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Atul Chandra Seal Vs. Sheikh Kobadali and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.436
AppellantAtul Chandra Seal
RespondentSheikh Kobadali and anr.
Cases ReferredIndra Chandra v. Srish Chandra
Excerpt:
provincial small cause courts act (ix of 1887), section 23 - small cause court suit involving question of title--suit instituted in court having small cause as well as regular jurisdiction--decision as in regular suit--jurisdiction--irregularity--appeal--civil procedure code (act v of 1908), section 115, order xli, rules 23, 25--remand--revision. - .....an appellate order remanding a suit for re-trial by the munsif of the first court of amta. the suit in question was one for compensation for use and occupation, the amount claimed being rs. 26 and odd. the main question in this rule ia whether any appeal lay from the munsif's decision. the plaintiff filed hia claim in the first court of the munsif at amta and the court was so described in the plaint. at that time and during the trial, the presiding officer of that court had also powers of a small cause court judge to try suits valued upto rs. 100. but in this case, the suit was tried by him in the exercise of his jurisdiction as a munsif and not in the exercise of his jurisdiction as a small cause court judge. the contention on behalf of the petitioner finds some support from the.....
Judgment:

Newbould, J.

1. This Rule is directed against an appellate order remanding a suit for re-trial by the Munsif of the first Court of Amta. The suit in question was one for compensation for use and occupation, the amount claimed being Rs. 26 and odd. The main question in this Rule ia whether any appeal lay from the Munsif's decision. The plaintiff filed hia claim in the first Court of the Munsif at Amta and the Court was so described in the plaint. At that time and during the trial, the presiding officer of that Court had also powers of a Small Cause Court Judge to try suits valued upto Rs. 100. But in this case, the suit was tried by him in the exercise of his jurisdiction as a Munsif and not in the exercise of his jurisdiction as a Small Cause Court Judge. The contention on behalf of the petitioner finds some support from the decision of a Bench of this Court in Indra Chandra v. Srish Chandra 21 Ind. Cas. 120 : 40 C. 537. But the present case is distinguishable from that case. The suit in that case was one which was filed in the Small Cause Court and could only be tried in that Court. The present case, however, having regard to the defence raised, was one which, if it had been filed in the Small Cause Court, could have been and properly would have been, returned under Section 23 of the Provincial Small Cause Courts Act to be presented to the Court having jurisdiction to determine the question of the title raised by the defendants. Had this been done, the plaint, after being returned by the Munsif in his capacity of a Small Cause Court Judge, had to be presented to the same Munsif in his capacity as a Munsif and then it would have been heard by him in the manner in which it has been heard. In the absence of any indication to the contrary, I cannot help thinking that that is what the Munsif intended to do. Taking this view, I must hold that though there was some irregularity in the form of the proceedings, there was none in substance affecting jurisdiction and consequently an appeal lay to the District Judge.

2. It is further contended that the Subordinate Judge who heard the appeal acted without jurisdiction in remanding the suit for re hearing under Order XLI, Rule 23, Code of Civil Procedure, and that the proper order would have been a remand under Rule 25 of that Order. That is what he should have done. But, having regard to the decision of this Court as to the inherent power of the Court to make a remand, I cannot hold that he has acted without jurisdiction in making this order so as to justify my interference in revision. The result is that the Sale is discharged with costs, hearing fee one gold mohur.


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