Chartered High Courts and Small Cause Courts
Chapter Fifty-Three
Syllabus topic 4.3, "Miscellaneous, Chartered HCs, Provincial and Presidency Small Causes Courts (Orders XLVIII to LI)"
Pages 313 to 318 of 365
In one line
The Code is a general law, and these three Orders say which parts of it do not apply to Chartered High Courts, to Provincial Courts of Small Causes, and to Presidency Small Cause Courts.
Why the Code needs them
The Code of 1908 had to work across courts that already existed and already had their own rules. The Chartered High Courts of Calcutta, Bombay and Madras were established by charter with their own original jurisdiction and their own practice. Small Cause Courts were created to dispose of small claims quickly, and much of the Code's machinery, designed for substantial suits, would defeat that purpose if applied to them.
So rather than rewrite the Code for each, the draftsman disapplied selected parts. That is all these Orders do, and it is why they are short and largely negative in form.
The hierarchy: sections 3 to 8
Section 3 fixes subordination for the purposes of the Code: the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court, and every Court of Small Causes, is subordinate to the High Court and to the District Court.
That is the provision that makes revision under section 115 and reference under section 113 work, because both depend on a court being "subordinate" to the High Court. See [Reference, Review and Revision].
Section 5 applies the Code to Revenue Courts only so far as it is not inconsistent with the law in force relating to them, and permits the State Government to declare its application.
Section 6 preserves pecuniary jurisdiction: nothing in the Code shall operate to give any Court jurisdiction over suits the amount or value of whose subject matter exceeds the ordinary limits of its jurisdiction.
Sections 7 and 8 are the disapplying provisions for small causes.
Section 7: the following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, or to courts exercising the jurisdiction of a Court of Small Causes under that Act, or to courts in any part of India to which that Act does not extend exercising a corresponding jurisdiction: so much of the body of the Code as relates to suits excepted from the cognizance of a Court of Small Causes, the execution of decrees in such suits, and the execution of decrees against immovable property; and the following sections, section 9, and sections 91 and 92, among others as the section specifies.
Section 8: save as provided in sections 24, 38 to 41, 75(a), (b) and (c), 76, 77, 157 and 158, and by the Presidency Small Cause Courts Act, the Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.
Chartered High Courts and Small Cause Courts
So the two small-cause regimes are treated separately, and section 8 is the more sweeping: the Code as a whole does not extend to the Presidency Small Cause Courts except for the listed provisions.
Order XLIX: Chartered High Courts
Rule 1: nothing in Order IV, Order VI Rules 15 and 16, Order VII Rules 1 to 8, Order X Rule 3 and certain other specified rules shall apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.
Rule 2: nothing in the Code shall be deemed to limit or otherwise affect any rules of the High Court in the exercise of that jurisdiction, or to interfere with the practice of such a Court, except so far as expressly provided.
Rule 3 lists further provisions of the Code that do not apply to such Courts in that jurisdiction, including provisions relating to the summoning of witnesses and certain others specified in the rule.
The idea is simple and should be stated in an answer: on their original side the Chartered High Courts follow their own rules and practice, and the Code yields to them except where it expressly provides otherwise.
Order L: Provincial Small Cause Courts
Rule 1: the provisions of the Code shall not extend to Courts constituted under the Provincial Small Cause Courts Act 1887, or to courts exercising the jurisdiction of a Court of Small Causes under that Act, or to courts in any part of India to which that Act does not extend exercising a corresponding jurisdiction, so far as regards the following:
- suits excepted from the cognizance of a Court of Small Causes, or the execution of decrees in such suits
- the execution of decrees against immovable property
- the settlement of issues
and certain other matters specified in the rule, including the provisions relating to interpleader suits, to appeals, and to references and revisions in the terms the rule sets out.
The three disapplications worth remembering are the ones that follow from the purpose of a small causes court: no settlement of issues, because the procedure is meant to be summary; no execution against immovable property, because such a court is not equipped for it; and no appeal, which is the point of the next section.
Order LI: Presidency Small Cause Courts
Rule 1: the provisions of the Code shall not extend to any suit or proceeding in any Court of Small Causes established in the Presidency towns, save as provided by sections 8 and 24 and the other provisions there mentioned, and by the Presidency Small Cause Courts Act 1882.
Chartered High Courts and Small Cause Courts
Again, the effect is that the Presidency Small Cause Courts run on their own statute, with the Code applying only through the doorways the Code itself leaves open.
Where small causes appear elsewhere in the Code
This is the practical value of the topic, because the small-cause distinction is not confined to Order L. It surfaces at four points already covered in this book, and an answer that gathers them shows command of the subject.
Section 9 and the exclusion of jurisdiction. The nature of the suit decides whether a Court of Small Causes may try it at all. See [Jurisdiction of Civil Courts].
Section 15, the lowest competent court. A suit within the cognizance of a Court of Small Causes belongs there. See [Place of Suing].
Order XX Rule 4(1). A judgment of a Court of Small Causes need not contain more than the points for determination and the decision thereon, whereas any other judgment needs a concise statement of the case, the points, the decision and the reasons. See [Judgment and Decree].
Sections 96(4) and 102, the appeal bars. In a suit of the nature cognisable by a Court of Small Causes where the value does not exceed ten thousand rupees, a first appeal lies only on a question of law, under section 96(4). And no second appeal at all lies where the original suit was for the recovery of money not exceeding twenty-five thousand rupees, under section 102. See [Appeals from Original Decrees] and [Appeals from Appellate Decrees].
Those four, taken together, are the whole practical significance of the small-cause jurisdiction under this Code: a narrower class of suits, a shorter judgment, a summary procedure, and a heavily restricted right of appeal.
