Case Note & Summary
The case involved two writ petitions placed before a larger bench due to a conflict of decisions by single judges of the Bombay High Court regarding the maintainability of revision under Section 115 of the Code of Civil Procedure, 1908 (CPC) against decrees passed under Section 26A of the Provincial Small Causes Courts Act, 1887. The learned single judge had framed a question whether such decrees can be challenged by revision under Section 115 CPC, by writ under Article 226/227 of the Constitution, or under Section 25 of the Provincial Small Causes Courts Act. The court analyzed the scheme of the Provincial Small Causes Courts Act, noting that Section 26A provides for a special procedure for summary trials, and Section 25 provides for revision only against orders, not decrees. The court held that a decree under Section 26A is not amenable to revision under Section 115 CPC because the Small Causes Court is not a court subordinate to the High Court for the purposes of revision under the CPC. However, the court clarified that the High Court's power under Article 227 of the Constitution is not barred by the availability of an alternative remedy, and a writ petition under Article 227 is maintainable against such decrees. The court also held that Section 25 of the Act does not apply to decrees. The court answered the reference accordingly, holding that revision under Section 115 CPC is not maintainable, but writ under Article 227 is maintainable.
Headnote
A) Civil Procedure - Revision - Maintainability - Section 115 CPC vs. Section 26A Provincial Small Cause Courts Act, 1887 - The question was whether a decree under Section 26A of the Provincial Small Cause Courts Act, 1887 can be challenged by revision under Section 115 CPC or by writ under Article 227 - Held that revision under Section 115 CPC is not maintainable because the Small Causes Court is not a court subordinate to the High Court for purposes of revision; however, writ under Article 227 is maintainable as the High Court has superintendence over all courts. (Paras 1-10)
B) Small Cause Courts - Remedy - Section 25 Provincial Small Cause Courts Act, 1887 - The remedy under Section 25 of the Act is available only against orders, not against decrees passed under Section 26A - Therefore, a decree under Section 26A cannot be challenged under Section 25. (Paras 5-8)
C) Constitutional Law - Writ Jurisdiction - Article 227 of Constitution of India - The High Court's power under Article 227 is not barred by availability of alternative remedy; it is a constitutional power that can be exercised in appropriate cases even if revision is not maintainable. (Paras 9-10)
Issue of Consideration
Whether the judgment and decree passed by the Court under the provisions of Section 26A of the Provincial Small Causes Courts Act, 1887 can be challenged in revision under Section 115 of the Code of Civil Procedure or under Article 226 and/or Article 227 of the Constitution of India or under Section 25 of the Provincial Small Causes Courts Act, 1887?
Final Decision
The court answered the reference by holding that revision under Section 115 of the Code of Civil Procedure is not maintainable against a decree passed under Section 26A of the Provincial Small Causes Courts Act, 1887. However, a writ petition under Article 227 of the Constitution of India is maintainable. The remedy under Section 25 of the Act is not available against decrees.
Law Points
- Revision under Section 115 CPC not maintainable against decree under Section 26A of Provincial Small Cause Courts Act
- 1887
- Writ under Article 227 of Constitution is maintainable
- Section 25 of Provincial Small Cause Courts Act
- 1887 provides remedy only against orders not decrees
Case Details
2016 LawText (BOM) (12) 107
Writ Petition No.5552/2013 and Writ Petition No.3431/2013
B. R. Gavai, V. M. Deshpande
Mr. R. G. Kavimandan with Mr. R. L. Khapare for petitioner in WP 5552/2013; Ms V. S. Umale for petitioner in WP 3431/2013; Mr. F. T. Mirza with Mr. Anand Deshpande for respondent in WP 5552/2013; Mr. Dn. N. Dani for respondent in WP 3431/2013
Gajanan s/o Devidas Wankhare and Ashok s/o Vinayakrao Deshmukh
Mohd. Jamil Mohd. Amad and Ramkrishna s/o Eknathrao Nikhar
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Nature of Litigation
Reference to larger bench on conflict of decisions regarding maintainability of revision under Section 115 CPC against decrees under Section 26A of Provincial Small Causes Courts Act, 1887
Remedy Sought
Determination of the correct remedy available against decrees passed under Section 26A of the Provincial Small Causes Courts Act, 1887
Filing Reason
Conflict between two single judge decisions: one holding revision under Section 115 CPC not tenable, another holding writ under Article 227 not tenable due to alternative remedy of revision
Previous Decisions
Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & ors. (2005) held revision under Section 115 CPC not tenable; Dhuliabai Mana Praga and ors. vs. Manikbai Vithalrao Bhusarath (2009) held writ under Article 227 not tenable as revision is an alternate remedy
Issues
Whether a decree under Section 26A of the Provincial Small Causes Courts Act, 1887 can be challenged by revision under Section 115 CPC?
Whether such a decree can be challenged by writ under Article 226/227 of the Constitution?
Whether such a decree can be challenged under Section 25 of the Provincial Small Causes Courts Act, 1887?
Submissions/Arguments
Not mentioned in the provided text
Ratio Decidendi
A decree passed under Section 26A of the Provincial Small Causes Courts Act, 1887 is not amenable to revision under Section 115 CPC because the Small Causes Court is not a court subordinate to the High Court for the purposes of revision. However, the High Court's power under Article 227 of the Constitution is not barred by the availability of an alternative remedy, and a writ petition under Article 227 is maintainable against such decrees. Section 25 of the Act applies only to orders, not decrees.
Judgment Excerpts
Whether the judgment and decree passed by the Court under the provisions of the Section 26A of the Provincial Small Causes Courts Act, 1887 can be challenged in revision under Section 115 of the Code of Civil Procedure or under Article 226 and/or Article 227 of the Constitution of India or under Section 25 of the Provincial Small Causes Courts Act, 1887?
The learned Single Judge, while making a reference found that the learned single Judge of this Court (B. P. Dharmadhikari, J.) in the case of Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & ors.; reported in 2005 (6) Bom C.R.207 had taken a view that the revision under Section 115 of the Code of Civil Procedure would not be tenable against the order of the District Judge passed under Section 27 of the Bombay Provincial Small Cause Courts Act, 1887.
Procedural History
The writ petitions were filed before a single judge of the Bombay High Court, Nagpur Bench. The learned single judge noticed a conflict between two decisions of single judges: Dilip Bidesh (2005) holding revision under Section 115 CPC not tenable, and Dhuliabai Mana Praga (2009) holding writ under Article 227 not tenable due to alternative remedy of revision. The single judge framed a question and referred the matter to the larger bench. The Chief Justice placed the matters before the present bench.
Acts & Sections
- Code of Civil Procedure, 1908: 115
- Provincial Small Causes Courts Act, 1887: 26A, 25
- Constitution of India: 226, 227
