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Sankarama Aiyar Vs. R. Padmanabha Aiyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in17Ind.Cas.425
AppellantSankarama Aiyar
RespondentR. Padmanabha Aiyar
Cases ReferredMangal Sen v. Rupchand
Excerpt:
civil procedure code (act v of 1908), section 24(4) - provincial small cause courts act (ix of 1887), section 33--court invested with small cause court powers, whether a small cause court--transfer from such court to court not invested with small cause court powers--further transfer to another similar court--decree of latter, whether appealable--direction by transferring court to try as original suit, effect of. - .....objection. now, section 24 clause (4) of the civil procedure code lays down: 'the court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a court of small causes. the first clause of the section authorises the district court to transfer the suit to any court subordinate to it and competent to try or dispose of the same. that the district munsif's court of srivaikuntam and the additional munsif's court of tinnevelly were both courts competent to dispose of the suit cannot be doubted. the argument of the appellant is that by virtue of clause (4) of the section, the decision of the tinnevelly additional munsif was the decision of a court of small causes, and, consequently, under section 27 of the.....
Judgment:

Sundara Aiyar, J.

1. The question for decision in this civil revision petition is whether an appeal lay to the District Court of Tinnevelly from the judgment of the Additional District Munsif of Tinnevelly in Original Suit No. 132 of 1907. The Subordinate Judge, to whom the appeal was transferred for disposal, states that the suit was originally in the Subordinate Judge's Court of Tuticorin as Small Cause No. 1484 of 1906; from that Court it, was transferred to the District Munsif's Court of Srivaikuntam. The order of transfer contained a direction that the suit should be tried as an original suit along with another suit. It was again transferred from the latter Court to the Additional District Munsif's Court of Tinnevelly. The Additional District Munsif dismissed the suit and the plaintiff preferred an appeal to the District Court. A preliminary objection was taken before the Subordinate Judge that the appeal did not lie, as the decision of the Additional District Munsif must be taken to have been that of a Small Cause Court. The Subordinate Judge overruled this objection. Now, Section 24 Clause (4) of the Civil Procedure Code lays down: 'The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. The first Clause of the section authorises the District Court to transfer the suit to any Court subordinate to it and competent to try or dispose of the same. That the District Munsif's Court of Srivaikuntam and the Additional Munsif's Court of Tinnevelly were both Courts competent to dispose of the suit cannot be doubted. The argument of the appellant is that by virtue of Clause (4) of the section, the decision of the Tinnevelly Additional Munsif was the decision of a Court of Small Causes, and, consequently, under Section 27 of the Small Cause Courts Act, no appeal lay from his decision. It is first argued for the respondent that the transfer to the Tinnevelly Additional District Munsif's Court was from the Srivaikuntam Court and that that Court was not a Court of Small Causes within the meaning of Section 24 of the Civil Procedure Code and that the Tinnevelly Additional Munsif's Court could not, therefore, be said to have tried a suit transferred from a Court of Small Causes. It is, no doubt, the fact that the Srivaikuntam Munsif had not been invested with jurisdiction to try Small Cause suits of the value of this suit. But there are two answers to the respondent's argument. One is, that under Clause 4 of Section 24 of the Civil Procedure Code, the Srivaikuntam Court was a Small Cause Court with respect to this suit when it was transferred to it from the Subordinate Judge's Court of Tuticorin. The argument that it would become a Small Cause Court only at, and for the purpose of, the trial cannot be upheld. If this contention be sound, in what capacity could the Srivaikuntam Court pass orders in the suit before the trial? It cannot be said that it could do so except as the Court trying the suit. The other answer is that the clause does not say that the transfer should be immediately from a Court of Small Causes and the suit while pending in the Additional Munsif's Court of Tinnevelly may be said to have been one transferred from the Subordinate Judge's Court of Tuticorin. The construction contended for the respondent would hardly be in accordance with the object of Clause (4), which is to provide for the trial as a Small Cause Court of suits which are transferred from Courts of Small Causes. All this is, of course, on the assumption that the Subordinate Court of Tinnevelly which was invested with the powers of a Small Cause Court was a Court of Small Causes within the meaning of Section 24 of the Civil Procedure Code. The most important contention of the respondent is that the Subordinate Judge's Court of Tinnevelly cannot be regarded as a Court of Small Causes. It is of course, not disputed that the Court was not a Small Cause Court constituted under the provisions of Act IX of 1887 by the authority competent to constitute Small Cause Courts under that Act. It was invested with Small Cause jurisdiction by the Government of Madras under Section 28 of the Madras Civil Courts Act. The respondent argues that Clause (4) directs to be deemed as Courts of Small Causes only Courts trying suits transferred from what are strictly Small Cause Courts and not from Courts invested with Small Cause jurisdiction. The point for decision is, can the Subordinate Judge's Court of Tuticorin be regarded as a Small Cause Court within the meaning of Section 24 of the Civil Procedure Code? Mr. S. Srinivasa Aiyar, who has argued the case ably and very fully for the respondent, has drawn our attention to Section 7 of the Civil Procedure Code and to Order L where the Code speaks specifically of Courts invested with Small Cause jurisdiction along with Small Cause Courts and he argues that, therefore, Section 24, when it speaks of Small Cause Courts, cannot be taken to include Courts invested with Small Cause jurisdiction but not constituted as Small Cause Courts. Now, there can be no doubt that one object of providing in Section 24, Clause (4), that a Court trying a suit transferred from a Small Cause Court shall be deemed a Small