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Mohesh Chandra Mali and ors. Vs. Gangamayee Mazumdar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal556,157Ind.Cas.1026
AppellantMohesh Chandra Mali and ors.
RespondentGangamayee Mazumdar
Excerpt:
- .....rs. 100 only. as there was no court of small causes at kishoreganj then having jurisdiction to try suits of small cause court nature, the value whereof exceeded rs. 100 under the provisions of section 35, provincial small cause courts act, the small cause court suit which i have mentioned above was transferred to the court of mr. j.p. sen. if nothing further had occurred, mr. j.p. sen would have tried the suit in his ordinary file as a munsif and his decree would have been an appealable one. but certain other events occurred. they are, that before the hearing commenced, mr. j.p. sen was invested with the powers of a small cause court judge to try suits up to the value of rs. 150. at the date of the trial and at the date of the judgment, he had the powers to try this particular suit,.....
Judgment:
ORDER

R.C. Mitter, J.

1. This Rule has been obtained by the defendants against an order of the learned Additional District Judge of Mymensingh dated 31st July 1934 and also against the judgment and decree of the Subordinate Judge of that place passed in Money Appeal No. 210 of 1934. The point taken by the petitioners is that no appeal lay to the Court of the learned District Judge against the judgment and decree passed by Mr. J.P. Sen dated 30th April 1934. On considering the arguments advanced by the respective Advocates I am of opinion that the position taken by the petitioners is sound.

2. The relevant facts are these. The plaintiff opposite party instituted a suit for recovery of a sum of Rs. 145 said to be due to him from the defendants. At the time when the plaint was filed, there was a Munsif at Kishoreganj having Small Cause Court powers up to the sum Rs. 150. The suit was accordingly filed as a Small Cause Court suit and was numbered Small Cause Court Suit No. 2368 of 1933 and it was registered as a Small Cause Court suit. Subsequently, the officer before whom the suit was filed was transferred to another place and was succeeded by Mr. J.P. Sen who had powers to try Small Cause Court suits up to the value of Rs. 100 only. As there was no Court of Small Causes at Kishoreganj then having jurisdiction to try suits of Small Cause Court nature, the value whereof exceeded Rs. 100 under the provisions of Section 35, Provincial Small Cause Courts Act, the Small Cause Court suit which I have mentioned above was transferred to the Court of Mr. J.P. Sen. If nothing further had occurred, Mr. J.P. Sen would have tried the suit in his ordinary file as a munsif and his decree would have been an appealable one. But certain other events occurred. They are, that before the hearing commenced, Mr. J.P. Sen was invested with the powers of a Small Cause Court Judge to try suits up to the value of Rs. 150. At the date of the trial and at the date of the judgment, he had the powers to try this particular suit, which was originally instituted as a Small Cause Court suit, as a Small Cause Court suit. He gave effect to the pleas taken by the defendants and dismissed the suit. The plaintiff made an application to the learned District Judge for a reference to the High Court and in the said application he stated as he must state that the decree passed by Mr. J.P. Sen was not an appealable decree. The Additional District Judge before whom this application came on for hearing however was of opinion that an appeal lay before him and he converted the application for reference into a memorandum of appeal and transferred the case to be decided on the merits to the Court of the Subordinate Judge of Mymensingh. The learned Subordinate Judge went into the merits of the ease, reversed the finding of Mr. J.P. Sen and came to the conclusion that the plaintiff's claim was a valid claim and not barred by limitation. A decree was accordingly made by the said Subordinate Judge.

3. As I have already stated, the jurisdiction of the District Judge is questioned on the ground that the decision of Mr. J.P. Sen was a final decision not open to challenge by way of appeal. For the purpose of deciding this question some of the provisions of the Provincial Small Cause Courts Act has to be noticed. Section 32, Sub-section (1) says that if a suit is tried by a Court invested with the powers of a Small Cause Court, the decision must be taken to be the decision of a Small Cause Court and the decree passed would be a final decree not subject to any appeal or revision save as provided for in the Provincial Small Cause Courts Act. Sub-section 2 of the said Section then provides

Nothing in Sub-section (1) with respect to Courts invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceedings commenced in those Courts before the date on which they were invested with that jurisdiction.

4. This Sub-section (2) is in the nature of a proviso to Sub-section (1) of Section 32 and therefore its operation must be limited expressly to the cases mentioned therein. The plain meaning of this sub-section is that if a suit is instituted in the ordinary civil Court or proceedings are commenced in such a Court the subsequent investment of such a Court with the powers of a Small Cause Court would not make the provision of Sub-section (1) applicable. The words 'suits instituted or proceedings commenced' have a definite meaning. They mean, 'when the plaint is presented or the application is put in.' If at that time there is no Court of Small Causes in the locality and the suit or the application is filed in any civil Court that sub-section would apply even if the presiding Judge of the civil Court be later on invested with Small Cause Court powers. If a suit, therefore, is instituted in a Court of Small Causes, and if that Court in subsequently abolished, the case will have to be sent to the ordinary civil Court having jurisdiction under the provisions of Section 35 of the said Act. If the Court to which the case is sent under the provisions of Section 35 of the said Act acquires before the date of the trial the powers to deal with the said suit as a Small Cause Court suit the provisions of Sub-section (1) of Section 32 would be applicable. This interpretation of the relevant sections to which I have referred receives considerable support from the provisions of Section 16 of the Act. The said section, namely Section 16, says that 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, that is to say, if at the date of the trial there is a Court of Small Causes in the locality which could try the suit which is admittedly of a nature cognizable by a Court of Small Causes, the ordinary Courts would have no jurisdiction to try the same.

5. My judgment, therefore, is that as Mr. J.P. Sen who tried the suit had the power at the date of the trial of a Small Cause Court Judge to try suits of a Small Cause Court nature of a value more than Rs. 145, his decision must be taken to be a decision of a Small Cause Court Judge under the law final and only open to revision under Section 25 or the said Act. I accordingly hold that the order and decree complained of are ultra vires and must be set aside. The result is that the decree of the learned Munsif is restored. But inasmuch as the learned District Judge of his own motion converted the application made before him by the plaintiff for a reference to the High Court into a memorandum of appeal, it would be open to the plaintiff to move this Court if he is so advised against the decree of Mr. J.P. Sen under the provisions of Section 25, Provincial Small Cause Courts Act. It would be for the Court to which such an application is made to consider the said application on its own merits. The Rule is accordingly made absolute but in the circumstances of the case I make no order for costs.


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