1. This case raises a point of some interest, vis., whether an appeal lies in the following circumstances. A suit is filed as a small cause suit in a Court having small cause jurisdiction. Then, owing to a change in the Judge presiding over the Court, the Court temporarily loses small cause jurisdiction and the case, together with other pending small cause cases, is marked as an original suit, in order, it is said, to attract Section 35 of the Provincial Small Cause Courts Act and in order to keep in order the records of the Court. Then the Court ceases to be presided over by that Judge with limited jurisdiction and a Judge is appointed who has small cause Court powers so that the suit can be tried by him as a small cause suit, In fact, however, it is not re-numbered, it continues on the files as an original suit, and is so disposed of. Does that change its nature? Or does it remain what it began, as vis., a small cause suit. If it became an original suit, an appeal lies. If it remained a small cause suit an appeal does not lie.
2. Now it was urged that Section 35 of the Provincial Small Cause Courts Act operates to change in some way a small cause suit into an original suit. In my opinion, it does nothing of the sort. What Section 35 does is to invest a Court which otherwise would be incompetent to hear any, or certain, small cause suits with power to hear certain of such suits vie, those pending in that Court at the time that Court's jurisdiction is changed. This is a provision that is manifestly desirable seeing that the same judicial chair is occupied by Judges some of whom are invested with higher powers than others. The appointment of a Judge with inferior powers would in such circumstances obviously dislocate pending business unless provision were made to enable him to deal with matters pending in the Court over which he presides. This provision is made by Section 35.
3. But Section 35 does not purport to turn a small cause suit into an original suit with all kinds of changes in procedure and in rights of appeal. It would, in my opinion, be fantastic if the whole course of a litigation could be changed after it had been started because a Mr. A was the Judge at the time of the trial instead of the Mr. B who was the presiding Judge at the time of the filing, still more fantastic if the appellate rights were entirely changed, because although Mr. A was the Judge at the time of the filing and at the time of the trial, the case had, for office purposes, been given a new number, because in between Mr. A was away for a month and Mr. B who had not Mr. A's powers was appointed to preside for that month.
4. If this were the law a litigant could not possibly know what he was undertaking when he filed a small cause suit. He would not know whether he had embarked on litigation which (apart from revision) would end in the trial Court in a few months or whether he had to face the expenses and anxieties and delays involved in an appeal to a Sub-Judge, to a District Judge, and to the High Court with a total pendency of anything from 3 to 7 years. It might be he had abandoned part of his claim to bring it within small cause Court jurisdiction only to find that he had abandoned that part in vain because of the appointment of a new and temporary Judge.
5. If that were the law it would, in my opinion, call for a change. I am satisfied, however, that it is not the law. In Shankarbhai v. Somabhai I.L.R.(1900) 25 Bom. 417 it was held that the character of a suit is not altered by the mode in which the Judge exercised his jurisdiction. If a Munsif tries a small cause suit on the original side no appeal lies for the nature of the suit is not thereby changed. See the Full Bench ruling in Kollipara Seetapathy v. Kankipati Subbayya I.L.R.(1909) 33 Mad. 323 : 20 M.L.J. 718 (F.B.). If, therefore, an appeal is taken and disposed of, it must be dismissed for the appellate Court has no jurisdiction to entertain it. Ibid., followed Veeran Kutti Avaru v. Joosuf Haji Jaffer Sait (1926) 52 M.L.J. 316.
6. In the light of the above, I do not consider myself bound by Mikkili Ankaya v. Allaparti Rathamma (1925) 94 I.C. 77 which contains the observations. 'The last point urged is that, if the suit although transferred remains a small cause suit, no first appeal lies. The answer to that is that the suit does not remain a small cause suit though it remains of a small cause nature'. That obeservation relates to a case that has been transferred under the provisions of Section 23. It distinguishes Kollipara Seetapathy v. Kankipati Subbaya I.L.R.(1909) 33 Mad. 323 : 20 M.L.J. 718 (F.B.) on this ground. The present case does not involve Section 23 but Section 35 and falls directly within the Full Bench ruling.
7. I find nothing in the other cases cited, Bakhtawar Mal v. Qasim Ali A.I.R. 1930 Lah. 44 Sarju Prasad v. Mahadeo Pande I.L.R.(1915) 37 All. 450 and Raman Nambyar v. Rayiram Naman (1934) I.L.R. 57 Mad. 777 : 1934 67 M.L.J. 43 to compel a different conclusion. It follows that the decision of the learned Subordinate Judge was made in an appeal which was incompetent and must be set aside with costs in this and lower appellate Court.