1. These are six applications made to this Court under the provisions of Section 115 of the Civil Procedure Code and of Section 195 (6) read with Section 195 (7) (c) of the Code of Criminal Procedure.
2. In each case the applicant was the defendant and the opposite party the plaintiff in a suit brought in the Court of Small Causes, Calcutta. The suit having been dismissed, the defendants applied to the Trial Judge for sanction to prosecute the plaintiffs under Sections 209 and 193 of the Indian Penal Code. Sanction having been refused, in these applications, for the hearing of which I and Chaudhuri, J., have been constituted a Divisional Bench by his Lordship the Chief Justice, we are invited to revise and set aside the order of the Judge of the Court of Small Causes and to giant the sanction for which application was, and is, made.
3. At the hearing Babu Manmatha Nath Mukerjee, a Vakil enrolled and ordinarily practising in this Court, was authorised by the plaintiffs-opposite parties to appear and plead on their behalf and the question therefore, arose whether in these matters he as a Vakil was entitled to be heard On this question we have heard on the one side the learned Advocate-General on behalf of the Bar, and also learned Counsel appearing on behalf of the Incorporated Law Society and of the Attorney on the record, and on the other side the learned Government Pleader Mr. Ram Charan Mitter, appearing on behalf of the Vakil Bar. I have now to give my reasons for holding, as differing from my learned colleague I did, that in the matters now before us the Vakil claiming the right of audience was entitled to be heard. As, however, the question is to be determined only incidentally to and for the purposes of the hearing before us, I need not set out my reasons at any great length.
4. It is not disputed that as the order sought to be set aside is one made by a Civil Court, we are sitting as a Divisional Bench in the exercise of the civil and not of the criminal jurisdiction of this Court. That question, though there arising in connection with an order under Section 476 and not as here an order under Section 195 of the Code of Criminal Procedure, has been decided by a Full Bench in the case of Har Prasad Das v. Emperor 19 Ind. Cas. 197 : 40 C. 477 : 17 C. L. J. 245 : 14 Cr. L. J. 197 : 17 C. W. N. 647. In this connection I may refer also to the case of Bam Prosad Mallav. Raghubar Malla (2).
5. The question then in effect is whether we are sitting in a matter appertaining to the ordinary original civil jurisdiction, or, as the learned Advocate General apparently prefers to put it, to the original side of this Court.
6. Now, the Court of Small Causes, Calcutta, is no doubt within, and the local limits of its jurisdiction are co-terminous with, the local limits of our ordinary original civil Jurisdiction.
7. The learned Advocate-General's contention then is that it is the original side' of this Court that has inherited the jurisdiction formerly exercised by the Supreme Court over the Court of Small Causes (then known as the Court of Requests), and in sup port of this contention he has relied mainly on Article 21 of the Charter establishing the Supreme Court Sections 9 and 13 of the Indian High Courts Act, 1861, Clause 12 of 4 Ind. Cas. 6 : 37 C. 13 : 13 C. W. N. 1038 : 10 Cr. L. J. 454 the Letters Patent 1865, the decisions of Sale, J., in Sarat Chandra Singh v. Brojo Lai Mukerjee 30 C. 986 in Ramdin Bania v. Sew Baksh Singh 6 Ind. Cas. 473 : 37 C. 714 : 14 C. W. N. 806 : 11 Cr. h. J. 357 and of Pugh, J., on the hitherto prevailing practice of the Court, and on the observations on questions of jurisdiction to be found in Rodricks v. Secretary of State 21 Ind. Cas. 1: 40 C. 308. He has further made reference to Rule 9 (also Rule 4) of Chapter XXXIV of the Rules and Orders of the High Court (Original Side) 1914 and to the case of Mahomed Ali v. Emperor 20 Ind. Cas. 977 : 41 C. 466 : 18 C. W. N. 1 : 14 Cr. L. J. 497.
8. On the other hand, Mr. Ram Charan Mitter has relied mainly on Section 4 of, the Legal Practitioners Act, XVIII of 1979, and the proviso inserted in that lection by Act I of 1908, Section 6 and the 1st Schedule of the Presidency Small Cause Courts Act, XV of 1882, the definition of the term 'High Court' to be found in the Criminal Procedure Code, and in the General Clauses Act, X of 1897, on the cases reported as Toolsee Doss Seal, In re 7 W. R. 228; Halaghar Maiti v. Choytonna Maiti 30 C. 588 : 7 C. W. N. 547 and Jamna Das v. Sabapathy Chetti 12 Ind. Cas. 521 : 36 M. 138 : 10 M. L. T. 278 : (1911) 2 M. W. N. 259 : 21 M. L. J. 1074 : 12 Cr. h. J. 545 and on the observations of Mookerjee, J. in his appellate judgment in the present applications. See Ludhu Lal v. Chetty Gope 39 Ind. Cas 465. Ed.
