Prinsep and Banerjee, JJ.
1. This suit as brought was cognizable by a Small Cause Court, and inasmuch as there was a Small Cause Court having jurisdiction in that particular locality, it should have been brought in that Court. Nevertheless the Munsif without any objection being raised tried the suit and dismissed it. The plaintiff appealed, and in the Court of the District Judge also no objection of this kind was raised; but the order of the Munsif was set aside and a decree was given for the plaintiff for damages, but in a sum smaller than that claimed.
2. The defendant has now preferred a second appeal against the appellate decree. An objection is raised by the plaintiff that a second appeal would not lie by reason of Section 586 of the Code of Civil Procedure, the subject-matter of the original suit not exceeding 500 rupees. To this the defendant-appellant replies that the Courts below had no jurisdiction at all over the subject-matter of the suit, inasmuch as this suit should have been brought in a Small Cause Court, and therefore a second appeal lies in a matter of jurisdiction, on the authority of the case of Dyebukee Nundun Sen v. Mudhoo Mutty Gupta I.L.R. 1 Cal. 123 : 24 W.R. 478. The law has, however, been altered since the passing of that decision, and it seems to us to stand at present on entirely different ground.
3. Section 16 of Act IX of 1887, the Provincial Small Cause Courts Act, declares that a suit cognizable by a Small Cause Court 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. So that under that section the suit could not have been tried by the ordinary Courts as it has been. But Act VII of 1888, Section 60, has introduced Section 646B into the Code of Civil Procedure which modifies the operation of Section 16 of the Small Cause Court Act, and introduces an entirely different principle. Under that section, in a case such as that now before us, properly triable only by a Small Cause Court but tried by an ordinary Civil Court, on an appeal preferred the District Court may, and, if required by a party, shall, submit the record to the High Court, with a statement of its reasons for considering the opinion of the Subordinate Court with respect to the nature of the suit to be erroneous: and it is further enacted that 'on receiving the record and statement, the High Court may pass such an order in the case as it thinks fit.' No doubt under this last clause if standing alone it; might be held that the decision of the High Court should be limited only to the question of jurisdiction, but the previous clause shows that this was not the intention of the Legislature. If the question of jurisdiction were alone involved, it could be dealt with by the District Court on appeal. But such action of the District Court is restrained. If no objection as to the jurisdiction is raised, the District Court is left to act in exercise of its own discretion either to decide the appeal or to submit the case to the High Court, If, however, the parties so require it, the District Court has no discretion at all: it is bound to submit the case for the orders of the High Court. So that, as we read the law, on a case so submitted the High Court has full power to consider the matter of jurisdiction or to deal with the case on the merits, so as to do substantial justice without necessarily putting the parties to the expense of a fresh trial. Unless this is the intention of the Legislature, the enactment of Section 64-6B seems to be without any meaning or object. Consequently Section 646B must be read with Section 16 of the Provincial Small Cause Courts Act so as to modify its full effect in a case wrongly tried by an ordinary Civil Court and taken on appeal to the District Court. In this view of the law we are of opinion that the parties having in both the lower Courts submitted to the jurisdiction of the ordinary Courts, it is not competent to either of them on second appeal to plead the want of jurisdiction in those Courts so as to render all proceedings taken in the suit void. The defendant, however, contend? that he is entitled to a second appeal, and to ask for judgment on points other than that of the special jurisdiction. But the suit is of the nature cognizable by a Court of Small Causes, and the amount of the subject-matter does not exceed five hundred rupees, so that a second appeal is barred by Section 586 of the Code of Civil Procedure. The second appeal must, therefore, be dismissed with costs.