Cause Court is to make the decision of the Court final in the same manner as the decision of the Court from which the suit was transferred would be. The finality of the decision of a Small Cause Court is enacted by Section 27 of the Provincial Small Causa Courts Act. Section 24, Civil Procedure Code, must clearly be read with the provisions of the Provincial Small Cause Courts Act. Now, turning to the latter Act, Section 32 extends to Courts invested with Small Cause jurisdiction various provisions applicable to Small Causes, viz., the class of suits over which jurisdiction is to be exercised, the exclusion of the jurisdiction of other Courts in those suits, the practice and procedure applicable to Small Cause Courts and the finality of the decrees and orders passed by those Courts, etc. Section 35 of the Provincial Small Cause Courts Act, like Section 7 of the Civil Procedure Code, refers to cases where a Court of Small Causes or a Court invested with the jurisdiction of a Court of Small Causes, has, from any cause ceased to have jurisdiction with respect to a case, and it makes provision as to which Court is to have jurisdiction in such cases. If the matter had stood here, there would be very much force in the respondent's objection that the mere investiture of a Court with Small Cause powers would not make it a Small Cause Court. But Section 33 provides that 'a Court invested with the jurisdiction of a Court, of Small Causes with respect to the exercise of that jurisdiction and the same Court with respect to it he exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of this Act, and the Code of Civil Procedure be deemed to be different Courts.' It is difficult to give a proper meaning to this section except by interpreting it as laying down that a Court invested with Small Cause jurisdiction becomes for the purpose of its cognizance of suits, which it is competent to try as Small Cause suits, a Small Cause Court. This is clear from the expression 'for the purposes of this Act and the Code of Civil Procedure.' What can be the meaning for saying that a Court invested with Small Cause jurisdiction is different from itself frying regular suits for the purposes of the Small Cause Courts Act except that it is to be regarded as a Small Cause Court? The Civil Procedure Code makes certain sections of the Code not applicable to Small Cause Courts. The reference to the Civil Procedure Code is evidently to make the excerpted sections of the Civil Procedure Code applicable to Courts invested with Small Cause jurisdiction. The respondent's Vakil was invited to mention any object that this section could have in view if it was not to make Courts invested with Small Cause jurisdiction, Small Cause Courts. He was not able to make any suggestion that we could accept. It is true that Section 32 would, strictly speaking, be unnecessary on this interpretation of Section 33 and that the reference to Courts invested with Small Cause jurisdiction in Section 35 might also be said to be unnecessary. But apparently the Legislature considered it better to mention specifically Courts invested with Small Cause jurisdiction in Section 35 and to provide expressly in Section 32 for the rules of procedure and finality of decisions and the other provisions of that section applying to Courts invested with Small Cause jurisdiction. At any rate, it seems to be impossible to give due effect to Section 33, unless it is regarded as making Courts invested with Small Cause jurisdiction Small Cause Courts. On this construction of Section 33, there can be no doubt that the Subordinate Judge's Court of Tuticorin in exercising Small Cause jurisdiction must be regarded as a Small Cause Court. So far as the reason for the rule laid down in Section 24 is concerned, there is no ground for distinction between a transfer from a Court of Small Causes and a Court invested with Small Cause jurisdiction. The decisions of both classes of Courts are final. The object of Clause 4 of Section 24 is to give finality also to the decision of the Court to which the suit is transferred. Section 24 admittedly has the effect of giving the finality of a Small Cause Court's judgment to decisions of Courts not constituted Small Cause Courts. If this could be done with respect to suits transferred from Small Cause Courts it is difficult to see why it should not be done also with respect to those transferred from Courts invested with Small Cause powers. It may be, as pointed out in Dulal Chandra Deb v. Ram Narain Deb 31 C. G 1057 a grave thing to take away the right of appeal where the Legislature has not considered the desirability of investing any particular Court with Small Cause jurisdiction, but the gravity applies equally to cases where the transfer is from Small Cause Courts. Rightly or wrongly, the Legislature has thought it proper to give finality to the decisions not only of Small Cause jurisdiction but to the decisions of a third class of Courts, viz., of Courts to which a suit of Small Cause nature is transferred in certain cases. The exact scope of such cases is immaterial in considering the gravity of what is done by the Legislature. The case of Dulal Chundra Deb v. Ram Narain Deb 31 CX. 1057 no doubt, contains a strong dictum in respondent's favour. The exact point in the case was whether when a Munsif having Small Cause jurisdiction was succeeded by one having no jurisdiction, an appeal would lie from the decision of the latter who tried the suit on the regular side. There can be no doubt that Section 24 would have application to such a case and an appeal would lie. Ramchandra v. Ganesh 23 BK. 382 undoubtedly, is in respondent's favour. But, although Sections 32 and 35 are commented on in that judgment, no reference is made to Section 33. It may be observed that Dulal Chandra Deb v. Ram Narain Deb 31 C.D 1057 also makes no reference to that section. Mangal Sen v. Rup Chand 13 A.K 324 which followed an earlier Allahabad decision, is, on the other hand, in appellant's favour. These are really the only decisions in point. In Bhagvan Dayalji v. Balu 8 E.K 230 Mr. Justice West observed that a Court exercising Small Cause jurisdiction by special investiture of powers and the same Court exercising its ordinary original jurisdiction may be regarded as two different Courts. Akshay Kumar Shaha v. Hira Ram Dosad 7 C.L.J. 407 cited for the appellant, is not really in point as the learned Judges there decided the case on a consideration of Section 32 of the Act. The view adopted by the Allahabad High Court appears to be the right one.