9. Having carefully considered all the arguments advanced on either side, I am satisfied that the learned Advocate General's contention cannot be supported. It appears to be based on the erroneous assumption that the Judges appointed by the. Chief Justice from time to time to exercise the ordinary original civil jurisdiction constitute in some mysterious way a separate and independent Court. It also appears to confound or fails to distinguish between 'jurisdiction' and the area over or the local limits within which that jurisdiction is exercised.
10. The Rule of Court to which we have been referred (Original Side, Chapter XXXIV, Rule 4) framed in 1903, no doubt, indicates the Judge to whom, in accordance with the order bf the Chief Justice, applications such as the present must be made, but no such Rule or order judicially determines or can determine what jurisdiction the Judge entertaining the application will then proceed to exercise.
11. In Rodricks v. Secretary of State (5) the learned Judges followed an authoritative decision of a Divisional Bench, while the decisions of Sale, J., in Sarat Chandra Singh v. Brojo Lal Mukerjee (3) and Pugh, J. in Ramdin Bania v. Sew Bakhsh Singh (4) though entitled to great respect, are the decisions of single Judges and appear to be based merely on practice. But practice and, I may perhaps add, prejudice must give way to law and to the rights conferred by law.
12. In the present matters, original jurisdiction has been exercised and exhausted by the Court of Small Causes. That Court is no part or branch of this Court but is an inferior or subordinate Court and in dealing with it's judgments or orders this Court, in my view, is a superior Court exercising not original but appellate or revisional jurisdiction. From this and the provisions of Section 4 of the Legal Practitioners Act, it follows that in these matters the Vakil who has claimed the right of audience is entitled to be beard.
13. I am sorry I am unable to agree with my learned colleague on the preliminary point argued in connection with these applications, namely, as to the right of audience claimed by the learned Vakil for the opposite party, whose contention is that the Vakils of this Court have such right under Rule 4, Chapter II, Original Side, read with Section 4 of the Legal Practitioners Act, namely, to appear and plead in all cases except before a Judge of the High Court, Division Bench or High Court exercising original jurisdiction in a Presidency town.' He contends that our Rule only restricts their right when the original side exercises its original jurisdiction. He further contends that if Rule 9, Chapter XXXIV, Original Side, corresponding to appellate side, Rule 5, Chapter II, which provides for the hearing of applications under Section 115, Civil Procedure Code, by a single Judge on the original side, stands in the way of Vakils' appearing in such applications, it is ultra vires. The learned Government Pleader has been heard on behalf of the Vakils and the Advocate-General on behalf of the Bar and the Incorporated Law Society for the Attorneys of the Court, who contest the right so claimed.
14. The question has arisen in these circumstances. Six applications were made to me, when I was sitting on the original side, on behalf of the defendants in the above-mentioned Small Cause Courts suits, against an order passed by a learned Judge of the Presidency Small Cause Court refusing sanction to prosecute the plaintiffs. The applications were headed: In the matter of Section 115, Civil Procedure Code.' I issued a Rule on the plaintiffs to show cause why that order should not be set aside. They appeared by Counsel and I held that the learned Judge had wrongly declined jurisdiction, having erred in holding that an application for leave to sue in the Small Cause Court was not a stage in a judicial proceeding. I also held he had erred in refusing the applications on the ground of delay. I held that the delay had been satisfactorily accounted for. As he had not dealt with the merits of the applications, but had thrown them out on preliminary points, I remanded them, directing an enquiry on the materials which had been placed before him. In the course of argument it was suggested that the applications before me did not come under Section 115, Civil Procedure Code. I held it was unnecessary to consider the question, as it was practically conceded by learned Counsel for the plaintiffs (opposite party) that the Court over which I then presided, as the superior Court of the Presidency Small Cause Court, had power to deal with the applications under Section 195, Criminal Procedure Code. I said that, if necessary, the heading of the applications would be amended.
