Carnduff and Beachcroft, JJ.
1. This appeal is from an appellate order, and it and the Rule connected therewith arise out of a suit brought by the plaintiff in the Court of the Munsif of Jangipore for the recovery from the local Municipality of a small sum of Rs. 34-3 said to have been illegally recovered from him. As will appear from what we are going to say, 'there is no second appeal in this case, and the appeal must, therefore, be dismissed as incompetent. We make no order as to costs.
2. We now proceed to deal with the Rule. The Munsif of Jangi pore was vested with the powers of a Small Cause Court Judge. He, however, thought fit to try the case, not in the summary manner provided by the law, but at length as if it had been an ordinary suit, and he gave the plaintiff a modified decree. An appeal was then preferred to the District Judge by the plaintiff, and the District Judge held that the Munsif by following the ordinary procedure and not the summary procedure, had acted without jurisdiction. He accordingly set the decree aside and ordered the case to be retried by the same Munsif in a summary manner.
3. Such an order has, obviously, nothing to recommend it on the merits, and it could be justified only if the law rendered it unavoidable. In our view, however, it was the District Judge who acted without jurisdiction in making it, and there was no defect of jurisdiction in respect of the trial by the Munsif. Under Section 15, Sub-section (2) of the Provincial Small Cause Courts Act, 1887, all suits of a civil nature of which the value does not exceed Rs. 500, are cognizable by a Court of Small Causes, unless expressly excepted. By Section 16 it is enacted that, 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. And Section 27 provides that a decree or order made under the foregoing provisions of the Act by a Court of Small Causes is final. The suit in question could, therefore, be tried by the Munsif only in the capacity of a Small Cause Court' Judge; and we are of opinion, following the decision of Mr. Justice Candy and Mr. Justice 'Whitworth in Shankarbhai v. Somabhai (1900) I.L.R. 25 Bom. 417 that, where a judicial officer invested with Small Cause Court jurisdiction tries a suit, which he might have tried under the summary procedure, in the ordinary manner, the character of the suit is not thereby altered and his decree is not appealable. Our conclusion, therefore, is that the District Judge's order was bad and made without jurisdiction.
4. There remains one more point to be noticed. It is suggested by the learned vakil who has appeared for the opposite party that the suit was really a suit for compensation for illegal distress, and was, therefore, excepted from the jurisdiction of the Small Cause Court by Art. 35, Clause (J), of the second Schedule to the Provincial Small Cause Courts Act, 1887. A reference to the plaint, however, will show that this is not so. The plaintiff began, no doubt, by seeking to recover not only the actual amount illegally realised from him, but also damages assessed by him at Rs. 17. Before trial, however, he altered his plaint by striking out the claim for damages, which he said he desired to abandon. We cannot accept the ingenious contention that the suit remained, nevertheless, a suit for compensation, the measure of the injury to be compensated being the precise amount illegally recovered, and we agree with the learned District Judge in holding that it was a suit triable exclusively by the Small Cause Court.
5. The result is that the Rule is made absolute, the order of the District Judge set aside, and the decree of the Munsif restored. In this connection also we. make no order as to costs.