1. In this case the learned Judge of the Court of Small Causes has held that he has a discretion under Section 47 of the Presidency Small Cause Courts Act as to whether or not to stay a suit in the Small Cause Court pending a suit in the High Court when the occupant is prepared to bind himself with sureties to institute a suit for compensation for trespass. He says that the application is not bona fide, and he bases his decision on the acts of the occupant, that he has already delayed proceedings in the Small Cause Court under Section 41 and in a manner which quite properly did not commend itself to the Judge of the Small Cause Court: and he also puts his decision on another ground, namely, that the application was not supported by an affidavit. The case here is also argued on a further ground, namely, that, in Section 47, the words 'whenever on an application being made under Section 41 'mean at some early stage in the proceedings on that application, it is suggested, either at the first hearing or within a reasonable time thereafter. In my judgment the words of the section leave no discretion Co the Judge of the Court of Small Causes at all. The rule is that when proceedings of a summary nature are taken under Section 41, the occupant, whom it is proposed to eject, shall have a right to say to the Small Cause Court, 'I want to have this case tried in the High Court and I am prepared to bind myself with two sureties for the probable costs of the suit.'In my judgment, the legislature, in its wisdom, in Section 47 gave no discretion to any one to refuse such an application when made. I can find no ground to say that such an application. must be supported by an affidavit. My attention has not been called to any rule to that effect and the Statute says nothing about affidavits, though I must not be understood to say that the learned Judge would not be justified, if he thinks that the application was not a genuine one at all, in adjourning the case for some short time for an affidavit.
2. Generally I should think he would be satisfied on the material before him, namely, a statement in writing by the Vakil for the first defendant and the first defendant saying that they are ready to file a suit in the High Court and to give the necessary bond though there may be cases where he would be justified in requiring more; and then it would be open to the Small Cause Court Judge to call upon them to put in an affidavit. In my judgment it Was not open to him to dismiss the application as frivolous on the ground that it was not supported by an affidavit.
3. As to the point taken as to the proper interpretation of the words 'on an application 'in Section 47, that these words mean 'at some early time during the currency of such proceedings '1 can find nothing in the Act to justify such an interpretation. It seems that the idea of the Act was that these proceedings are not to last long and I think it was intended that at any time during the currency of the proceedings these applications Could be made: and I am confirmed in this view by the sub-clause to Section 47 which obviously contemplates such an application being made after an order has been made under Section 43 of the Act.
4. This revision petition must therefore be allowed with costs and the case must go back to the Small Cause Court to proceed according to the provisions of Section 47 as explained above.