15. The plaintiffs appealed against my judgment, under Section 15 of the Letters Patent, to the Bench hearing appeals from the original side. That Bench consisted of the Chief Justice and Mookerjee, J. They held that I was right on both the points decided by me, but were of opinion that my order of remand was wrong, and the learned Chief Justice 'remitted' the applications to Teunon, J., and myself as a Special Bench for disposal on their merits. The order does not specify the jurisdictions in which we are sitting as a Special Bench. Clearly the Appellate Bench, as such, had no jurisdiction to remand the applications to any other Bench of this Court, than to the Court on the original side. It is also to be noticed that the original side is in no sense a Court subordinate to the Appellate Bench of the same Court which hears appeals thereform, and an application by way of appeal to it under Section 195, Criminal Procedure Code, does not appear to me to be competent: Than Pe v. Ba Than 11 Ind. Cas. 1005 : 4 Bur. L. T. 206 : 12 Cr L J. 469 : 6 L. B. R. 25 The Appellate Bench, however, dealt with the matter under Section 15 of the Letters Patent. Whatever, my views may be about the power of the superior Court to remand when the Subordinate Court declines jurisdiction on a preliminary point and does not deal with the merits of a matter, especially in cases like these, when the superior Court by dealing with them may deprive the opposite party of the right of appeal, we are bound to deal with these applications as having been rightly remitted to m as a Bench specially constituted by the learned Chief Justice, although it strikes me that if I had no power to remand to the Small Cause Court under Section 195, Criminal Procedure Code, the Appellate Court similarly had no such power. This Bench has been constituted by him not as a member of the Court of Appeal, but by virtue of his statutory power as Chief Justice under Section 14 of the High Courts Act (24 & 25 Vict. C. 104). As I have pointed out he has not mentioned the jurisdiction. He has 'remitted' the applications to us, which to my mind implies that he has sent them back to the Court where they were originally made, namely, to the original side. It has been argued that as Mookerjee, J., has held that Section 195, Criminal Procedure Code, creates a 'special jurisdiction,' there applications must be taken as made to us not in the exercise of the original jurisdiction of this Court, This seems to me to be based upon a confusion as to the meaning to be attached to the word 'jurisdiction'. The learned Judge says: 'The true view is that Section 195 creates a special jurisdiction, as explained in Bapu v. Bapu 14 Ind. Cas. 305 : 22 M. L. J. 419 : J.1 M. L. T. 367 : (1912) 1 M.W.N. 499 : 13 Cr. L. J. 209 : 39 M. 750' Reference to that case shows that the learned Judges do not use the expression 'jurisdiction' and, if I may say so with respect, correctly use the words special power.' They held that the power conferred by Section 195 (6) Criminal Procedure Code, was not a part of the Appellate and Revisional Jurisdiction of the Court under Chapters XXXI and XXXII, Criminal Procedure Code, but that it was a special power.
16. One of the questions before us appears to be whether Section 195, Criminal Procedure Code, cuts down the power which the High Court has under Section 115, Civil Procedure Code, or its power of superintendence under Clause 15 of the High Courts Act. I understood my learned colleague to agree with me that our revisional powers have not been so out down. Argument at the Bar proceeded upon the same basis: Section 195 (6) and (7) seem to me to deal with a special case of revision. The power is in the High Court it has not been newly created. It is covered by Clause 15, and Section 115, Civil Procedure Code and Section 195 (6), Criminal Procedure Code, are specific instances where we can exercise our revisional powers. It does not seem to me that a new power has been conferred upon us by Section 195 (6), nor has it created a special jurisdiction. The dependent question is are we sitting on the Original Side? Are we hearing these applications as the principal Court of original jurisdiction situate in Calcutta? That we undoubtedly are. At the conclusion of the argument my learned colleague was of opinion that the Vakils had the right to appear in such applications, and claimed that under Clause 36 of the Letters Patent (1865) his opinion as that of the Senior Judge of this Bench should prevail. Although I was not quite prepared to accede to it, I had no desire to discuss the matter, as it seemed doubtful to me at the time, if the difference between us could be referred to a third Judge or a Full Bench of this Court. I thought that time and trouble would be saved by my hearing the learned Vakil for the opposite party on the merits of the applications and I accordingly heard him, specially as it is always a pleasure to hear him, and also because it was clear to me that an instance of this nature could not be looked upon as establishing a precedent against other decisions of this Court. It strikes me that a question relating to the rival claims of different sections of legal practitioners of this Court involving rules framed by the Full Court cannot be determined in this way. Such questions are not settled by the opinion of a single Judge or of a Division Bench of this Court. I venture to think that discussions which tend to disturb the well-established practice of this Court, or create a feeling of uncertainty about it should not be encouraged. Such discussions sometimes cause irritation between different branches of the profession, which is always unfortunate. Applications under Section 195, Criminal Procedure Code, are so rare that the right, if