1. The petitioner P. Rungiah Naidu sued one C. Rungiah in the Presidency Court of Small Causes for the recovery of damages for non-acceptance of certain glassware indented for by the latter. The defendant refused to accept the goods on the ground that they were not packed in square and wide cases as required by the indents, contending that the provision as to the mode of packing was an essential term of the contract between him and the plaintiff. The learned Chief Judge who originally tried the suit gave effect to this plea and dismissed the action. The plaintiff thereupon made an application to the Full Bench, which was heard by the Chief Judge and the 2nd and 3rd Judges sitting together. The questions arising in the suit were then fully discussed before them, but they eventually differed among themselves and delivered separate judgments, one Judge holding that the plaintiff's claim should be decreed and the other two being of opinion that the suit should be dismissed. In the result the application was dismissed according to the opinion of the majority.
2. The petitioner urges that the learned Judges of the Madras Court of Small Causes, having differed as to the proper construction of the indent, were bound to refer the matter to the High Court under Section 69 of the Presidency Small Cause Courts Act and that they acted without jurisdiction in disposing of the case finally without first obtaining the opinion of the High Court on the point.
3. The learned pleader for the defendant has taken a preliminary objection to our entertaining the petition under Section 622, Civil Procedure Code, and argues that the section does not, apply to a Presidency Court of Small Causes. We think that there is no force in this objection. The Presidency Courts of Small Causes are undoubtedly subordinate Courts, and we can find nothing in the language of Section 622, Civil Procedure Code, or in any other provision in the Civil Procedure Code or the Presidency Small Cause Courts Act, which may be said to indicate an intention on the part of the Legislature to exclude such Courts from the application of Section 622. Further, a series of decisions giving rise to a long course of practice leaves no room for any doubt upon the question. (See Peary Mohan Ghosaul v. Harran Chunder Gangooly I.L.R. (1885) C. 261; Sassoon v. Haridass Bhufiut I.L.R. (1896) 24; Sadasook Gambit Chund v. Kannayya I.L.R. (1895) M. 96; Seshammal v. Munisatwmi Moodelli I.L.R. (1896) M. 358 Srinwasacharlu v. Balaji Rao I.L.R. (1896) M. 232, and Chinnathavibi Moodelli v. Veerabudriah Naidu I.L.R. (1902) M. 163. The next question we have to consider is whether the learned Judges of the Madras Small Cause Court can be said, in. this case, to have sat together in the suit within the meaning of Section 69 of the Presidency Small Cause Courts Act. We find that the Judges sitting in the Full Bench fully dealt with all the points arising for decision in the suit itself, and there can be no doubt that they intended to dispose of the suit finally. If no formal order was made granting a new trial, we agree with the learned Judges who decided the case of Seshammal v. Munisawmi Mudali I.L.R. (1896) M. 358, that could make no difference. We think we must have regard to the substantial effect of the order and not to its mere form. It virtually amounted to a revival or re-hearing of the suit. That being so, and the learned Judges having taken different views as to the right construction of the indent on the question as to whether the condition regarding the manner of packing was an integral part of the contract or not, and as such construction undoubtedly affects the merits of the case, we are of opinion that they were bound to refer the question to the High Court and could not deal with the case in the1 way they have done. The order of the Madras Small Causes Court of the 10th March 1907 on the F. B. Application No. 46 of 1906 is, therefore, set aside, and we direct that the suit be disposed of according to law. The costs of the petition will abide the result.