1. This is a reference under Section 69 of the Presidency Small Cause Courts Act, 1882. The suit, which was brought by the buyer against the seller for damages for breach of an indent contract, was instituted on the 18th July, 1922. The trial took place before the Sixth Judge who dismissed the suit on the 18th August, 1922. On the 7th September, 1922, the plaintiff made an application under Section 38 before the Chief Judge and the Sixth Judge who, directed notice to issue. The matter was adjourned from time to time till the 16th February, 1923, when the application was heard in the presence of both sides. There was a further hearing on the 22nd February 1923, when the Court reserved judgment. On the 8th March, 1923, two separate judgments were delivered, one by the Chief Judge, the other by the Sixth Judge. They disagreed in their conclusions. The judgment of the Chief Judge narrates the history of the case, contains an exposition of his view of the law, concludes with the expression of opinion that the suit should have been decreed and formulates two questions which are referred to this Court. The judgment of the Sixth Judge similarly contains a statement of facts, an exposition of the law, and an expression of opinion that the suit had been rightly dismissed by him. We have to consider whether the reference thus made is in conformity with Section 69 of the Presidency Small Cause Courts Act, 1882, and in this commotion two points require examination, namely, first, whether a reference under Section 69 is permissible on an application under Section 38, and, secondly, whether the Court has in this case drawn up a 'statement of the facts' within the meaning of Section 69.
2. As regards the first point, we are of opinion that the Small Cause Court is competent to make a reference under Section 69 on an application under Section 38. Section 38 is in these terms:
Where a suit has been contested, the Small Cause Court may, on the application of either party made within eight days from the date of the decree or order in the suit (not being a decree passed under Section 522 of the Code of Civil Procedure), order a new trial to be held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings.
3. Section 69 is in these terms:
If two or more Judges of the Small Cause Court sit together in any suit, or in any proceeding under Chap. VII of this Act, and differ in their opinion as to any question of law or usage having the force of law, or the construction of a document, which construction may affect the merits, or if, in any suit or any such proceeding, in which the amount or value of the subject-matter exceeds five hundred rupees, any such question arises, and either party SO requires, the Small Clause Court; shall draw up a statement of the facts of the case, and refer such statement, under Section 617 of the Code of Civil Procedure, for the opinion of the High Court, and shall either reserve judgment or give judgment contingent upon such opinion.
4. The decision of Garth, C.J., and Wilson, J., in Nusserwanjee v. Pursutam (1885) 11 Cal. 298 is an authority for the proposition that an order rejecting an application for a new trial, subject to the decision of the High Court on certain point or points referred, is not a contingent judgment within the meaning of Section 69, and points of difference between the Judges at that stage cannot form matters for reference. In support of this view, reference was made to the decision of Couch, C.J., and Pontifex, J., in Hall v. Joakim (1873) 12 B.L.R. 34 On the other hand, the decision of Peacock, C.J., and Mitter, J., in Ishan Chandra v. Haran Sardar (1869) 11 W.R. 525 point to the opposite conclusion. The Madras High Court in Oakshott v. B.I.S.N. Co. (1891) 15 Mad. 179 followed the decision in Nusserwanjee v. Pursutam (1885) 11 Cal. 298. The latter decisions in Madras, however, have uniformly adopted the contrary view: Seshammal v. Munusami (1896) 20 Mad. 358, Rangiah v. Rungiah (1908) 31 Mad. 490, Lodd Gobindoss v. Rukmani Bai (1913) Mad. 438 and Ramasami v. Madras Times Printing and Publishing Co. (1915) 30 M.L.J. 207. In this conflict of judicial opinion, we must turn to the language of the statute and ascertain its plain meaning.
5. Section 69 authorises a reference when two or more Judges of the Small Cause Court sit together in any suit and differ in their opinion as to any question of law or usage having the force of law or the construction of a document, which construction may affect the merits. The term 'suit' is not defined either in the Presidency Small Cause Courts Act or in the Code of Civil Procedure, and its meaning cannot be determined apart from the context. The decisions Gagan Chand v. Casperz (1897) 4 C.W.N. 44 and Batasu v. Jaiti  3 C.W.N. 62 (notes) show that the term 'suit' sometimes includes the appellate stage while Section 10 of the Civil Procedure Code, 1908, speaks of an appeal before His Majesty in Council as a suit. We are not unmindful that, notwithstanding this, it has been held that an application for leave to appeal to His Majesty in Council is not a suit within the meaning of Section 10. Nainappa v. Chidambaram  21 Mad. 18. In Shyama Charan v. Debendranath (1900) 27 Cal. 484, it was held that the term 'suit' includes even execution proceedings, though Venkata Chandrappa v. Venkata Rama  22 Maf. 256 might be invoked to support the view that the term 'suit' does not include an application under Section 47 of the Civil Procedure Code. In Achha Mian Chowdhury v. Durga Charan Law  25 Cal. 146, it was ruled that an application to review an order made in a suit is a proceeding in the suit itself. Again, in Samed Sheikh v. Naba Nepal  19 C.L.J. 310 an application to re-hear an appeal was treated as an application in the suit and not merely an extraneous proceeding which, if granted, in effect revives the appeal. We are not disposed to place a narrow and restricted interpretation upon the term 'suit' in Section 69 of the Presidency Small Cause Courts Act and we cannot find any conclusive reason against the view that an application under Section 38 is a stage in the suit which is not necessarily terminated by the decree. This, no doubt, seems to militate at first sight against the view propounded in Nusserwanjee v. Pursutam (1885) 11 Cal. 298. But Sir Richard Garth, C.J., appears to have overlooked that though Section 69 of Act XV of 1882 was similar in its terms to Section 7 of Act XXVI of 1864, which was in force when Hall v. Joakim (1873) 12 B.L.R. 34 was decided, Section 38 of Act XV of 1882 is materially different from Section 53 of Act IX of 1850 which was moulded on Section 89 of the County Court Act, 1846. Section 53 of Act IX of 1850 was in these terms:
Every order and judgment of any Court holden under this Act, except as herein provided, shall be final and conclusive between the parties; but the Judges shall have power to non-suit the plaintiff, in every case in which satisfactory proof shall not be given to them, entitling either the plaintiff or defendant to the judgment of the Court; and shall also in every case whatever, have the power, if they shall think fit to order a new trial to be had, upon such terms as they shall think reasonable, and in the meantime to stay the proceedings.