conceded, is not likely to be of much practical value. I did not, therefore, think it right to dissent from my learned oolleague and bring matters to a deadlock for the time being. We then heard the learned Vakil. I think it unnecessary in the circumstances to give reasons for my views in detail. Having, however, been associated with the original side of this Court for over thirty years as Advocate and Judge and claiming knowledge of the practice of the Court, I think it may be useful to record my view that the statement made by Pugh, J., in Ramdin Bania v. Sew Baksh Singh (4) about the practice of this Court in respect of applications under Section 622, now Section 115, Civil Procedure Code, in matters arising out of proceedings in the Presidency Small Cause Court, is entirely correct. He says: There has been a well-established practice for at least 50 years that these applications under Section 622 should be made on the original side of this Court, and it was considered settled that these applications should be made on the original side by Counsel.' Sale, J., said the same thing in Sarat Chandra Singh v. Crop Lai Mukerjee (3): 'it is a remarkable fact that the jurisdiction of a Judge sitting on the original side to exercise revisional powers over the Presidency Small Cause Court, which is now challenged for the first time, has been exercised ever since the establishment of the High Court, over 40 years ago, as its records abundantly show. Within this period innumerable applications have been heard and determined by single Judges sitting on the original side of this Court.' I am aware that in Haladhar Maiti v. Choytonna Maiti (8) Maclean, C. J. said: Applications have invariably been made to the Chief Justice, who can appoint, and who does then and there appoint, himself and the Judge who may be sitting with him to be the Bench to hear the application.' The learned Chief Justice appears to have been misled into making such a statement. It should be remembered that both Sale and Pugh, JJ, were for many years practising members of the Calcutta Bar before they became Judges of the Court. The uniform practice of this Court was sought to be varied for the first time in 1901. Pugh, J., correctly says: 'For some short time prior to 1902, similar applications were successfully made on the Appellate Side by Vakils.' This, however, was put an end to by a decision of Rampini and Pratt, JJ., in Shamsher Mundul v. Ganendra Narain Mitter 29 C. 498. who held that the Bench taking the Presidency group had no jurisdiction in Calcutta, and, therefore, no jurisdiction over the Calcutta Small Cause Court. This question turned on the order of the Chief Justice allocating business to the various Benches, and while this order gave the Presidency group jurisdiction over cases from the 24-Pergannahs---the 24-Pergannahs is not Calcutta. However, another application was made by a Vakil in the case of Haladhar Maiti v. Choytonna Maiti (8) to the Chief Justice Sir Francis Maclean and Mr. Justice Mitra. A preliminary objection was taken based on the last case, but it was overruled on the ground that the learned Judges were not dealing with the matter as the Judges taking the Presidency group, but as a Bench constituted by the Chief Justice to deal with the case, and there could be no question but that the Chief Justice had the power to constitute such a Bench and deal with the application. This correctly states the facts. As against the prevailing practice, the following cases only of applications made to Appellate Divisional Benches of this Court by Vakils have been referred to by the learned Government Pleader (I) Toolsee Doss Seal, In re (7), (II) Ananta Coomari Dassi v. Badharani Dassi (13) (III); Jadu Mani Boistabee v. Ram Kumar Chakravarti (14) (IV) Shamsher Mundul v. Ganendra Narain Mitter (12) and (V); Haladhar Maiti v. Choytonna Maiti (8). It will be noticed that between 1867 and 1901 not a single case can be found in our Law Reports to show that such applications were made by Vakils on the Appellate side of this Court. In the case of Ananta Coomari Dassi v. Radharani Dassi 3 C.L.J. 199. the learned Judges referred to the case of Pursonchund Golacha v Kanooram 10 B.L.R. 355 : 19 W.R. 203. which was an application on the original side of the Court. The Judges in the case of Jadu Mani Boistabee v. Ram Kumar Chakravarti (14) were Rampini and Pratt, JJ. The same Judges held in Shamsher Mundul v. Ganendra Narain Mitter (12) that the Bench taking the cases of the Presidency group had no jurisdiction over the Court of Small Causes at Calcutta. The statement of the Chief Justice in Haladhar Maiti v. Choytonna Maiti (8) as to the practice is not correct, as' I have already pointed out. The case of Toolsee Das Seal; In re (7) related to an application made by a Vakil of this Court, that he had a right to be heard in the Presidency Small Cause Court, where he had been refused audience. This Court did not issue a Rule on the Presidency Small Cause Court, as the learned Vakil's client had succeeded in the suit in that Court, That case therefore, gives us no help, and the other cases, between 1901 and 1903 above referred to only show the attempt which was made during that period to unsettle the established practice of this Court. The matter was eventually set at rest in 1903 by Rule 9, Chapter XXXIV, Original Side, which confirmed the prevailing practice, The Index Book of the original side of this Court relating to such applications shows that hundreds of these applications have been made on that Side since 1883. In the earlier Index Book all miscellaneous matters have been mixed up and it is difficult to separate the applications in re vision. I may state that such applications are almost daily made on the original side on motion days.
