Skip to content


Raghunath Das Vs. Sukha and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All214
AppellantRaghunath Das
RespondentSukha and anr.
Excerpt:
.....court in holding that the expression 'a court of small causes' in section 24 (4) of the code of civil procedure does include courts invested with small cause court jurisdiction, as well as courts constituted under act ix of 1887. the legislature apparently intended that the district court should have power to make an order of transfer such as has been made in the present case, trusting to the discretion of that court, and its knowledge of local conditions, not to make an order of transfer to a court not competent to make a proper exercise of the special powers which an order of transfer carries with it in respect of particular cases so transferred. and it is to be observed that section 33 of the provincial small cause courts act, which was not referred to in argument because we had no..........court or the district court, and then in sub-section (4) it is enacted that 'the court trying any suit transferred or withdrawn under this section from a court of small causes shall for purposes of such suit be deemed to be a court of small causes.' the question which we have to determine is whether the words, 'a court of small causes' as used in this sub-section mean only courts constituted under the provincial small cause courts act, 1887, or include also courts exercising the jurisdiction of a court of small causes under that act. we have been referred to a good deal of case-law on the subject; but it is worth while to note at the very outset that many of the decided cases have no direct bearing on the question before us, because they do not involve any question as to the.....
Judgment:

Piggott, J.

