1. The short question for decision in this Civil Revision Petition is whether a Subordinate Judge, who is a presiding officer of an ordinary Sub-Court and not of a Court of Small Causes has, when exercising small cause powers, authority to act under Order 37, Civil Procedure Code. Order 37, Rule 1 declares that that order shall apply inter alia to
any other Court to which Sections 532 to 537 of the Code of Civil Procedure of 1882 have been already applied.
2. Under Section 538 of the Code of 1882, Sections 532 to 537 of that Code could be applied to
any other Court having ordinary original civil jurisdiction to which the Local Government may, by notification in the official Gazette, apply them.
3. As a matter of fact, however, no such notification appears to have been issued under this Act. Under the previous Code, Act X of 1877, Sections 532 to 538, which correspond to Sections 532 to 538 of the Code of 1882, a notification was issued and published in the Fort St. George Gazette on 23rd October, 1877, notifying that the sections applied to Dt. Courts and Courts of Subordinate Judges in the Presidency. Section 3 of the Code of 1882 lays down that any notification published in any enactment thereby repealed shall be deemed to have been published under that Code and that, wherein any notification passed prior to the date when that Code came into force reference is made to Act X of 1877, such reference
shall, as far as is practicable, be read as applying to this Code or the corresponding part thereof.
4. We think that is sufficient to make Order 37, Rule 1(d) apply to Courts notified under the notification of 23rd October, 1877.
5. The question then is, does this notification apply to the Court of a Subordinate Judge when that Subordinate Judge is exercising Small Cause Court powers? The notification by force of Section 538 of the Code of 1877 only applies to
any other Court having ordinary original civil jurisdiction.
5. This in itself would seem to restrict the application of the notification to the ordinary original civil jurisdiction of the Court, as the petitioner contends. It is argued, however, for the respondent first that the word 'having' merely purports 'possessing' and not 'when exercising' and secondly that the words 'ordinary original' describe the jurisdiction not as distinct from Small Cause Jurisdiction but as distinct from appellate, maritime or other jurisdictions which a Civil Court may possess. Neither of these contentions appears to us convincing. As to the first, there, seems to us no point in describing a Court as a Court having Original Civil Jurisdiction unless it was meant that it was such Court and no other to which the notification should apply. It does not follow automatically that every Court having Original Civil Jurisdiction has also Small Cause Jurisdiction. The phrase, therefore, could not have been intended automatically to include also Courts having Small Cause Jurisdiction. As to the second contention there seems to us no point in using the words 'Original Civil Jurisdiction' in order to distinguish Courts to which the notification should apply from appellate, maritime and other Courts, since the procedure prescribed by Sections 532 to 537 could never be applied to such Courts at all. The procedure could only apply to Courts in which suits on bills of exchange, etc., could be brought. It, therefore, appears to us that the words 'having ordinary civil jurisdiction' were deliberately used to confine the application of the rules to notified Courts when exercising Ordinary Original Civil Jurisdiction.
6. Now the Court against whose decision this Civil Revision Petition is preferred is not a Court of Small Causes but a Court invested with the jurisdiction of a Small Cause Court under a notification of this Court, dated 23rd July, 1926. Section 33 of the Provincial Small Cause Courts Act directs that, when a Court is invested with the jurisdiction of a Small Cause Court it is for the purposes of the Civil Procedure Code with respect to the exercise of that jurisdiction a different Court from the Court which it is in respect of the exercise of its jurisdiction in suits which are not cognizable by the Court of Small Causes. From this it is clear that for the purposes of the Civil Procedure Code the lower Court when exercising its Small Cause jurisdiction is not exercising its Ordinary Original Civil Jurisdiction. It seems clear to us, therefore, that the notification under the Act of 1877 does not apply to the lower Court when exercising its Small Cause jurisdiction. In the exercise of that jurisdiction the lower Court is invested with the jurisdiction of a Court of Small Causes and is so far divested of its Original Civil Jurisdiction. Indeed it is obvious from the very difference in powers which the Judge exercises in his original jurisdiction from those he exercises in Small Cause jurisdiction that the jurisdictions are different and the Courts therefore different.
7. It is significant that in the original Section 538 of Act X of 1877 the Courts of Small Causes in the Presidency towns were definitely named as Courts to which Sections 532 to 537 applied. It is hardly likely that the legislature intended that the only Courts to which the sections should not apply were Courts of Small Causes in the muffusal. It would be an unintelligible anomaly that the constituted Courts of Small Causes in the muffusal should not be able to employ these sections, while Courts alongside them invested with the powers of Courts of Small Causes should be able to employ them.
8. The question raised is a matter of first impression and no direct authority has been cited to us. A ruling in Sankararama Aiyar v. Padmanabha Aiyar : (1912)23MLJ373 , that for purposes of Section 24 of the Civil Procedure Code a Court invested with the powers of a Small Cause Court is a Court of Small Causes is along the same line of reasoning and dissents from the ruling in Raniachandra v. Ganesh I.L.R. (1899) B. 382 relied on by the respondent which is also dissented from in a later decision of the same Court in Narayan v. Bhagu I.L.R. (1907) Bom. 314.
We therefore hold that the lower Court exercised a jurisdiction not vested in it by law and its proceedings are therefore without jurisdiction and must be set aside. The decree of the lower Court is set aside and the lower Court is directed to rehear the suit in accordance with law. The petitioner will get his costs in this Court and costs in the lower Court will abide the event.