1. This petition raises the question whether a suit of a small cause nature filed as a regular civil suit before a Judge exercising Small Cause powers can be said to have been decided by a Court of Small Causes.
2. The plaintiff who was employed as an Agricultural Adviser to the Balrampur Estate retired in the year 1944 with a cash payment of Rs. 25,000/- and a pension of Rs. 500/- per mensem. The defendant who is the owner of the Estate continued to pay the pension to the plaintiff till January 1951. Thereafter the pension was stopped and the plaintiff accordingly brought a suit for the recovery of a sum of Rs. 500/- on account of the pension which had accrued to him for the month of February 1951.
This suit was instituted as regular civil suit in the Court of the Senior Subordinate Judge of Simla who is exercising powers under the provisions of the Small Cause Courts Act. The plaintiff alleged that the suit should be tried as a regular civil suit while the defendant stated that the suit should be tried under the provisions of the Provincial Small Cause Courts Act.
The trial Court heard the suit as a regular suit and granted a decree against the defendants The latter preferred an appeal to the Court of the District Judge but owing to a compromise between the parties the District Judge permitted the plaintiff to amend the plaint and directed the trial Court to decide the case in accordance with law. The plaintiff is dissatisfied with the order and has come to this Court in revision.
3. It has been contended on behalf of the plaintiff that the value of the civil suit does not exceed Rs. 500/-, that it was triable exclusively by the Court of Small Causes and should be deemed to have been so tried, that the decree passed therein should be deemed to have been passed by a Court of Small Causes and consequently that it was not open to the District Judge to entertain an appeal from the order of the trial Court.
4. Sub-section (2) of Section 15, Provincial Small Cause Courts Act provides that subject to the exceptions specified in Schedule 2 all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. Section 16 declares that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within, the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.
Schedule 2 specifies the suits excepted from, the cognizance of the Court of Small Causes including suits for specific performance or rescission of contracts and suits relating to maintenance.
5. The present suit for the recovery of a sum of Rs. 500/- can by no stretch of meaning be deemed to be a suit for the specific performance or rescission of contract, for it is not covered by any of the clauses of Section 12, specific Relief Act, 1877, and cannot be said to fall within the ambit of the said section. Nor can the case be said to be one relating to-maintenance.
A suit for recovery of pension is not a suit relating to maintenance, for pension is a periodical allowance of money granted by Government for services rendered in the past. As the present suit has not been excepted from the cognizance of a Court of Small Causes and as it satisfies the description given in Section 15 of the statute it seems to me that the suit was triable exclusively by a Court of Small Causes.
6. The question now arises whether a small cause case which is tried as a regular civil suit alters its character of a small cause case. The answer has been furnished by the High Courts of Calcutta, Madras and Patna. It has been held repeatedly that where a judicial Officer Invested with Small Cause Court jurisdiction tries a suit which he might have tried under the summary procedure, in the ordinary manner, the character of the suit is not altered and the decree is not appealable to the Court of District Judge. Indra Chandra Mukherjee v. Srish Chandra Banerjee, 40 Cal 537 (A), Kollipara Seetapathy v. Kanklpati Subbayya, 33 Mad 323 (FB) (B) and Somar 6ao v. Balchand, AIR 1928 Pat 451 (1) (C).
7. Mr. Khosla who appears for the defendant does not challenge the correctness of the legal proposition which has been propounded in the above cases, but he contends that there is at least one circumstance which would justify this Court in declining to Interfere with the order of the District Judge. When the defendant filed an appeal in the Court of the District Judge the plaintiff did not object to the jurisdiction of the learned District Judge to deal with the case.
On the other hand, he requested the District Judge for permission to amend his plaint. This permission was readily allowed. Instead of approaching the trial Court and proceeding to amend the plaint he sought the intervention of this Court and presented a petition under the provisions of Section 44, Punjab Courts Act. It is too late in the day, it is argued, for the plaintiff to resile from the position taken by him in the Courts below and to contend before this Court that the suit should be deemed to have been heard and decided as a small cause case.
I regret I am unable to concur in this contention. The suit was clearly of a civil nature of Which the value did not exceed Rs. 500/-; it was cognizable by a Court of Small Causes and by no other Court; the jurisdiction to try it as a regular civil suit has been expressly barred by the provisions of Sections 15 and 16, Small Cause Courts Act; and it is not within the competence either of the parties or of this Court to confer jurisdiction on a tribunal on which jurisdiction has not been conferred by the Legislature. As pointed out by a Pull Bench of the Punjab Chief Court in Hansa v. Ran Singh, 36 Pun Re 1902 (D) no amount of consent can confer jurisdiction where no jurisdiction exists.
8. Mr. Khosla requests that even if I am not prepared to declare that the case was rightly decided as regular suit I should quash the proceedings of the trial Court and place the parties in exactly the same position as if no proceedings had been taken at all. I regret I am unable to concur in this contention. It has been held repeatedly that when a small cause case is tried as a regular suit the decision arrived at in the suit should be deemed to be a decision given by a Court of Small Causes and should be treated as such.
It seems to me therefore that it is not withinmy power to set aside the order passed by the trialCourt. That order should be treated as an orderpassed by a Court of Small Causes. The Dist. Judgehad no power to entertain an appeal from thatorder and the order passed by him must thereforebe set aside. I would order accordingly. Therewill be no order as to costs.