1. The plaintiff brought this suit for compensation for water taken by the defendants from the source of the plaintiff. It was dismissed with costs. In appeal, it was urged by the defendants that no appeal lay. The plaintiff (appellant) admitted by implication that an appeal would not lie unless the suit were of the nature described in Articles 13 and 35 (i) and (it) of Schedule II to the Provincial Small Cause Courts Act. It was held by the learned Subordinate Judge that the suit was not covered by either of these articles and he consequently held that an appeal did not lie. The appeal was accordingly dismissed. In the grounds of appeal to this Court, it was again contended that Articles 13 and 35 (i) and (ii) covered a suit of this kind. In view of my decision in S. A. No. 1067 of 1937 of the 25th September, 1940, this point was not pressed; but it is now argued that although the suit was of a Small Cause nature, an appeal did lie.
2. The appellant's contention seems to be well founded. It was assumed in Kollipara Seetapaty v. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323. that the decision in a suit which should have been tried on the Small Cause side but which was actually tried on the Original Side of the same Court was final and that no appeal therefore lay. The point did not really fall for decision there; but that has been taken as the law ever since in cases where a Court has no jurisdiction by virtue of Section 16 of the Provincial Small Cause Courts Act to try a suit on the Original Side. Where however a suit is filed on the Original Side because, as here, the District Munsif has no jurisdiction to try it as a Small Cause suit, that suit cannot be considered to be a Small Cause suit. All that can be said is that the suit is of a Small Cause nature. There is however nothing in the Provincial Small Cause Courts Act or in the Civil Procedure Code, which says that no first appeal lies in such cases. The Provincial Small Cause Courts Act applies only to Small Cause suits, and although Section 102 of the Civil Procedure Code, is a bar to a Second Appeal, there is nothing in the Act which prohibits a First Appeal. An appeal did therefore lie in the Court below because the District Munsif had no jurisdiction to entertain the suit on the Small Cause side.
3. No Second Appeal lies by virtue of Section 102 of the Civil Procedure Code; so that if the appellant is to succeed, this appeal must first be converted into a revision petition and then I must exercise my discretion in his favour. He should undoubtedly have raised the point which has now been discussed both in the Court below and in the grounds of appeal here. This appeal will be converted into a revision petition, the petition allowed, and the First Appeal remanded for disposal on the merits, only if the appellant pays the costs of the respondents both in this Court and in the lower Appellate Court within three weeks of the receipt of the records in the lower Appellate Court. Otherwise, this appeal will stand dismissed with costs.
4. After dictating the above but before signing the transcript, it struck me that the Subordinate Judge might have had jurisdiction over the Peddapuram Munsif, and an inquiry in the office confirmed my suspicion. The Subordinate Judge did have jurisdiction to try this suit as a Small Cause suit. The question is whether this affects the above decision. At first sight it would appear that as the suit should have been tried on the Small Cause side, it should be treated as a Small Cause decision against which there is no appeal; but Mr. Raghava Rao has met this by two arguments. He first of all refers to the wording of Section 15 of the Civil Procedure Code, which lays down that 'every suit shall be instituted in the Court of the lowest grade competent to try it'. He argues that the District Munsif was competent to try this suit in. spite of the provisions of Section 16 of the Provincial Small Cause Courts Act. Section 16 says:
Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.
5. He contends that there is another enactment in force which prevents the section from operating and that is Section 15 of the Civil Procedure Code. He argues that as the Court of the District Munsif was lower in grade to that of the Subordinate Judge, the suit had to be instituted in the District Munsif's Court. Mr. Raghava Rao admits that in practice this would mean that no Subordinate Judge would ever be able to exercise his Small Cause jurisdiction; because no Subordinate Judge has pecuniary jurisdiction on the Small Cause side beyond Rs. 3,000, up to which amount a District Munsif can try a suit on the Original Side. Although it would seem reasonable to suppose that the District Munsif was not competent to try the suit because of Section 16, Mr. Raghava Rao has quoted an authority to the contrary. The meaning of 'competent to try' came up for decision in Chockkalingam v. Palaniappa : (1932)63MLJ689 and the learned Judges there, after referring to various cases in which a somewhat similar question had arisen, came to the conclusion that a District Munsif has jurisdiction to try and is competent to try a suit beyond his own pecuniary jurisdiction on the Small Cause side but within the pecuniary jurisdiction of the Subordinate Judge, though there is the circumstance or accident that that particular class of suit is removed from its purview. In that case they were considering whether under Section 24 (1-a) a District Court can transfer a suit from a Small Cause Court to another Court on the Original Side, and they pointed out that Section 24 (4) would have no meaning if it were true that the District Munsif to whom the suit was transferred was not competent to try the suit because of Section 16 of the Provincial Small Cause Courts Act.
6. It is not necessary however, to try to reconcile the above decision with the interpretation of Section 16 of the Provincial Small Cause Court Act and Section 15 Civil Procedure Code, that common sense seems to require; because I think Mr. Raghava Rao's second argument is sound. In Kollipara Seetapati v. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323 the trial on the Original Side in the District Munsif's Court was referred to his Small Cause jurisdiction and his decree was upheld apparently on the ground that as he was bound to try the suit on the Small Cause side,, the decree should be looked upon as a decree on the Small Cause side. In the present case the trial by the District Munsif on the Original Side cannot be regarded as a disposal on the Small! Cause side of the Court of the Subordinate Judge; and I do not think therefore that the principle laid down in Kollipara Seethapathy v. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323 , should be applied to a case where the Small Cause jurisdiction is exercised by a Court other than that in which the suit is tried on the Original Side. It follows that the order of remand must stand.