6. This, it will be observed, refers to new trial only Section 38 of Act XV of 1882 on the other hand, is far more comprehensive in scope and empowers the Court not only to order a new trial but also to alter, set aside or reverse the decree. The substance of the matter is that on an application under Section 38, the Court may exercise what is essentially appellate jurisdiction. We need not, however, lay stress on the change in the heading of Chap, VI from 'New trials and re-hearing' to 'new trials and appeal' by Section 13 of Act I of 1895. Reference may be made to the decision of the Full Bench in Sai Sikandar v. Ghouse Mohidin  40 Mad. 355, which overruled the decision in Ramdsami v. Madras Times Printing and Publishing Co. (1915) 30 M.L.J. 207 and held that a Pull Bench of the Presidency Small Cause Court sitting under Section 38 has no jurisdiction to decide questions of fact, whether they are raised generally or in consequence of its finding on another question of fact or law. This accords with the view taken in this Court in Sasoon v. Haridas  24 Cal. 455 and Johan Smidt v. Ramprasad  38 Cal. 425. A similar attempt was made unsuccessfully in Cousins v. Lombard Deposit Bank (1876) 1 Ex. D. 404 to maintain the view that Section 6 of 38 and 39 Viet., c. 50, contemplated an extension of the right to appeal in suits arising within what used to be called the common law jurisdiction of the County Court; it is now settled that there is no appeal on questions of fact in that class of cases, though under Section 14 of 13 and 14 Viet., c. 61, not only might a new trial be ordered but judgment entered for either party; Muratagh v. Barry (1890) 24 Q.B.D. 632, Robinson v. Fawcett (1901) 2 K.B. 325 and Clarke v. West Ham Corporation (1914) 2 K.B. 448. We are of opinion that although Section 38 provides for a more extended jurisdiction than what would be technically called a new trial, a jurisdiction analogous to an appeal, yet there is no appeal on facts. But though the power of interference is thus restricted, the application under Section 38 is nevertheless an application in the suit and attracts the operation of Section 69. The conclusion follows that in this case it was competent to the two Judges to make a reference under Section 69 in conformity with the requirements thereof. We may add that this view accords with what has been the recognised practice in recent years notwithstanding the decisions in Nusserwanjee v. Pursutam (1885) 11 Cal. 298 and Okhoy Kumar v. Koylash Chundra (1890) 17 Cal. 387 and Rajendra Mallik v. Nandalal (1904) 31 Cal. 1001 may be mentioned as instances where references under Section 69 made on applications under Section 38 were heard by this Court without objection.
7. As regards the second point, we are of opinion that the reference is not in proper form. Section 69 contemplates a statement of the facts of the case drawn up by the Court, that is, by the two or more Judges where the case is heard by more than one Judge. This cannot create any difficulty, because when an application under Section 38 is heard, the Judges cannot disagree on the facts. There is no appeal on the facts as we have already explained and the facts as found by the trial Judge must be accepted. Consequently, the first step, when a reference is to be made under Section 69 is to draw up a statement of the facts of the case, to be signed by the Judges. They must then formulate the point on which there is a difference of opinion. This statement of facts and of the point on which there is a difference of opinion is to be accompanied by statements of the reasons assigned by each Judge in support of his view. This was emphasised by the Madras High Court in Ramasami v. Madras Times Printing and Publishing Co. (1915) 30 M.L.j. 207: see also Jardine Skinner & Co. v. Money (1870) 14 W.R. 312 and Binode Lal v. River Steam Navigation Co. (1897) 1 C.W.N. 143. Useful examples of a case stated will be found in R. v. Dudlen (1884) 14 Q.B.D. 273 and R. v. Commissioners of Sewers for Essex (1885) 14 Q.B.D. 561. The result is that the reference must be discharged and the records returned to the Small Cause Court so that such steps as may be considered necessary may be taken in accordance with law. Each party will pay his own costs in this Court.