Sankar Prasad Mitra, C.J.
1. The question that arises in this Reference is whether the High Court has jurisdiction to entertain a suit on a Negotiable Instrument which has been instituted under Order XXXVII of the Code of Civil Procedure for the recovery of a sum below Rs. 5,000/- in view of the provisions of the Calcutta City Civil Court Act, 1953.
2. In Suit No. 1459 of 1966 (Cal), (Kamalabala Mahapatra v. Golam Khan). Mr. Justice Ghose has held that this Court has no jurisdiction to try and determine a suit under Order XXXVII of the Code of Civil Procedure when the value of the suit is below Rs. 5,000/-. This decision was given on 7-12-1971.
3. The present suit being Suit No. 173 of 1973, (Prayag Deb Ganguli v. Sm. Rama Roy) is a suit under Order XXXVII of the Code for recovery of a sum of Rs. 3,235/-. It came up for hearing before Mr. Justice Salil Kumar Roy Chowdhury on 19th September, 1973. Mr. Justice Roy Chowdhury was inclined to pass a decree but in view of the earlier decision of Mr. Justice Ghose he has referredthe matter to a larger Bench. Mr. Justice Roy Chowdhury has relied on the Supreme Court's observations in Mahadeolal Kanodia v. Administrator General of West Bengal, : 3SCR578 for the purpose of making this Reference. The observations are as follows :--
'If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a largerBench In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.'
4. In this Reference we have to consider the relevant provisions of:
(a) Clause 12 of the Letters Patent of 1865,
(b) Section 18 of the Presidency Small Cause Courts Act, 1882 as amended upto-date.
(c) Section 5(4) and (5) of the City Civil Court Act, 1953, read with the 17th item in the First Schedule thereof.
5. Clause 12 of the Letters Patent lays down that the High Court shall not have original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage, or value of the property sued for, does not exceed one hundred rupees.
6. Section 18 of the Presidency Small Cause Courts Act, 1882 prescribes that the Small Cause Court shall have jurisdiction to try all suits of civil nature when the amount or value of the subject-matter does not exceed five thousand rupees.
7. Sub-section (4) of Section 5 of the City Civil Court Act, 1953 lays down that the City Civil Court shall not have jurisdiction to try suits and proceedings of the description specified in the First Schedule. Item No. 17 in the First Schedule is: 'Suits and proceedings triable by the Small Cause Court.' Sub-section (5) of Section 5 of the City Civil Court Act, 1953 says that all suits and proceedings which are not triable by the City CivilCourt shall continue to be triable by the High Court or the Small Cause Court or any other Court, tribunal or authority, as the case may be as hereinbefore. Under this Act the City Civil Court has been given exclusive jurisdiction to try suits not exceeding fifty thousand rupees in value which were previously triable by the High Court in its original side.
8. The combined effect of the above provisions is that both the Small Cause Court and the High Court have jurisdiction to try suits above one hundred rupees and upto five thousand rupees, whereas the City Civil Court shall try suits above five thousand rupees and upto fifty thousand rupees.
9. The question that arises for our decision in this reference is whether a suit under Order 37 of the Code can be instituted in the High Court when the same suit can be instituted in the Small Cause Court. In other words, whether a suit on a negotiable instrument above one hundred rupees and upto five thousand rupees which can be instituted in the Small Cause Court can also be instituted in the High Court under Order 37 of the Code. Order 37, it is well-known, is not applicable to the Small Cause Court at all.
10. The answer to the question is that there is a difference between pecuniary jurisdiction and the procedure for enforcement of that jurisdiction. Pecuniary jurisdiction has been conferred on this Court by Clause 12 of the Letters Patent as noted above read with the other provisions we have referred to. Order 37 is a manner or method of enforcing that jurisdiction. In this view of the matter we do not see any impediment in the way of this Court entertaining a suit under Order 37 of the Code when a suit of the same value can be entertained by the Small Cause Court as well.
11. There is no direct authority on the subject, but it may be of some assistance to refer to some of the decided cases In Manmotha Kumar v. Abu Jafer, AIR 1929 Cal 560, it was stated that where a suit was cognizable in the Small Cause Court and where it was instituted in the High Court the provisions of Section 22 of the Presidency Small Cause Courts Act were attracted. In cases governed by Section 22 no costs are allowable to the plaintiff unless the Judge who tries the suit certifies that it was one fit to be brought in the High Court. A party, having chosen to avail himself of Order 37 of the Code of Civil Procedure in a suit for the recovery ofa sum which is less than the amount mentioned in Section 22 (i. e., less than one thousand rupees), takes the risk of having no costs allowed to him unless he can induce the Judge to certify that it is a fit case to be brought in the High Court.
12. This decision shows that a suit under Order 37 could be entertained by the High Court even though the value of the suit was less than one thousand rupees except that the plaintiff could be deprived of costs,
13. In Mani Mohan Mondal v. Ram Ratan Mondal, ILR 43 Cal 148 at p. 152 = (AIR 1917 Cal 657) a Division Bench of this Court has said:
'The body of the Code (i. e., the Civil Procedure Code), is fundamental and is unalterable except by the Legislature; the rules are concerned with details and machinery and can be more readily altered. Thus, it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules.'
This is a decision which emphasises the point we have been making, namely, the distinction to be observed between the pecuniary jurisdiction and the machinery for enforcement of the jurisdiction.
14. That Order 37 is a procedural provision only has been made clear in Wor Lee Lone v. A. Rahman, AIR 1918 Low Bur 135 (1). A Division Bench of the Court has said:
'Order 37 lays down certain rules of procedure which are applicable only to the Chief Court, and such rules of procedure can only be applied after the plaint has been admitted. The rules do not in any way alter the nature of the suit, nor the jurisdiction of the Court. * * *'
15. We may also mention another point of relevance. In a suit under Order 37 the High Court alone has jurisdiction to pass a decree and jurisdiction depends not only on the right to entertain a suit but also to give the relief asked for. The Supreme Court in Official Trustee, West Bengal v. Sachindra, : 3SCR92 has said that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought, but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, and the authority to hear and decide the particular controversy that has arisen between the parties.
16. For all the reasons aforesaid, we are of opinion that there is no bar to the entertainment of the present suit by the High Court in its original side under Order 37 of the Code and to the passing of a decree in the suit We remit the matter with our opinion under Chapter 5, Rule 3 of the Original Side Rules to the learned Judge who made the report. Leave is given to the plaintiff to mention the matter before the learned Judge for early hearing. Costs of this reference would abide by the result of the suit.
Sabyasachi Mukharji, J.
17. I agree.
S.K. Datta, J.
18. I agree.