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Narayan Raoji Ranade Vs. Gangaram Ratanchand Marwadi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in3Ind.Cas.816
AppellantNarayan Raoji Ranade
RespondentGangaram Ratanchand Marwadi
Excerpt:
small cause suit - institution in court with small cause powers--suit registered and tried as a regular suit--appeal--jurisdiction. - .....is admitted, and indeed the record shows, that the suit was. instituted in the court of the first class subordinate judge and that at the time of institution the subordinate judge had conferred on him the powers of a small cause judge. the present suit was of the nature of a small cause and fell within that jurisdiction. but it is argued that the suit is not a small cause because it was not tried as such. it is true it was tried by the subordinate judge, first class, not under his small cause but under his ordinary jurisdiction. the reason is that at the time of its institution, the subordinate judge, first class having gone on privilege leave for twenty-one days, the joint subordinate judge, second class, who was in charge of the court, had the suit registered in the file of regular.....
Judgment:

1. It is admitted, and indeed the record shows, that the suit was. instituted in the Court of the First Class Subordinate Judge and that at the time of institution the Subordinate Judge had conferred on him the powers of a Small Cause Judge. The present suit was of the nature of a small cause and fell within that jurisdiction. But it is argued that the suit is not a small cause because it was not tried as such. It is true it was tried by the Subordinate Judge, First Class, not under his small cause but under his ordinary jurisdiction. The reason is that at the time of its institution, the Subordinate Judge, First Class having gone on privilege leave for twenty-one days, the Joint Subordinate Judge, Second Class, who was in charge of the Court, had the suit registered in the file of regular suits and not in the file of small causes. But, on that account, the Subordinate Judge, First Class, had not ceased to be a judge of the Court with small cause powers; his absence was merely temporary; he had gone on privilege leave and no locum tenens had been appointed. Hence no re-investment of his powers as a Small Cause Judge became necessary when he resumed charge of his office. He continued to be a Judge with those powers during his absence and the entering of the suit in the file of regular suits could not take it away from the category of small causes. Nor could the fact that subsequently the Subordinate Judge First Class, tried the suit under his ordinary jurisdiction deprive it of its character as a small cause : Pitamber Vajirshot v. Dhondu Navalpa 12 B. 486. Against his decree no appeal lay to the District Court and that Court's appellate decree was passed without jurisdiction. It is true no objection on the ground of want of jurisdiction was raised before the District Court but the petitioner before us is not precluded from urging that ground. Consent cannot give jurisdiction where the law does not confer it on a Court. The result is that the rule must be made absolute and the Subordinate Judge's decree restored but without costs here and in the District Court, as the petitioner allowed the appeal to be heard without objection.


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