17. It is well established in this Court, after the Full Bench ruling in Har Prasad Das v. Emperor (1) that Section 439 of the Criminal Procedure Code has no application to an order passed under Section 476, Criminal Procedure Code, but the High Court can exercise the powers vested in it by Section 115 of the Civil Procedure Code or Section 15 of the High Courts Act, and that the Criminal Bench as such has no jurisdiction to deal with the matter in revision. The ruling in Salig Ram v. Ramji Lal 28 A. 554 : 3 A. L. J. 394 : A. W. N. (1906) 103 : 3 Cr. L. J. 400 : 1 M. L. T. 219. is that the High Court has no jurisdiction, in the exercise of its revisional powers on the criminal side, to interfere with orders relating to sanction under Section 195, Criminal Procedure Code. The same view had been accepted by this Court. Although we two now constitute the Criminal Bench of this Court, these applications have not come up before us in our criminal jurisdiction. The Civil Appellate Division Benches of this Court, which deal with particular provincial Courts, or groups of such Courts, have no jurisdiction as such over the Presidency Small Cause Court. The local jurisdiction of the Presidency Small Cause Court coincides with that of the original side of this Court (Section 17, Act XV of 1882). The law administered by that Court has to be dealt with it and determined according to the law for the time being administered by the Original Side of our Court (Section 16, Act XV. of 1882). The Presidency Small Cause Court is subordinate to the High Court. The original side is a Court within the meaning of the Civil Procedure Code and is a portion of the High Court. Without any more it would be natural and logical to hold that the Presidency Small Cause Court is subordinate to the original side of the High Court.
18. The question historically looked at leads to the same conclusion. The present Presidency Small Cause Court has taken the place of the Court of Requests, which was placed under the order and control of the Supreme Court by the Charter of Justice arid Proclamations in the same manner as the inferior Courts in England were then subject to the order and control of the Court of Queen's Bench---see Section 21 of the Charter of the Supreme Court (14 Geo. III, 1774). In the Proclamation of the Governor-General-in-Council, dated 18th March 1802, declaring the jurisdiction powers and practice of the Court of Commissioners for the recovery of small debts, it was provided that the said Court and its proceedings were subject to the control of His Majesty's Supreme Court in as full and ample a manner, to all intents and purposes, as the former Court of Requests (see the Proclamation in Sm. and Ryan's Rules and Orders, Vol. II, App. XVI, Act IX of 1850) constituted the Presidency Small Cause Court the Judges of the Supreme Court virtate officii, as such Judges exercised control over that Court. The Supreme Court possessed no appellate jurisdiction, but had local jurisdiction, the same as the original side of this Court now has. By the High Courts Act (24 and 25 Vict. C. 104), Her Majesty was empowered to erect a High Court at Fort William in Bengal. It was provided that upon the establishment of such High Court, the Supreme Court and Sadder Dewahy and Sudder Nizamut Courts should be abolished. Section 9 enacted as follows:---'Each of the High Courts to be established under this Act shall have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established as Her Majesty may by such Letters Patent as aforesaid grant and direct subject, however, to such directions and limitations as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby, and save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last-mentioned Courts.' In 1862 the Letters Patent were granted. By these the High Court was vested with civil and criminal jurisdiction, both original and appellate, By the Letters Patent of the 28th December 1865, the earlier Letters Patent of 18o2 were revoked. Thus then the High Court inherited all jurisdiction and every power in any manner vested in the Supreme Court and the Sudder Dewany and Sudder Nizamut Courts. This High Court was thus the successor of the Supreme Court with territorial jurisdiction confined to the Presidency Town of Calcutta and as the Supreme Court was not a Court which had power of superintenence over the Mofussil Courts, the original side did not and does not possess such power, and similarly as the appellate side dealing with appeals from Provincial Courts has no jurisdiction over the Presidency Small Cause Court, the power of superintendence over it, which the Supreme Court had, remained in the original side of the High Court. There are some large powers which still remain in the original side of the High Court as the successor of the, Supreme Court which do not belong to the appellate side of the Court, although it is correct to say that they belong to the High Court, taking the two sides collectively. Take the jurisdiction of the High Court in matters of contempt. The question was elaborately discussed in the matter of Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 17 C. W. N. 1253 : 18 C. L. J. 452 : 41 C. 173 : 14 Cr. L. J. 321. where it was held by Sir Lawerence Jenkins, C. J., that in case of interference with the due administration of justice by a Division Bench of this Court in relation to a criminal appeal pending before it, if such interference amounted to an offence under the Common Law, this Court has power to deal with it on its Crown Side, that is to say, in its original criminal jurisdiction, that power having been inherited by it from the Supreme Court.