1. This is an application in revision which has been referred to a bench of two Judges owing to the difficulty of the point of law raised. The facts are given in the referring order of Mr. Justice Rafiq. A suit was instituted in the court of the Subordinate Judge of Muttra. This was also a court invested with the jurisdiction of a Court of Small Causes, within the meaning of Sections 32, 33, 34 and other sections of the Provincial Small Cause Courts Act, IX of 1887. The suit in question was of a Small Cause Court nature, that is to say, had it been tried in the court in which it was originally instituted it would have been tried as a Small Cause Court suit by a court lawfully empowered to try it as such, and would have been subject to the provisions of the Provincial Small Cause Courts Act as to the right of appeal. The suit in question, however, along, with -certain others, was transferred l>y an order of the District Judge to the court of the Munsif of Muttra for disposal. This was not at that time a court invested with the jurisdiction of a Court of Small Causes. In his order of transfer the learned District Judge makes an express reference to the provisions of Section 24, Clause (4), of the Code of Civil Procedure. There can be no doubt, therefore, that the court which ordered the transfer understood that the provisions of this sub-section would apply to the case and deliberately intended that it should be tried by the learned Munsif as a Court of Small Causes. That court having decreed the plaintiff's claim, the defendants appealed to the District Judge and the appeal came up for disposal before the Subordinate Judge of Muttra. He held that, by reason of the provisions of Section 24, Clause (4), aforesaid, the suit had been tried by a court which must, for the purpose of that suit, be deemed to have been a Court of Small Causes, and he accordingly held that no appeal lay. The defendants have brought the matter before this Court by means of an application for revision. They contend that the learned Subordinate Judge was wrong; that an appeal did lie to his court, and that he has erroneously refused to exercise a jurisdiction vested in him by law. It is worth while to quote the words of the sub-section with which we are dealing. Section 24 of the Code of Civil Procedure confers certain powers of transfer on the High Court or the District Court, and then in Sub-section (4) it is enacted that 'the court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall for purposes of such suit be deemed to be a Court of Small Causes.' The question which we have to determine is whether the words, 'a Court of Small Causes' as used in this sub-section mean only courts constituted under the Provincial Small Cause Courts Act, 1887, or include also courts exercising the jurisdiction of a Court of Small Causes under that Act. We have been referred to a good deal of case-law on the subject; but it is worth while to note at the very outset that many of the decided cases have no direct bearing on the question before us, because they do not involve any question as to the interpretation of Section 24 of the present Code of Civil Procedure, Act V of 1908, or of the corresponding Section 25 of Act XIV of 1882. For instance, in Shiam Behari Lal v. Kali (1914) 12 A.L.J. 109, and also in Sarju Prasai v. Mahadeo Prasad (1915) I.L.R. 37 All. 450, question to be determined had to do with the case of a Munsif not invested with Small Cause Court powers succeeding to the office of a Munsif who was so invested. No question arose in either of these cases as to the interpretation of Section 24 of the Code of Civil Procedure. Again in Dulal Chandra Deb v. Ram Narain Deb (1914) I.L.R. 81 Calc. 1057, the question for determination was essentially similar to that in the above two cases, and the references made to the provisions of Section 24 of the Code of Civil Procedure, can only be regarded as substantially obiter dicta. There is an older case of this Court, that of Mangal Sen v. Rup Chand (1891) I.L.R. 13 All. 324, in which the facts were more nearly similar to those now before us and in which reference was made to the provisions of Section 25 of the Code of Civil Procedure of 1882, The learned Judges do not base their decision entirely upon the consideration of the terms of this section, but the case has always been quoted as an authority for the proposition that the words 'a Court of Small Causes' as used in Section 24(4) of the present Code of Civil Procedure, or in Section 25 of Act XIV of 1882, do include courts invested with Small Cause Court jurisdiction. The only decision directly to the contrary seems to be that of the Bombay High Court in Ramchandra v. Ganesh (1898) I.L.R. 23 Bom. 382. It has been contended before us that the authority of the decision in Mangal Sen's case has been shaken by the more recent pronouncements of this Court to which reference has been made, and that the authority of the decision of the Bombay High Court, with the reasoning upon which that decision is based, as also the line of reasoning adopted by the learned Judges of the Calcutta High Court in Dulal Chandra Deb v. Ram Narain Deb (1914) I.L.R. 81 Calc. 1057, should prevail with us. The proposition contended for is that the words 'a Court of Small Causes' in the sub-section in question mean a court properly and strictly so called and do not include a court invested with the jurisdiction of a Court of Small Causes. It seems to us that the plain prima facie meaning of the words, as they appear in Section 24 of the Code of Civil Procedure, is against this contention, and that the burden lies on those who maintain it, The learned Judges of the Calcutta High Court lay great stress upon the argument that the Legislature cannot be held to have intended that the mere order of a District Judge should have the effect of investing the presiding officer of a particular court with certain powers, when such powers can only be conferred ordinarily by an order of the Local Government. To this argument there seems to be a two-fold answer. To begin with, the provisions of Section 24, Sub-section (4) of the Code of Civil Procedure do mean something. On any interpretation, they do mean at least this, that if a suit is pending in a court constituted under the provisions of the Small Cause Courts Act of 1887, the District Court has power to transfer that suit to another court which is neither a court constituted under that Act, nor a court invested with the jurisdiction of a Court of Small Causes, and that the court to which the case is transferred will then be deemed, by virtue of the order of transfer, to be a Court of Small Causes for the purpose of that particular suit. It would seem therefore that the power which the learned Judges of the Calcutta High Court consider to be 'nothing else than disastrous' does in fact exist in certain cases, and the only question is whether it exists in others. In the second place, the provisions of Section 24 (4) of the Code of Civil Procedure are strictly limited in extent. Their operation is limited to particular bases transferred by special order of the High Court or of the District Court. It is not unreasonable to suppose that the Legislature felt considerable confidence in the district courts, in consideration more particularly of the intimate acquaintance which such courts are likely to possess with the personnel and the working of all courts subordinate to them; so that it was not deemed improper to invest district courts with powers of transfer in respect of suits of a Small Cause Court nature and to permit that power to be exercised for the transfer of a case from a Court of Small Causes to a court which is neither a Court of Small Causes constituted under Act IX of 1887, nor a court invested with the jurisdiction of a Court of Small Causes. It remains a matter of discretion with the district court whether or not to pass an order of transfer in any suit; and the apparent intention of the Legislature was that, if a Small Cause Court suit is so transferred, it should not change its nature by reason of the transfer, but should continue to be tried as a Small Cause Court suit and subject to all the legal incidents of such a suit. We find there is one case directly in point which is in opposition to the view of the Bombay High Court and follows in principle the older decision of this Court in Mangal Sen's case (1891) I.L.R. 13 All. 324. This is the case of Sankararama Aiyar v. Padmanabha Aiyar (1912) 23 M.L.J. 373. The Bombay case of Rimchandra v. Ganesh (1898) I.L.R. 23 Bom. 382 and the Calcutta case already referred to are therein expressly dissented from, and the principle laid down by the Allahabad High Court in Mangal Sen's case (1891) I.L.R. 13 All. 324 is approved. The learned Judges of the Bombay High Court purport to base their decision upon a comparison of the wording of certain sections in the Provincial Small Cause Courts Act, 1887, with the provisions of the Code of Civil Procedure now reproduced in Sections 7 and 24 of Act V of 1908, They point out, truly enough, that Act IX of 1887 draws a clear distinction between Courts of Small Causes which are such exclusively and for all purposes, and courts which are invested with the jurisdiction of a Court of Small Causes. They then refer to the wording of Section 5 of the former Code of Civil Procedure (Act XIV of 1882). That section refers to 'Courts of Small Causes constituted under Act IX of 1887' and 'all other courts exercising the jurisdiction of a Court of Small Causes' as two different kinds or descriptions of Court. From this the learned Judges argue that when, in a later section, reference is made to 'a Court of Small Causes,' those words should be read as if the entire expression 'a Court of Small Causes constituted under Act IX of 1887' had been used, and that the Legislature did not intend to include in that expression other courts exercising the jurisdiction of a Court of Small Causes. The point is a fine one, but it would certainly appear as if any force it may ever have possessed has been greatly weakened by a slight alteration in the wording of the present Code. The section corresponding to Section 5 of Act XIV of 1882 is Section 7 of Act V of 1908. Instead of speaking of 'Courts of Small Causes constituted under Act IX of 1887,' the new Code speaks of 'courts constituted under the Provincial Small Cause Courts Act, 1887, or courts exercising the jurisdiction of a Court of Small Causes under that Act.' If any inference is to be drawn from the wording of this section, one would rather be inclined to suppose that when, in a later section, i.e., Section 24 (4), the general expression 'a Court of Small Causes' is used, the intention of the Legislature was to make it an expression inclusive of the two classes of courts referred to in Section 7. On the whole therefore, upon a consideration of the provisions of the Code of Civil Procedure and of Act IX of 1887, and of all the various authorities to which reference has been made, we think that the view on which the learned Subordinate Judge acted in the present case was correct. We agree with the learned Judges of the Madras High Court in holding that the expression 'a Court of Small Causes' in Section 24 (4) of the Code of Civil Procedure does include courts invested with Small Cause Court jurisdiction, as well as Courts constituted under Act IX of 1887. The Legislature apparently intended that the District Court should have power to make an order of transfer such as has been made in the present case, trusting to the discretion of that court, and its knowledge of local conditions, not to make an order of transfer to a court not competent to make a proper exercise of the special powers which an order of transfer carries with it in respect of particular cases so transferred. There seems therefore no foundation for the plea on which this revisional application is based and we dismiss it accordingly, but without costs, as the opposite side is not represented.

