedience or breach of injunction:––

(1) In the case of disobedience of any injunction

granted or other Order made under Rule 1 or

Rule 2 or breach of any of the terms on which

the injunction was granted or the Order

made, the Court granting the injunction or

making the order, or any Court to which the

Suit or proceeding is transferred, may order

the property of the person guilty of such

disobedience or breach to be attached, and

may also order such person to be detained in

the civil prison for a term not exceeding three

months, unless in the meantime the Court

directs his release.


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(2) No attachment made under this rule shall

remain in force for more than one year at the

end of which time, if the disobedience or

breach continues, the property attached may

be sold and out of the proceedings, the Court

may award such compensation as it thinks

fit to the injured party and shall pay the

balance, if any, to the party entitled thereto.

3. Before granting injunction, Court to direct notice to opposite party:––

The Court shall in all cases, except where it

appears that the object of granting the injunction

would be defeated by the delay, before granting

an injunction, direct notice of the application for the

same to be given to the opposite party:

Provided that, where it is proposed to grant

an injunction without giving notice of the

application to the opposite party, the Court shall

record the reasons for its opinion that the object of

granting the injunction would be defeated by

delay, and require the applicant—

(a) to deliver to the opposite party, or to send to

him by registered post, immediately after the

order granting the injunction has been made,

a copy of the application for injunction

together with— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Recommendations for suitable amendment in The Presidency Small Cause Court Act, 1882 and Rules

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(i) a copy of the affidavit filed in support of

the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the

applicant relies, and

(b) to file, on the day on which such injunction is

granted or on the day immediately following

that day, an affidavit stating that the copies

aforesaid have been so delivered or sent.

3A. Court to dispose of application for injunction within thirty days:––

Where an injunction has been granted

without giving notice to the opposite party, the

Court shall make an endeavour to finally dispose

of the application within thirty days from the date

on which the injunction was granted; and where it

is unable so to do, it shall record its reasons for

such inability.

4. Order for injunction may be discharged, varied or set aside:––

Any order for an injunction may be

discharged, or varied, or set aside by the Court, on

application made thereto by any party dissatisfied

with such order:


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Provided that if in an application for

temporary injunction or in any affidavit supporting

such application, a party has knowingly made a

false or misleading statement in relation to a

material particular and the injunction was granted

without giving notice to the opposite party, the

Court shall vacate the injunction unless, for

reasons to be recorded, it considers that it is not

necessary so to do in the interests of justice:

Provided further that where an order for

injunction has been passed after giving to a party

an opportunity of being heard, the order shall not

be discharged, varied or set aside on the

application of that party except where such

discharge, variation or setting aside has been

necessitated by a change in the circumstances, or

unless the Court is satisfied that the order has

caused undue hardship to that party.

5. Injunction to corporation binding on its officers:––

An injunction directed to a corporation is

binding not only on the corporation itself, but also

on all members and officers of the corporation

whose personal action it seeks to restrain.

… …


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9. When party may be put in immediate

possession of land the subject matter of

suit:––

Where land paying revenue to Government,

or a tenure liable to sale, is the subject – matter of

a suit, if the party in possession of such land or

tenure neglects to pay the Government revenue, or

the rent due to the proprietor of the tenure, as the

case may be, and such land or tenure is

consequently ordered to be sold, any other party to

the suit claiming to have an interest in such land

or tenure may, upon payment of the revenue or

rent due previously to the sale (and with or

without security at the discretion of the Court), be

put in immediate possession of the land or tenure;

and the Court in its decree may award against the

defaulter the amount so paid, with interest thereon

at such rate as the Court thinks fit, or may charge

the amount so paid, with interest thereon at such

rate as the Court orders, in any adjustment of

accounts which may be directed in the decree

passed in the suit.”


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RECOMMENDATIONS - Gujaratlpd.gujarat.gov.in/assets/downloads/reports_07062017_10.pdf · Judges for dealing and deciding Civil Appeal, New Trial ... to law administered by High Court