Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us under Section 622 of the Civil Procedure Code, and the complaint is that the Small Cause Court, acting under Section 38, has committed an error in jurisdiction.
2. The facts of the case, as alleged by the plaintiff, are that he advanced a sum of money to the firm of Dastur and Davar, and as security for that advance took a promissory note. The promissory note is signed in the handwriting of one Dhanjisha Hormasji Davar, who at that time was undoubtedly a member of the firm of Dastur and Davar. The other member of the firm was the present defendant, Dastur Kaikhushru Dastur. Prior to the suit Dhanjisha died, and so proceedings were taken against the surviving partner alone.
3. The record before us does not contain any summons, but a letter addressed to the defendant under Section 91 of the Civil Procedure Code, in lieu of a summons.
4. That letter is based upon an affidavit made by the plaintiff on the 4th September 1904, and this affidavit, as far as we can learn from the record and the statement made to us by the counsel and pleader appearing in the case, is the only document which contains the claim as formulated by the plaintiff himself.
5. We are told that according to the practice of the Court the letter, though based on that affidavit, was prepared not by the plaintiff, but by the Court Officer.
6. Now the letter treats the claim of the plaintiff as based only on the promissory note.
7. The affidavit, however, is not thus limited; for, though it states that the defendant is indebted to the plaintiff in the sum of Rs. 400, being the balance of the amount for the promissory note of Rs. 500, there is the allegation that the amount was borrowed for the purposes of the firm.
8. The case came, in the first instance, before the Fifth Judge of the Small Cause Court, who passed a decree in plaintiff's favour.
9. The matter was then taken to the Small Cause Court under Section 38 of the Presidency Small Cause Courts' Act, with the result that this decree was reversed and the suit dismissed.
10. The ground of this decision was that the suit was brought on a promissory note against a person by whom it was not made, and that such a suit was bad in law. Mr. Saher, for the plaintiff, has contended that the Small Cause Court exercised a jurisdiction it did not possess in dealing with the matter in the way it did, and urged that under Section 38 of the Presidency Small Cause Court Act, it could only exercise revisional jurisdiction. By that it was meant that it would only act in revision within the limits within which this High Court acts under Section 622 of the Code of Civil Procedure.
11. In my opinion, that contention cannot be supported. Section 38 of the Presidency Small Cause Court Act is a part of Chapter VI, and that Chapter is headed 'New trials and appeals.' Section 38 itself is in the widest possible terms, and I can find nothing in that section that supports the contention that the powers of the Small Cause Court under Section 38 are limited in the manner suggested.
12. It has next been urged that in taking the view it did of the signature on the promissory note, the Court committed a gross error.
13. But that would not enable us to interfere under Section 622. Then it was argued that the Court in holding that only the maker of a promissory note was liable, had failed to give effect to the provisions of the Contract Act, which make a principal liable for the acts of his agent.
14. In this connection reference was made to two cases reported in I.L.R. 28 Mad. 244.
15. In the first place I am not at present prepared to say that the Small Cause Court did commit an error in holding as it did. But even if the Court did err in this respect, still that would not entitle the plaintiff to claim relief from us under Section 622.
16. Thus far, therefore, the plaintiff has not made out a case for interference.
17. But there is a ground on which, I think, we ought to set aside a decree of dismissal.
18. The decision of the Small Cause Court under Section 38 of the Presidency Small Cause Court Act, proceeded so far as I can judge from what has been stated before us, and the explanation of the Chief Judge wholly and solely upon the fact that the defendant was not the maker of the promissory note.
19. If, and so far as, the conclusion that he was not the maker of the promissory note, was based on the translation obtained from the High Court of the signature on that promissory note, I think there was a material irregularity in the procedure of the Court. For, the translation obtained from the High Court was not before the Fifth Judge at the original trial, nor, as far as I can make out from the record in this case, was it before the Full Court at the time of the hearing; and it was only after that Court had adjourned for judgment, that this translation was brought to the notice of the Court.
20. It is clear, the Court had no right to act on that document if, in fact, if came before it in this manner, and under these circumstances, without giving the parties a full opportunity of discussing it, and if necessary, adducing evidence to meet the contention supported by the High Court translation. But it is on another ground that I think we should interfere.
21. I have stated the ground on which the Full Court reversed the decree of the Fifth Judge.
22. But in dismissing the suit upon this ground it was incumbent upon the Court to consider the further right of suit that the plaintiff alleged against the defendant.
23. It is no answer to say that this ground of suit was not set out in the letter issued under Section 91, if as we have been told, that document was prepared by the Court and not by the plaintiff.
24. It was necessary to have regard to the mode in which the plaintiff himself framed his claim; and as I have pointed out, the affidavit distinctly alleges that the amount secured by the promissory note was borrowed for the purposes of the firm. The Court had to consider whether that allegation was made out or not. If it was made out, then, the plaintiff was entitled to the relief against the defendant. The existence of the promissory note did not prevent the plaintiff, in the circumstances, from suing on the debt; and in disregarding that aspect of the case, the Court appears to me to have acted with material irregularity.
25. We must, therefore, make the rule absolute and send back the case for determination by the Fifth Judge of the Small Cause Court in the light of these remarks.
26. Costs hitherto incurred will be costs in the suit.
1. I entirely concur with the whole judgment just delivered, but I particularly wish to associate myself with those observations of my Lord the Chief Justice, in which he disposes of the view for which there seem to be some authority in the books that the Powers of a Small Cause Court acting under Section 38 of the Presidency Small Cause Courts Act, are powers of revision only, and are strictly defined and limited by the terms of Section 622 of the Code of Civil Procedure.