Walsh, J.

2. It is desirable to emphasize that we are dealing with a case of transfer and not with a case of succession, on which most of the decided cases have turned, and we are not differing from the decisions in Volumes 12 of the Allahabad Law Journal and 87 I.L.R. Allahabad, referred to above. On a point of, practice of this kind it is desirable to avoid differences. But as the Madras High Court has differed irretrievably from the Bombay High Court, it is impossible for us not to differ from one of them. It seems to me that the distinction between a Court of Small Causes and a court invested with the jurisdiction of a Court of Small Causes which is preserved in the Provincial Small Cause Courts Act has no bearing upon the question of transfer at all. And it is to be observed that Section 33 of the Provincial Small Cause Courts Act, which was not referred to in argument because we had no argument on the other side, distinctly provides that a court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall for the purpose of that Act and the Code of Civil Procedure be deemed to be different courts. As there is no such distinction provided between a Court of Small Causes and a court exercising the jurisdiction of a Small Cause Court, the inference would be that they were not intended to be different courts for the purposes of the Code of Civil Procedure. Finally, one of the principal arguments addressed to us was that the result of our decision would be to invest a court, or rather an individual, with jurisdiction to decide unappealable cases which the Legislature intended that he should not try. But that argument, which sounds plausible enough, deals with the question of the court or person to whom a suit is to be transferred, The section we are construing deals with the court from which a suit is to be transferred, and I am unable to see any reason either in good sense, or derived from an examination of the rest of the legislation on the subject, why in respect of this matter there should be any difference between a suit which is to be tried as a Small Cause Court suit by a court invested with the jurisdiction of a Small Cause Court and a suit which is to be tried by a Court of Small Causes constituted under the Act.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //