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Pitamber Vajirshet Vs. Dhondu Navlapa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom486
AppellantPitamber Vajirshet
RespondentDhondu Navlapa
Excerpt:
jurisdiction - appeal--suit cognizable by a court of small causes--act xi of 1865, sections 2, 6, 12, 21--act xiv of 1869, section 28--subordinate judge invested with small cause powers--final decision. - .....of a small cause, but which the subordinate judge, though invested with the jurisdiction of a judge of a small cause court, tried according to the rules of the code of civil procedure. an appeal was made to the district court, which reversed the subordinate judge's decree and awarded the sum claimed, rs. 5, with costs.2. to the objection now raised, that no appeal lay to the district court, it is answered that as the subordinate judge did not use the procedure of act xi of 1865 in trying the case, he must be held to have tried it under his ordinary jurisdiction. hence it is urged it was not a case to which section 21 of the act or indeed any section of it applied, and, therefore, under section 540 of the code of civil procedure, the appeal was properly admitted. but though section.....
Judgment:

West, J.

1. In this case the plaintiff sued for damages for the wrongful removal of a tree. The Court of first instance rejected his claim, which was in itself of the nature of a small cause, but which the Subordinate Judge, though invested with the jurisdiction of a Judge of a Small Cause Court, tried according to the rules of the Code of Civil Procedure. An appeal was made to the District Court, which reversed the Subordinate Judge's decree and awarded the sum claimed, Rs. 5, with costs.

2. To the objection now raised, that no appeal lay to the District Court, it is answered that as the Subordinate Judge did not use the procedure of Act XI of 1865 in trying the case, he must be held to have tried it under his ordinary jurisdiction. Hence it is urged it was not a case to which Section 21 of the Act or indeed any section of it applied, and, therefore, under Section 540 of the Code of Civil Procedure, the appeal was properly admitted. But though Section 28 of Act XIV of 1869 does not, when jurisdiction is given under it, necessarily divide the Court into two separate Courts, it still creates an additional and distinct jurisdiction. (Under the recent Act IX of 1887, Section 33 the Court is to be regarded as two Courts in such cases.) The Small Cause Court jurisdiction is in its nature exclusive. This appears from Section 2 of Act XI of 1865, from Section 6 of the same Act, which enumerates the suits cognizable by a Small Cause Court, and from Section 12, which says no suit of these kinds shall be tried by any other Court where a Small Cause Court exists. When Section 21 says that 'in suits tried under this Act, all decisions and orders shall be final,' it means suits tried under this Act according to the jurisdiction created by Sections 2 and 6. A suit taken cognizance of under these sections does not cease to be a suit tried under the Act, because of some divergence from its summary procedure. A surplusage of form and elaborateness does not change the character of the decision for the purpose of its finality.

3. The suit was filed in a Court having a double jurisdiction. But the jurisdiction under which cognizance could be taken of the claim, was one and one only, not a double or an alternative jurisdiction. Having the Small Cause Court jurisdiction the Subordinate Judge must have dealt with this case under that jurisdiction, even if he was not quite alive to it at the time Dr. Groenvelt v. Dr. Burwell 1 Ld. Raym., p. 454. We must ascribe his acts to an actual existing authority under which they would have validity rather than to one under which they would be void. A similar principle applies to the District Court, and if we could find that there was authority in that Court to receive an appeal in this case, a mere error in the subsidiary proceedings would not cancel that jurisdiction But the suit having really been a small cause, no appeal lay; there was an absolute want of jurisdiction in the District Court, and the Act VII of 1887, on Section 11 of which Mr. Shamrav relied, not having come into operation when the appeal was tried, we must reverse the decree of the District Court, and restore that of the Court of first instance.

4. The parties severally are to bear their own costs here and in the District Court.


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