A worked example
A claim for Rs. 9,000 on an unpaid bill is filed.
Where does it belong? It is a suit of a nature cognisable by a Court of Small Causes, and by section 15 it goes to the court of the lowest grade competent to try it.
What does the judgment look like? Order XX Rule 4(1): it need not contain more than the points for determination and the decision on them. No concise statement of the case and no reasons are required, unlike the judgment of any other court.
Can the losing party appeal? Section 96(4): in a suit of the nature cognisable by a Court of Small Causes where the value does not exceed ten thousand rupees, an appeal lies only on a question of law. A complaint about the findings of fact goes nowhere.
Chartered High Courts and Small Cause Courts
Can he go further? Section 102 bars a second appeal in money suits up to Rs. 25,000 entirely.
Is he without any remedy on jurisdiction? No. Section 3 makes a Court of Small Causes subordinate to the High Court, so revision under section 115 is available where the court exercised a jurisdiction it did not have, failed to exercise one it had, or acted illegally or with material irregularity. That is the practical route in these cases, and it is why the small-cause chapters and the revision chapter belong together.
Change the court. Suppose the suit is on the original side of the Bombay High Court. Order XLIX: the specified provisions of the Code do not apply, and by Rule 2 nothing in the Code limits that Court's own rules or its practice, except as expressly provided.
What it does not mean
These Orders do not create the small-cause jurisdiction. That comes from the Provincial Small Cause Courts Act 1887 and the Presidency Small Cause Courts Act 1882. The Orders disapply parts of the Code.
A Chartered High Court on its original side is not outside the Code entirely. Order XLIX disapplies specified provisions and preserves that Court's own rules and practice.
A small causes decree is not unchallengeable. A first appeal lies on a question of law within section 96(4), and revision under section 115 is available because such a court is subordinate to the High Court by section 3.
A short judgment is not a defective one. Order XX Rule 4(1) expressly permits it for a Court of Small Causes.
Which High Courts this Part reaches: sections 116 to 120
Section 116: this Part applies only to High Courts not being the court of a Judicial Commissioner.
Section 117: save as provided in this Part or in Part X or in rules, the provisions of the Code apply to such High Courts.
Section 118, execution before costs are taxed: where such a High Court considers it necessary that a decree passed in its original civil jurisdiction be executed before the amount of costs can be ascertained by taxation, it may order that the decree be executed forthwith, except as to so much of it as relates to the costs; and that part may be executed separately once the costs have been taxed.
Section 120: sections 16, 17 and 20 do not apply to a High Court in the exercise of its original civil jurisdiction. That is a real point and it belongs with [Place of Suing]: the ordinary rules on where a suit is instituted do not govern the original side of a chartered High Court, whose jurisdiction comes from its Letters Patent instead.
Chartered High Courts and Small Cause Courts
Quick revision
Section 3: the District Court is subordinate to the High Court, and every inferior Civil Court and every Court of Small Causes is subordinate to both. That is what makes reference and revision available.
Section 6: nothing in the Code gives a Court jurisdiction beyond its pecuniary limits. Section 7: specified provisions do not extend to Provincial Small Cause Courts. Section 8: the Code does not extend to Presidency Small Cause Courts save as expressly provided.
Order XLIX: specified provisions do not apply to a Chartered High Court on its ordinary or extraordinary original civil jurisdiction, and nothing in the Code limits that Court's own rules or practice except as expressly provided. Order L: the Code does not extend to Provincial Small Cause Courts as regards excepted suits, execution against immovable property, the settlement of issues, and the other matters listed. Order LI: the Code does not extend to Presidency Small Cause Courts save as provided by sections 8 and 24 and the Presidency Small Cause Courts Act 1882.
Where it matters elsewhere: section 9 on cognizance; section 15 on the lowest competent court; Order XX Rule 4(1), a small-cause judgment needs only the points and the decision; section 96(4), first appeal only on a question of law up to Rs. 10,000; section 102, no second appeal in money suits up to Rs. 25,000.
Test yourself
1. Which courts are subordinate to the High Court for the purposes of the Code? Under section 3, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and to the District Court.
2. Does the Code apply to the Presidency Small Cause Courts? Not generally. Section 8 provides that, save as provided in sections 24, 38 to 41, 75(a), (b) and (c), 76, 77, 157 and 158 and by the Presidency Small Cause Courts Act 1882, the Code shall not extend to any suit or proceeding in a Court of Small Causes established in the towns of Calcutta, Madras and Bombay, and Order LI is to the same effect.
3. What is the position of a Chartered High Court on its original side? Under Order XLIX the specified provisions of the Code do not apply to it in the exercise of its ordinary or extraordinary original civil jurisdiction, and nothing in the Code is deemed to limit or affect that Court's own rules or to interfere with its practice, except so far as expressly provided.
Chartered High Courts and Small Cause Courts
4. What need a judgment of a Court of Small Causes contain? Under Order XX Rule 4(1), no more than the points for determination and the decision thereon. Judgments of other courts must contain a concise statement of the case, the points for determination, the decision and the reasons for it.
5. What appeal lies from a decree in a small-cause type suit? Under section 96(4), where the suit is of a nature cognisable by a Court of Small Causes and the amount or value of the subject matter does not exceed ten thousand rupees, an appeal lies only on a question of law. Under section 102 no second appeal lies at all where the original suit was for the recovery of money not exceeding twenty-five thousand rupees.
6. Is revision available against a Court of Small Causes? Yes, where no appeal lies to the High Court, because section 3 makes such a court subordinate to the High Court, so section 115 applies on the three jurisdictional grounds.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.