1. This is an application for the transfer of a suit from the Presidency Court of Small Causes to this court and the application has come on before us, as a Bench sitting on the appellate side of the court
2. A preliminary objection was taken by the counter-petitioner that we have no jurisdiction to hear it, as the application should be made to a judge sitting on the original side. We are of opinion that this objection must be upheld.
3. Section 13 of the Letters Patent gives power to the High Court as a Court of Extraordinary Original. Civil Jurisdiction to with draw a suit pending in any other court and to try and dispose of it itself. According to that section the power of transfer is to be exercised by the High Court as a court of extraordinary original jurisdiction. It is contended that this does not show that this court has not also got the power to direct a transfer in the exercise of its appellate jurisdiction. Reliance is placed in support of this contention on Section 24 of the Code of Civil Procedure and on Appellate Side Rules of Practice, Rule No. 2, Clause (4). So far as the former provision of law is concerned, it merely gives power to the High Court to withdraw a suit pending in any court subordinate to it and to try and dispose of the same and has nothing to' do with the question whether the High Court should exercise the power as a court of original or appellate jurisdiction. It does not, therefore, help the petitioner's contention in any way.
4. With regard to Rule 2, Clause 4 (d), of the Appellate Side rules, that provision is equally useless to the petitioner. The object of that rule is only to lay down by how many judges of the court the matter referred to therein is to be disposed of. The rule applies only to the appellate jurisdiction of the court and is of no use in deciding whether an order of transfer in any particular class of cases falls within its appellate jurisdiction or not. That question must be decided apart from the rule. It has nothing to do with the question whether the court has the power in the exercise of its appellate jurisdiction to make a transfer from the Small Cause Court to the High Court.
5. The question then is--Is the order of transfer in this case one to be made in the exercise of Original or Appellate jurisdiction of the court. Whatever may be the view to be held, in the absence of clear legislative provision on the subject, it appears to us that under Section 13 of the Letters Patent we are bound to hold that such an order should be made by the court as a court of extraordinary original jurisdiction. The terms 'original' and ' appellate' jurisdiction are used in contradistinction to each other, and it would be extremely inconvenient, if not absolutely illegal, to hold that the same function can come within the purview of both original and appellate jurisdiction. The jurisdiction is broadly divided into three classes mutually exclusive of each other, viz., ordinary original, extraordinary original, and appellate jurisdiction. Our view is in accordance with the order of the Chief Justice in C. S. No. 264 of 1911, although the point was not expressly decided there, the application having been made under Section 13 of the Letters Patent. The same view was held in Thom is Robert Douceit v. Josiah Patrick Wise (1865) 4 W. R. Mis. 7. where also the application appears to have been made under Section 13 of the Letters Patent.
6. Our attention has been drawn to a case in Kadambini Baiji v. Madan Mohan Basack (1898) 3 C.W.N. 247. That case merely decided that an order of transfer from the Presidency Court of Small Causes to a mofussil court of original jurisdiction could be properly made in the exercise of the High Court's appellate jurisdiction. That is a case to which Section 13 of the Letters Patent would not be applicable. There is no doubt that the Presidency Court of Small Causes is subject to the superintendence of the High Court. That is expressly declared by Section 6 of the Presidency Small Cause Court Act. But that fact does not decide in what manner the High Court is to exercise any of the powers which it has with respect to proceedings in the Small Cause Court. The question of transfer of suits from that court to the High Court is regulated by Section 13 of the Letters Patent.
7. We must therefore uphold the objection, and we direct that the application be returned to the petitioner to be moved before a Judge or Judges of the court sitting on the original side.