1. The petitioner in this Revision Petition was defendant in a suit on a promissory note. The District Munsiff dismissed the suit. The plaintiff thereupon appealed to the District Court. The District Judge allowed the appeal and remanded the case for retrial on a particular issue. The petitioner challenges the jurisdiction of the District Judge to entertain the appeal and consequently to make any order in it.
2. It appears that the suit was instituted in the Court of the District Munsiff as a small cause suit and that the District Munsiff at the time had small cause jurisdiction up to the pecuniary value of the suit. But this District Munsiff was transferred to another Court, and his place was taken by a Munsiff who had not the requisite small Cause jurisdiction. To meet this emergency recourse was had to Section 35 of the Provincial Small Cause Courts Act, and the suit was re-numbered and registered as a regular suit. Before the suit came on for trial the first munsif returned to that Court. Consequently he was competent to try this suit as a small cause suit; and, indeed, having regard to Section 16 of the Act he had no jurisdiction to try it otherwise. But evidently by some mistake, the suit retained its altered number and description as a regular suit and was tried as a regular suit. The question is whether the decree made in these circumstances is appealable. If the decree is to be deemed to have been passed in a regular suit, no doubt the general right of appeal given by Section 96, Civil Procedure Code, applies. On the other hand, if this decree is to be deemed to have been passed in a small cause suit Section 27 of the Act bars any right of appeal from that decree. It has been argued by the learned Advocate for the respondent that Section 27 can only apply where a decree is made under the provisions of the Small Cause Courts Act. His contention is that it is only when the Court is exercising small cause jurisdiction that the decree has a finality under Section 27. If the Court, though it has small cause jurisdiction, has in fact exercised its ordinary jurisdiction, Section 27 has no application. The question is undoubtedly a difficult one. But it is covered by authority. Section 16 read with Section 33 of the Act makes it clear that a Court which has small cause jurisdiction cannot try a suit of a small cause nature otherwise than as a small cause suit; and it has been held by a Bench in Indra Chandra Mukherjee v. Srish Chandra Banerjee I.L.R.(1913) 40 Cal. 537 following a decision of the Bombay High Court in Shankarbhai v. Somabhai I.L.R.(1900) 25 Bom. 417 that a small cause suit instituted as a small cause suit does not lose its character of a small cause suit by reason of it having been mistakenly transferred to the Original Side of the Court and tried as a regular suit. A similar view was taken by Stone, J., in Ramasivami Muthirian v. Arunachalam Chettiar : AIR1935Mad919 . I think that the principle of those cases should govern this case. The learned Advocate for respondent has cited a Full Bench ruling in Bhagwati Pande v. Badri Pande I.L.R.(1931) 54 All. 171. But this ruling is not inconsistent with the authorities above referred to. All that was decided in the Allahabad case was that if a suit had been instituted as a small cause suit and then transferred to the Original Side because the Munsiff had not got jurisdiction to try the suit as a small cause suit, and was tried by him as a regular suit, then the suit has no other character than that of a regular suit, and a decree passed in it is appealable under Section 96.
3. For these reasons I think the petition must be allowed with costs throughout and the order of the lower appellate Court set aside.