B.K. Mukherjee, J.
1. The opposite party in this rule instituted a suit against the petitioner for recovery of house rent and damages in the Court of the Sixth Munsif at Dacca, and the suit was registered as small cause court Suit No. 312 of 1940. When the suit came up for hearing, the trying Munsif was of opinion that it would be necessary to consider certain questions of title relating to immovable property for the purpose of giving relief to the plaintiff, and he returned the plaint under Section 23, Provincial Small Cause Courts Act, with a direction to file it in the proper Court where the question of title could be decided. The plaint was thereupon re-filed in the Court of the Second Munsif at Dacca and was registered as Money Suit No. 123 of 1940. The suit was heard as a money suit in the ordinary way and the Court made a decree in favour of the plaintiff on 8th June 1942, the entire claim for rents and damages made by the plaintiff being allowed.
2. Against this decision, the petitioner took an appeal to the Court of the District Judge at Dacca. The learned District Judge by his order dated 17th August 1942, dismissed the appeal holding inter alia that no appeal lay against the decision of the Munsif as the suit was of a nature cognizable by a Court of Small Causes. It is the propriety of this judgment that has been challenged before us in this rule. Under Section 16, Provincial Small Cause Courts Act, a suit cognizable by a Court of Small Causes cannot 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. When, therefore, a Judge invested with Small Cause powers tries a Small Cause Court suit, it is to be presumed that he dealt with the case as a Small Cause Court Judge, and the decision is not open to appeal. This has been held in a series of cases, and reference may be made amongst others to the decisions in Shankarbhai v. Somabhai ('01) 25 Bom. 417, Indra Chandra Mukherjee v. Srish Chandra Banerjee ('13) 40 Cal. 537, Mohini Mohan Roy v. Sankar Das : AIR1924Cal487 and Radhaballabh Guha v. Panchkari Sil : AIR1928Cal153 . It was this principle that was invoked by the learned District Judge, and it was held, by him on the authority of one of the cases referred to above that as the suit still remained a Small Cause Court suit even though it was tried by the Munsif in the ordinary way, the prohibition of appeal as contained in Section 27, Provincial Small Cause Courts Act, would be still attracted to such a decision.
3. In our opinion, the principle enunciated in the cases mentioned above has no application to the facts of the present case. A Small Cause Court cannot finally determine a question of title relating to immovable property though it can incidentally go into such questions for the purpose of giving relief to a plaintiff. Section 23, Provincial Small Cause Courts Act, has given a discretion to the Small Cause Court Judge in this respect, and if he is satisfied that the question of title is of such a nature that it should not be decided summarily, but in a regular Court where evidence can be recorded in full and the decision would be open to appeal, he has a right to return the plaint and direct it to be filed in the Court which has jurisdiction to decide such question of title: vide Ganga Prosad v. Nandu Ram ('16) 3 A.I.R. 1916 Pat. 75. We may take it that the suit remains a Small Cause Court suit even after it is re-filed in the ordinary Court, vide Kali Krishna Tagore v. Izzatennessa Khatun ('77) 24 Cal. 557, but the latter cannot try it any further as a Small Cause Court Judge even though he is invested with such powers. That would frustrate the very object for which Section 23, Provincial Small Cause Courts Act, was introduced.
4. In our opinion, the effect of Section 23, Provincial Small Cause Courts Act, is to remove any bar which might exist by reason of Section 16 of the Act to a trial of a Small Cause Court suit by a Court of ordinary jurisdiction. As has been held by the Bombay High Court in Hari Balu v. Ganpat Rao ('14) 1 A.I.R. 1914 Bom. 302 in order to attract the prohibition of appeal contained in Section 27, Provincial Small Cause Courts Act, it is not enough that the suit was one cognizable by a Court of Small Causes. It is necessary that it should be decided by a Small Cause Court Judge. But, as the second condition cannot be fulfilled when the suit is tried by an ordinary Court after the plaint is returned by a Small Cause Court under Section 23, Provincial Small Cause Courts Act, Section 27 of the Act would not apply and the decision would be open to appeal under Section 96, Civil P.C. though the suit being a Small Cause Court suit, the right of second appeal would be subject to the provisions of Section 102 of the Code.
5. We think, therefore, that an appeal lay against the decision of the Munsif in the present case. Although the learned District Judge, in his judgment, had adverted to other points relating to the merits of the case, nevertheless as the pleader appearing on behalf of the petitioner conceded that the appeal was incompetent, we are inclined to think that the appeal was not properly argued. In these circumstances, we make this rule absolute, set aside the order made by the District Judge and direct that the appeal be reheard by him according to law. We make no order as to costs in this Court. Further costs will abide the result.
6. I agree.