19. It is unnecessary to multiply instances as to the special powers inherited by the High Court from the Supreme Court, which are exercised on its original side. Historically, therefore, the power of superintendence, direction and control which was possessed by the Supreme Court over the Presidency Small Cause Court appertains to the original side of this Court. It seems clear to me that all such powers, when exercised by the original side, are exercised in its original jurisdiction within the meaning of Section 4 of the Legal Practitioners Act. It is not, as was suggested during argument, an exercise of its extraordinary original jurisdiction which is defined by Clause 13 of the Letters Patent (1865). The original side has, of course, no appellate jurisdiction and the appellate jurisdiction of the Divisional Benches of this Court is not available in respect of proceedings in connection with the Presidency Small Cause Court. Broadly speaking, the re visional power which is invoked in respect of such proceedings appertains, as I have tried to show, to the original side, logically, historically and as a matter of practice. It has not been doubted that the High Court in its original side has power to issue a writ of certiorari, which is a writ to an inferior Court to call up the records of a cause therein depending, that conscionable justice may be therein administered. In 1884 an application was made to Pigot, J., who was then sitting on the original side of this Court, for such a writ to bring up certain proceedings relating to an assessment before the Commissioner of the Calcutta Corporation. He granted the Rule, but eventually discharged it on its merits. The appeal from it was entertained as an appeal from original civil jurisdiction see Nundo Lal Bose v. Corporation of Calcutta 11 C. 275 : 5 Ind. Dec. (N. S.) 943. Garth, C. J. held: 'The authority of this Court to remove the proceedings of inferior Courts, in the exercise of their judicial functions, is undoubted. It is an authority derived from the old Supreme Court, and is similar to that which was exercised by the Court of Queen's Bench in England, and, if the Commissioners in this case were exceeding their jurisdiction in making the assessment, it seems clear that we have the power to quash it upon certiorari, notwithstanding the provision in Section 17 in the Calcutta Municipal Consolidation Act, 1876,' but as it appeared that the Commissioner had acted within their powers the appeal was dismissed. Wilson, J., took the same view. The right of a single Judge sitting on the original side of this Court to issue such a writ was not questioned in that case, although eminent Counsel appeared and contested that matter. Such a power is in its nature revisional. It is conceded that applications, under Section 115, Civil Procedure Code, in respect of the Presidency Small Cause Court appertain to the original side, under our rules. It seems to me necessarily to follow that the ordinary incidents of the procedure of that Court attach to such applications. Clause (21) of the Supreme Court Charter has no doubt been repealed by Section 2 of the present Presidency Small Cause Courts Act (XV of 1882) and the power of superintendence is now given by Section 6 of that Act. To my mind it makes no difference, as the Appellate Divisional Benches of this Court as such have no power of superintendence over the Presidency Small Cause Court in the same way as the original Court has no jurisdiction. over the Provincial Small Cause Courts. Act XI of 1865 consolidated and amended the law relating to the Courts of Small Causes established beyond the local limits of the ordinary original civil jurisdiction of the High Court of Judicature. Section 4 of that Act provides that these Courts are subject to the general control and order of, the High Court, which is defined in Section 1 as the highest Civil Court of Appeal, which is practically the same definition as we find in the General Clauses Acts of 1868 and 1897. Act IX of 1837 has taken the place of Act I of 1865, which also excludes the ordinary original Civil jurisdiction of this Court. Section 25 gives revisional jurisdiction to the High Court, which is exercised by our Appellate Division Benches and Section 28 gives administrative control and superintendence to the High Court, in the same way as Section 6 of the Presidency Small Court Act gives it to the High Court. The Presidency and the Provincial Small Cause Courts have been deliberately kept