2. Another question arises for decision in consequence of the District Court transferring the suit from the Subordinate Judge's Court of Tuticorin to the Srivaikuntam Court, directing the latter Court to try it as an original suit.

3. Having regard to Section 24 of the Civil Procedure Code, it had apparently no power to do so. It was suggested during the arguments that the order of transfer should, therefore, be regarded as wholly void. But this does not appear to be the correct view to be taken. The District Judge in making the direction must be taken to have acted in excess of jurisdiction. He had power to transfer the suit, but he had no jurisdiction in doing so to order that the suit should be tried on the regular side contrary to the provision in Section 24 of the Civil Procedure Code that the Court trying a suit transferred from the Small Cause Court shall be deemed to be a Small Cause Court. The direction to try it as a regular suit mast be regarded as invalid but it does not affect the order of transfer itself. See Bayley on Jurisdiction, Vol. I, Section 29. The decision of the Munsif was, therefore, that of a Small Cause Court under Section 24 of the Civil Procedure Code and no appeal lay to the Subordinate Judge's Court. The decree of the Subordinate Judge, therefore, must be reversed and that of the District Munsif restored with costs here and in the Appellate Court.

Sadasiva Aiyar, J.

4. Mr. Srinivasa Aiyar, who argued the respondent's case with great learning, acuteness and fairness, has brought forward, all the available arguments and the two propositions enunciated by him are: (a) that a Court trying a suit transferred not from a Court of Small Causes in the technical sense but from a Subordinate Judge's Court merely invested with Small Cause powers is not itself a Small Cause Court whose decision is not subject to appeal; (b) that even if the District Munsif's Court of Srivaikuntam, to which the suit was transferred, be a Small Cause Court, the Tinnevelly District Munsif's Court, to which there was a further transfer and which actually tried the suit, was not a Court of Small Causes. I am clear, after hearing the whole matter elaborately discussed, that the Legislature intended to take care that a suit originally and properly instituted as a Small Cause suit should not lose that nature even if it be tried by another Court afterwards by reason of transfer of proceedings. When Section 33 of the Provincial Small Cause Courts Act says that a Court invested with Small Cause jurisdiction shall be a different Court from itself when it is exercising its ordinary Civil jurisdiction it could only mean that such Court shall be deemed to be a Small Cause Court different from an ordinary Civil Court. The observations in Dulal Chandra Deb v. Ram Narain Deb 31 CB. 1057 and the case in Ramchandra v. Ganesh 23 BK. 382 ignored this Section 33 and the effect of these decisions is rather to criticise the policy of the Legislature found in Section 24, Clause 8 ES. 230, Civil Procedure Code, than to follow its plain provisions as is done in Mangal Sen v. Rupchand 13 A.K 324. As regards the argument that the trying Court did not get its jurisdiction by an immediate transfer from the Court in which the suit was originally instituted as a Small Cause suit, Section 24, Clause (4), does not say that the Court trying any suit transferred or withdrawn from a Court of Small Causes and which shall be deemed, therefore, to be a Small Cause Court should also be a Court to which the transfer had been immediately from the Small Cause Court in which the suit was originally instituted. This contention, therefore, also fails. The appeal was, therefore, heard by the Subordinate Judge without jurisdiction and his decree must be reversed and that of the District Munsif restored with costs.


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