1. This is an application in revision against a decree of a learned Munsif exercising the powers of a Judge, Small Cause Court at Pilibhit.
2. It appears that the applicant who was the plaintiff in the Court below ordered the defendants respondents, a limited Company trading in Calcutta, to send him some paint 'per goods train at a cheaper rate.' The defendants insisted on payment of a portion of the price beforehand and, according to the plaintiff's case, the money was sent to them on the 29th of April 1924. Goods, alleged to correspond to the goods ordered, were consigned at the Railway Station at Howrah on the 9th of May 1924. The railway receipt which was in favour of the defendants themselves was endorsed in favour of the plaintiff. The goods arrived, it is said, rather late (we do not know the exact date) and the plaintiff refused to take delivery of the same on the ground that it reached too late to be of use to him. The plaintiff thereupon brought the suit for recovery of the price paid, viz., Rs. 44, and for recovery of Rs. 20 damages. The suit was decided ex-parte. But on the application of the defendants the ex-parte decree was set aside and the suit was re-heard. The learned Judge found that there was no substance in the claim, that the suit was a frivolous one and he accordingly dismissed the suit and awarded to the defendants a sum of Rs. 30 as extraordinary costs under Section 35(A) of the Civil P.C.
3. It is contended for the plaintiff that on the merits of the case the suit ought to have been decreed, that the learned Munsif had no jurisdiction to make an order for extra costs and that the ex-parte decree should not have been set aside by the learned Munsif.
4. Taking the third point first, it appears that two applications had to be made for setting aside the ex-parte decree. When the first application was made the decretal amount was not deposited forthwith and the application was dismissed on this very ground. A second application was made within the period of limitation with the request that the money already in Court should be treated as sufficiently good security. I think the learned Judge of the Small Cause Court was perfectly justified in treating the money in Court as good security and setting aside the ex-parte decree.
5. On the merits of the case there is hardly much to be said. The plaintiff orders were that goods were to be sent per goods train. The defendants did all that lay in their power to enable the plaintiff to obtain delivery of the goods when they arrived at Pilibhit. Section 91 of the Contract Act is clear on the point and the illustration leaves no room to doubt that this rule of law was entirely applicable. There are, therefore, no merits in the main case.
6. The question of jurisdiction is based on Section 2, Clause (2) of Act IX of 1922. It is urged that an officer who has been permitted to exercise the powers of a Judge, Small Cause Court, under the Provincial Small Cause Courts Act of 1887, is not entitled to exercise the powers of granting costs under Section 35(A) of the Civil P.C. unless he is vested with a jurisdiction up to Rs. 250. The High Court may, however, empower any such officer to award such costs. It is nobody's case that Mr. Aijaz Husain,the learned Judge was so empowered by the High Court. I have ascertained from the office that he exercised jurisdiction as a Judge Small Cause Court, up to Rs. 100 only. The parties are in the circumstances at one that he could not have granted extra costs under Act IX of 1922.
7. The question, however, is raised whether this Court should interfere under the provisions of Section 25 of the Provincial Small Cause Courts Act, in view of the fact that the applicant could have appealed under Section 24 of the Act to the District Judge. It is true that the exercise of the right of interference under Section 25 of the Provincial Small Cause Courts Act does not depend on the question whether an appeal lies or not. Still it is a matter for consideration whether, when there is a speedy remedy open to a party, he should be allowed to come up in revision and drag the opposite party to the High Court where the expanse of engaging a counsel must be greater than in the Mofussil. On the merits, the applicant has no case. On a moat frivolous suit, he dragged the defendants from Calcutta all the way to Pilibhit to answer a claim which had no basis either in morality or in law. The amount of compensation awarded to the defendants was hardly an adequate compensation for all the trouble and expanses undergone by them. In the circumstances I do not think that this Court is bound to exercise its jurisdiction under Section 25 of the Provincial Small Cause Courts Act, simply because the Judge may have been in error.
8. The result is the application in revision fails and is hereby dismissed. The applicant must pay the costs of the respondents.