separate. The law, the practice and procedure in each of them are different. References from the former are heard by that Bench of our Court which deals with appeals from the original side, and those from the latter by the Appellate Division Benches. To hold that the Revisional Jurisdiction of this Court over the Presidency Small Cause Court cannot be exercised except by a Special Bench constituted for the purpose in my opinion unnecessarily multiplies the machinery by which the powers of this Court are exercised. Section 13 of the High Courts Act gives power to the High Court to make its own rules for the exercise by one or more Judges or by Division Courts constituted by two or more Judges of the Court, of the original and appellate jurisdictions vested in the Court, in such manner as may appear to the Court to be convenient for the due administration of justice. Section 14 gives the Chief Justice the authority to determine what Judges shall sit alone or in Division Courts. Why in rare applications relating to sanctions of the character now before us, the ordinary Benches' of bur Court should not be held sufficient, I candidly confess, I fail to understand. It seems to me unnecessary to disturb the established practice of this Court for such applications. Even as late as 1913, such an application as is now before us, was made to Chitty, J., exercising original jurisdiction. See In the matter of Section 115, Civil Procedure Code and 15 of the Charter and in the matter of sanction to prosecute Awood Narain Panday, unreported, decided on 15th December 1913. Although I have stated some of the grounds for my decision, in the view that our respective judgments in a matter of this nature are not likely to have any binding effect I refrain from elaborating them. I think, however, I ought to point out that the practice as to applications by way of appeal under Section 195, so far as Madras was concerned was changed in 1902 after the decision of that eminent Judge Sir Bhashyam Iyenger, in In re Chennanagoud 26 M. 139 : 2 Weir 197. In Madras they have since been dealt with under Section 622 now Section 115, Civil Procedure Code, and the present practice there has been looked upon as its settled practice for the last 14 years. Since 1902 also the Allahabad Court changed its views---see the judgment of Burkitt, J., in Emperor v. Muhammad Khan A. W. N. (1902) 202. and In the matter of the Petition of Dhup Kunwar 26 A. 249 : A. W. N. (1904) 15 : 1 Cr. L. J. 73. The observation of Banerjee, J., in the case last cited is worthy of note, namely that the Court should be loath to depart from the established practice unless convinced that it has not the sanction of law and is grossly erroneous. The practice of the Court forms the law of the Court. The original side has, as I have shown, always exercised revisional powers over the Presidency Small Court under Section 115, Civil Procedure Code, and 15 of the Letters Patent Why it should not exercise similar power in respect of proceedings under Section 195 of the Criminal Procedure Code I do not understand. In Ex parte Cox (1888) 20 Q. B. D. 1 : 57 L. J. Q. B. 98 : 58 L. T. 323 : 36 W. R. 209 : 52 J. P. 484. Lord Esher said that when a Judge had thought it necessary for the' purpose of a ease to make a deliberate examination of the practice of his work and to state such practice such statement was entitled to great weight. In connection with the question of practice now before us we have at least two learned.... Judges of this Court who made such an examination. In Attorney' General v. Marquis of Ailesbury (1887) 12 A. C. 672 : 57 L. J. Q. B. 83 : 58 L. T. 192 : 36 W. R. 737. Lord Halsbury, L. C, said a Judge was Mot at liberty to assume against a well-established practice of the Court followed by eminent1 Judges that the Court or they were in error as to their powers and jurisdiction. In Liverpool Bread Company v. Firth (1891) 1 Ch. 367 : 60 L. J. Ch. 153 : 63 L. T. 677 : 19 W. R. 269. Stirling, J., said that it was much better to adhere to what had been the practice than that a single Judge should attempt to set up what he considers as better practice. In this case there is no question of any fundamental principles of justice being in danger and it seems to me that no case has been made out for making a departure, for introducing a novelty for the sake of novelty. I hold that we are now sitting on the original side of the Court, exercising such jurisdiction as is ordinarily exercised on that side.
