1. This application raises the question as to the meaning of the last clause of Section 70 of the Small Cause Court Act. The plaintiff obtained judgment in the Small Cause Court for a portion of his claim. So far as that portion of his claim as is based on an alleged breach of contract is concerned it was dismissed, and it appears from the record of the suit that judgment, allowing only a portion of the plaintiff's claim, was given by the learned Chief Judge contingent on the opinion of the High Court.
2. The plaintiff, not desiring to proceed with the reference, did not furnish security, but within the period allowed for that purpose applied for a new trial. When that application came on for hearing it was objected that, having obtained a judgment contingent on the opinion of the High Court, and having failed to furnish security under Section 70, the plaintiff must be deemed to have submitted to the judgment of the Small Cause Court in the sense that it was final and conclusive for all purposes.
3. That contention can only be correct if, in asking to have the judgment of the Small Cause Court made contingent, the plaintiff necessarily abandoned the remedies which the Act gives him under chapter VI.
4. It seems to me that such a construction of the words of Section 70 of the Act ought not to be adopted, unless it clearly follows from the language of the Act that that was the meaning the Legislature intended the section to bear.
5. It seems to me that the words may reasonably bear this construction that, in failing to give security, the plaintiff is to be deemed to have submitted to the judgment as final and conclusive, within the meaning of Section 37 of the Act, that is to say, the judgment became final and conclusive save as provided by chapter VI.
6. If that be so the plaintiff would still have the remedies which that chapter gives him.
7. It seems to me that the construction of Section 70 should be adopted, which is more favourable to a litigant in preserving to him the remedies which the Act specifically gives him, and that the remedies once given by the Act should not be regarded as abrogated or taken away by the Act except where the language is clear and necessitates such a construction.
8. I think, therefore that the Small Cause Court had jurisdiction to entertain the application for a new trial, and that such application ought to be heard and determined on its 'merits. I think the costs of the present application? should be costs in the application for a new trial.
9. Mr. Palit.-We were made to pay the costs of our application to the Small Cause Court for a new trial. They ought to be returned to us as that order is reversed.
10. My order will include those costs.