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Vaithilingam Chetty Vs. Kaliaperumal Mudali and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad100; 45Ind.Cas.13
AppellantVaithilingam Chetty
RespondentKaliaperumal Mudali and anr.
Cases ReferredRam Nath v. Gowhur
Excerpt:
civil procedure code (act v of 1908), section 24 clause (1)(b)(ii), order xlvii, rule 2 - 'compent to try and depose of the same,' meaning of--jurisdiction of courts teritorial changes in--new courts, establishment of, with jurisdiction over cases from specified date--review, petition for, to court exercising jurisdiction before establishment of new court--transfer to new court, power of district judge to--new court, whether 'successor' of court which entertained petition--transfer, whether ultra vires. - .....which was subsequently assigned to him and, therefore, he became the successor of the subordinate judge of kumbakonam and as notice was directed to be issued by the subordinate judge in respect of this matter, the new small cause court judge must be taken to be a successor competent to dispose of the review petition, within the meaning of section 24 (b)(ii). as pointed out by the learned vakil for the petitioner, it seems to me that the new small cause court judge should be regarded as the successor of the existing small cause court judges, only in respect of cases filed after the 1st january 1916. having regard to the express wording of the high court circular he cannot be regarded as the successor of the small cause court judges in respect of matters which were pending on their file.....
Judgment:

Seshagiri Aiyar, J.

1. The suit was originally instituted on the Small Cause Side of the Subordinate Judge's Court at Kumbakonam. He pronounced judgment on the 27th October 1915. A petition for review was presented to him on the 19th November 1915. He directed the issue of notice to the opposite party on the 27th November, On the 1st January 1916 a Special Small Cause Court was established at Kumbakonam which was invested with jurisdiction to try all small cause suits within a specified area. The High Court issued a circular, R.O.C. No. 3656 of 1916, dated 31st October 1916, in which it was stated that the Special Small Cause Judge alone shall have jurisdiction to hear all small sauae suits instituted after the 1st January 1916. Apparently on this circular the District Judge transferred the review petition from the Kumbakonarm Subordinate Court to the new Small Cause Court. The question for consideration is whether this transfer was right.

2. This petition was presented by the plaintiff and as I found that the opposite side was not represented before me, I requested Mr. Madhavan Nair to help me, as a question of considerable importance regarding the procedure was raised by the point taken before me. I am very much indebted to Mr. Madhavan Nair for his assistance.

3. Mr. Madhavan Nair supports the order of the District Judge by a reference to Section 24, Clause (1)(b)(ii). He concedes that the High Court circular can only affect cases which were instituted after the 1st January 1916. But he argues that the District Judge had power to withdraw the case from the file of the Subordinate Judge and to direct its disposal by any Court subordinate to the District Court which was competent to try and dispose of small cause suits. The difficulty arises in construing the words 'competent to try and dispose of the same' in Clause (1)(b)(ii) of Section 24. There can be no doubt that the Special Small Cause Judge, according to the circular of, the High Court, was only competent to hear cases which were filed after the new Court Was established. Order XLVII, Rule 2, of the Civil Procedure Code provides that after notice has been issued by the Judge on an application for review, the successor of that Judge is competent to dispose of it. Mr. Madhavan Nair's contention is this--that the Special Small Cause Judge is the successor of all those Judges who exercised Small Cause Court's jurisdiction within the limit which was subsequently assigned to him and, therefore, he became the successor of the Subordinate Judge of Kumbakonam and as notice was directed to be issued by the Subordinate Judge in respect of this matter, the new Small Cause Court Judge must be taken to be a successor competent to dispose of the review petition, within the meaning of Section 24 (b)(ii). As pointed out by the learned Vakil for the petitioner, it seems to me that the new Small Cause Court Judge should be regarded as the successor of the existing Small Cause Court Judges, only in respect of cases filed after the 1st January 1916. Having regard to the express wording of the High Court circular he cannot be regarded as the successor of the Small Cause Court Judges in respect of matters which were pending on their file at the time when the new Court was established. There can be no doubt on the question of convenience and justice that the Subordinate Judge of Kumbakonam would be the proper person to dispose of this review petition. He is cognisant of all the facts which transpired before him, and it would be very inconvenient that a new Judge who had nothing to do with the original trial should be asked to hear the review petition. The observations of the Judicial Committee in Ram Nath v. Gowhur 2 N.W.P.H.C.R. 230 support this view. I have, therefore, come to the conclusion that the order of the District Judge transferring the case from the file of the Kumbakonam Subordinate Court to the new Small Cause Judge is ultra vires. On this ground, I must reverse the order in this case and direct the Subordinate Judge of Kumbakonam to dispose of the petition on the merits. Costs to abide the result.


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