20. The division of work in the Madras High Court is entirely different from that of our Court. The appellate work of the Madras Court is assigned to Benches constituted for the disposal of particular classes of work and not according to groups of districts. Applications under Section 195, Criminal Procedure Code, are treated there as Civil Miscellaneous Appeals or as Appeals from Orders, and recently, so far as I have been able to ascertain, the Madras High Court has assigned all cases under Section 195, Criminal Procedure Code, whether on the criminal or civil Side, to the Judges doing the criminal work of the Court, who also deal with a Civil Miscellaneous List. In Madras, Vakils have the right to appear on the original side and, therefore, the practice of that Court or its rulings with reference thereto do not give us any help and I need not, therefore, discuss them.
21. On the merits of the case their Lordships delivered the final judgment as follows:
22. In these six matters it appears that two plaintiffs Budhu Lal and Raghunath Lall brought respectively 7 suits and 22 suits against different defendants in the Presidency Small Cause Court. The defendants being resident beyond the jurisdiction, in each case the plaintiff applied for leave to sue, and in support of his application swore that the money for the recovery of which the suit was brought had been lent in Calcutta.
23. On the 23rd of March 1914, all the 29 suits were dismissed, in each case on the special oath of the defendant.
24. Thereafter on the 21st December 1914, in each case application was made on behalf of the defendant for a sanction to prosecute the plaintiff under Section 209 of the Indian Penal Code in respect of the claim and under Section 193 in respect of the statement made in the application for leave to sue. Of the 29 applications, only the 6 now before us were proceeded with and these were eventually dismissed by the Judge of the Court of Small Causes on the 14th of June 1915. The dismissal was on two grounds, namely that an application for leave to sue is not a stage of a judicial proceeding and that there had been undue delay in making the application for sanction.
25. Against the orders refusing sanction, applications were then made to this Court under Section 115 of the Civil Procedure Code and Section 195 (6) read with Section 195 (7) (c) of the Code of Criminal Procedure. These applications were made to Chaudhuri, J., then sitting in the exercise of the original jurisdiction of this Court and at the hearing of the Rules then issued that learned Judge directed that the Judge of the Small Cause Court should make further inquiry and thereafter dispose of the applications.
26. Against his orders appeals were preferred and the Appellate Court has held that under the provisions of Section 195 (6) the superior Court though competent to act upon evidence taken before itself or taken by the Subordinate Court under its direction is not competent to make a remand to the Subordinate Court for further inquiry and decision.
27. The orders of Chaudhuri, J., were accordingly set aside and the applications remitted for re-hearing and his Lordship the Chief Justice has constituted us a Divisional Bench for the purposes of this re-hearing.
28. When the application came on for hearing a question arose whether Babu Manmatha Nath Mukerjee through whom the plaintiffs opposite parties desired to be heard was entitled as a Vakil to appear and plead on behalf of his clients. In accordance with the opinion of the Senior Judge on this question we have heard Babu Manmatha Nath Mukerjee and now proceed to determine the question whether with or without further inquiry sanction should be given to the several applicants for the prosecution of the plaintiffs opposite parties.
29. It is not now contended that an application for leave to sue is not a stage in a judicial proceeding and in view of the opinions expressed by Chaudhuri, J., and by the Appellate Court the learned Vakil appearing for the opposite parties has wisely refrained from contending further that the delay has not been sufficiently explained.
30. The further materials before us in each case are an affidavit by the applicant defendant and an affidavit by the plaintiff. No doubt the verification by the defendant's application is faulty but he does therein swear that the suit brought against him is wholly false and that he had never been in Calcutta prior to its institution. Having considered this affidavit, having regard also to the decision in all six suits, and to the fact that even now though the plaintiff says he has independent evidence, there is no affidavit in support of his own, we think that it is unnecessary to take further evidence at this stage and that a case for the grant of sanction has been made out. In each case we, therefore, set aside the order of the Small Cause Court and grant to the. petitioner sanction to prosecute the plaintiff opposite party under Section 209 of the Indian Penal Code in respect of his claim, and under Section 193, Indian Penal Code, in respect of the statement made and in support of the plaintiff's application for leave to sue, namely the statement that the principal money claimed was lent in Calcutta.
31. I agree that sanction should be granted to prosecute the plaintiffs as applied for; I have nothing to add to the judgment delivered by my learned colleague.