Lawrence Jenkins, K.C.I.E., C.J.
1. This application arises out of proceedings under Chapter VII of the Presidency Small Cause Courts Act.
2. An order was made under that Chapter in favour of the opponent before us.
3. The applicant before us on the 17th of April applied for a rule to show cause why that order should not be set aside on the ground that he was not served with a summons before the order was passed.
4. A rule was granted but it was subsequently discharged by the Fourth Judge of the Small Cause Court.
5. From the memo, now furnished to us, the learned Judge represents that he was influenced, first, by the opinion held by him in deference to previous decisions in the Small Cause Court that Section 108 of the Civil Procedure Code did not apply; secondly, that even if Section 108 applied, any order by him would be infructuous; and thirdly, that the Court, not being a Court of Record, had not power to set aside an ex parte order, even though it was wrongfully obtained.
6. This last opinion is in direct opposition to the ruling of the Full Bench of the Calcutta High Court in Bibee Tulsiman v. Harihar Mahato (1904) 32 Cal. 253 F.B., where it was held in reference to a Subordinate Judge that the Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aide upon a proper cause being substantiated.
7. In our opinion that view is correct and the learned Judge was in error so far as his third reason goes.
8. We think too that it is erroneous to suppose that Section 108 of the Code of Civil Procedure has no application to proceedings under Chapter VII of the Presidency Small Cause Courts Act.
It is quite true that it has not a direct application, because proceedings under Chapter VII are not a suit, nor is an adjudication in the proceedings a decree.
9. But having regard not only to Section 647 of the Code of Civil Procedure but also to Section 48 of the Presidency Small Cause Courts Act and also to the decision of the Full Bench of -the Calcutta High Court, we feel no doubt that the Judge had power to set aside the ex parte order.
10. The second reason given by the learned Judge at first sight creates difficulty in the way of our interfering, because it would seem that he exercised a discretion, but that discretion was exercised on the basis that a new tenant had been already in occupation of the same shop.
11. It is asserted by the Advocate for the applicant and is conceded by the Advocate for the opponent that there is nothing on the record that substantiates that stertement; and therefore, so far as the discretion of the learned Judge is based upon that statement it has no legal foundation. It may be that it is true. If so, it must be proved in the usual way, and if it is proved, then it must be considered having regard to the decisions, what the effect is of this tenancy.
12. But the result is that we must make the present rule absolute and send back the case to the fourth Judge in order that he may deal with the application according to law.
13. Costs will be costs in the application before the Fourth Judge.