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THE PRESIDENCY SMALL CAUSE COURTS (BOMBAY AMENDMENT) ACT, 1933
BOMBAY ACT No.V OF 1933
(17th May, 1933)
An Act further to amend the Presidency Small Cause Courts Act, 1882, in its application to the Presidency-town of Bombay
WHEREAS it is expedient further to amend the 2[Presidency Small Cause Courts Act, 1882, in its application to the Presidency-town of Bombay; It is hereby enacted as follows;
STATEMENT OF OBJECTS AND REASONS
“The Courts now known as the Courts of Small Causes in the Presidency-towns were established by a Charter of George the Second, dated 8th January, 1753, and would accordingly appear to be the oldest Courts at present existing in British India.
They have, from time to time, undergone may changes, their constitution having been remodelled, their jurisdiction extended and their procedure amended by various enactments and orders, in particular by Acts, IX of 1850 and XXVI of 1864, which placed them on a footing closely resembling that of the English County Courts; but they have been left to a great extent untouched by the important legislation by which, in recent years to procedure of the of the Civil Courts in this country has been reformed.
The result of this is that they have become some what antiquated and do not fit in with the rest of the Indian judicial system; that their power and procedure arc, in many particulars defective, and that though, owing to the efficient manner in which they have been worked, they have generally given satisfaction, questions have often to be discussed in them which, to use the words of a late Small Cause Court Judge, now on the Bench of the Madras High Court, are totally foreign to the people who resort to them; and some of which have only an historic interest even in England.
The need of completely revising the law relating to these Courts was pointed out many years ago by Mr. Fagan and Mr. Boulnois, two of the ablest Judges who have presided in the Calcutta Small Cause Court; and in the year 1868, a Bill was drafted for this purpose by Mr. Pitt Kennedy, but further action in the matter has been, from time to Lime, postponed pending the consideration of certain proposals regarding the jurisdiction and powers of the Courts. These proposals having been fully discussed, as near an approach to unanimity regarding them as can well be hoped for has been attained, and the present Bill has accordingly been prepared to consolidate and amend the entire law.
The most important change introduced by i lies in the extension of the pecuniary limit of the jurisdiction from Rs. 1,030 to Rs. 2,000. This extension was asked for by the Calcutta Trades Association as far back as 1867. It has since then been much discussed, and has the approval of the Governments of Madras, Bombay and Bengal, of the High Court of Madras, and, subject to a limitation to be presently referred to, of the High Court at Calcutta. The only opposition to it comes from the High Court at Bombay; and that opposition appears to proceed, not so much from ay objection to the principle of the extension, as from a fear that it will nut be acceptable to the public—A point on which we shall be better able to form an opinion after the Bill has been published.
This Bill, it will be observed, is drawn so as to extend the jurisdiction in all classes of suits cognizable by the Court. The Calcutta High Court would have excepted actions of tort; but it has been thought well to avoid, if possible, making any distinctions of this sort, which, to persons of the class who resort to the Small Cause Court and their advisors, would, it is feared, occasion difficulties.
Assuming that the pecuniary limit of the jurisdiction is to be raised as proposed, the question arises whether any appeal should be allowed in suits above Rs. 1,000 or whether the present system of allowing a new trial by the Court itself and a reference to the High court on a point of law is sufficient. On this point the difference of opinion has been greater.
The Government of Bombay and Bengal, the Calcutta High Court, and the Judges of the Small Cause Court at Bombay, are against admitting an appeal. The Government of Madras, the High Court there, and the Judges of the Small Cause Courts at Calcutta and Madras, are in favour of it; as was also Mr. Kennedy at the time he drew the Bill already referred lo On the one hand, it is urged that allowing an appeal is, especially
as it involves the taking of notes of evidence and the writing of judgments, inconsistent with the summary procedure of the Small Cause Court; that the hearing of the cases subject to appeal could not conveniently be carried on simultaneously with the ordinary Small Cause Court work, and the existence of a power to appeal would render litigation needlessly protracted and expensive.
On the other hand, the importance of providing a check on the trial of questions of fact in suits of the higher value is insisted on, and it is pointed out that, in two at least of the presidency-towns, the practice of taking notes of evidence in all contested cases already prevails. The Bill as at present drawn does not provide an appeal, but the Select Committee, to which it is proposed to refer it will, no doubt, consider whether in suits above Rs. 1,0 an appeal should not be allowed.
The next question which presents itself in connection with the jurisdiction of the Court is that as to the classes of suits which the Court should be empowered to hear. It has been thought best, both with a view to relieve the High Court as far as possible and in order to avoid, as far as may be, the doubts and difficulties which attend the construction of provisions of this sort, to draw the Bill so as to give the Small Cause Court jurisdiction in suits of all descriptions with certain specified exceptions.
The most important of these exceptions is that of suits for the recovery of immovable property. It appears from the records of the Legislative Department that those who framed Act IX of 1850 intended that its 25th section should confer jurisdiction on the Small Cause Courts in such suits; but there has been a considerable difference of opinion as to the actual effect of that Act and of Is amending Act (XXVI of 1864) in this particular.
The High Courts of Calcutta and Bombay have held that the Small Cause Courts were given jurisdiction in the suits in question by the 25th section of Act IX of 1850. The Bombay High Court has held, further, that a like jurisdiction was conferred in suits up to Rs. 1,000 by the Act of 1864, while the Judges of the Calcutta Small Cause Court hold that their jurisdiction in such suits was not extended by that Act. The Madras High Court has held that neither Act conferred any such jurisdiction. To this it should be added that in Calcutta the jurisdiction, though held to exist up to Rs. 500, is, for some reason which has not been fully explained, but little resorted to
The Madras and Bombay authorities and the Majority of the Calcutta High Court are in favour of giving the jurisdiction. The Bengal Government, the officers consulted by it (including the Judges of the Calcutta Small Cause Court) and four of the Judges of the Calcutta High Court are against it. The Bill, as has been already stated, does not give it, and it is manifest that if it were to be given, special provisions relating to it would need be introduced. An appeal should certainly be given; proper provision would have to be made for execution, -and probably some rules would, as suggested both from the Calcutta and Madras High Courts, be required to limit the operation of the decisions as res judicata.
Other cases in which the Bill proposes to withhold jurisdiction from the Small Cause Courts are suits against (he Secretary of State in Council; suits for partition, fore-closure, redemption, suits for the specific performance or the rescission of contracts relating to immovable property; administration_ suits; suits to obtain an injunction; suits to enforce a trust.
One point more remains to be noticed in connection with the jurisdiction of the Courts.
Act IX of 1850, in conferring jurisdiction on the Courts up to a value of Rs. 500, confines its exercise to cases of defendants dwelling or carrying on business within the local limits. Act XXVI of 1864, on the other hand, in conferring jurisdiction between the value of Rs. 500 and Rs. 1,000, gives an alternative ground for its exercise, namely, the circumstances or the cause of action having arisen within the local limits. It has been urged by most of the authorities consulted that the basis of the jurisdiction should be the same in cases all values. On the other hand, fears have been expressed by some that a power to institute a suit of the lower value against .a defendant residing at a distance might be liable to abuse unless some limitations were imposed. The correct view of the matter seems to be that taken by the Judges of the Madras High Court and Mr. Busteed, namely, that in this particular no distinction should be made between the High Court and the Small Ca Court. and accordingly the Bill h been drawn so as to place the jurisdiction of the Small Cause Court in this respect on precisely the same footing as that on which the jurisdiction of the High Court is placed by the Letters Patent.
The want of any power to execute the decree of a Small Cause Court against immovable property, except by the circuitous process of instituting a suit upon such decree in the High Court, has for many years past been complained of as involving an undue hardship to plaintiffs, and in some places, particularly in Madras, driving them to institute their suits in the High Court instead of in the Small Cause Court. The injections that exist to giving the Small Cause Courts jurisdiction in suits to recover immovable property apply also to giving them power to execute their decrees against immovable property, and it is accordingly proposed by the Bill [ 31] to empower the Court to send its decree for execution to the 1- Court or to a mulassal Court, in the same way as the muiasszil Small Cause Courts do under section 2(1 of Act Xl of 1865. The only serious opposition to this proposal comes from the High Court of Bombay, and it rests mainly on the political or economical objections which of late years have been so frequently urged against the sale of immovable property in execution of decrees— Objections which, however weighty they may be in the mufassal, where the land is the only means of livelihood of the mass of the people, and is in fact the basis of society, have little or no force in the cases that occur in the Presidency-towns. — Statement or Objects and Reasons —Act, 1882 — Gazette of India, 1880, Pt. V, p. 376.
SECTION 01: SHORT TITLE
This Act may be called the Presidency Small Cause Courts (Bombay Amendment) Act, 1933.
SECTION 02: AMENDMENT OF THE THIRD SCHEDULE TO ACT XV OF 1982
In the foot-note to Part E of the third Schedule to the Presidency Small Cause Courts Act, 1882, for the words “four annas per day” the words “such fee not exceeding twelve annas per day as m be fixed by the Registrar of the Small Cause Court” shall be substituted.
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