1. This was a rule obtained by the Plaintiff calling on the opposite party to show cause why the order of the lower Court should not be set aside on the ground that the Judge was not precluded from dealing with the suit by Section 23 of the Small Cause Courts Act.
2. It appears that the Plaintiff brought a suit in the Small Cause Court of Sylhet against Defendant No. 1, making the Defendants Nos. 2 and 3 pro forma, Defendants, for the recovery of Rs. 176 and odd annas, alleging that the Defendant No. I mortgaged certain properties to Defendant No. 2 and the latter obtaining a decree on that mortgage and selling the mortgaged property in satisfaction of the decree, the Plaintiff purchased that property for himself. The Plaintiff further alleges that he was assured, that as a matter of fact that property had not been mortgaged previously to anybody else, nor was there any incumbrance on it, which fact also appears to have been mentioned in the mortgage deed in favour of the pro forma Defendant No. 2. The Defendant No. 1, it appears, had previously mortgaged the very same property to one Narayani Dasi, who instituted a suit against the Defendant No. 1 on the strength of that mortgage and obtained a decree. When the mortgaged property was about to be sold the Plaintiff paid the sum of Rs. 90, which was the first mortgage-debt, in order to save the property from being sold, and he alleges that he paid this money for the Defendant No. 1 for the purpose of saving the property, in which he had an interest by purchase and which was in his possession, from being sold. The Defendant No. 1 alleges that the Plaintiff 's purchase was benami for one Ambica Churn Das, and that the money paid for that purchase belonged to Ambica Churn and not to the Plaintiff, and that he, the Defendant No. 1, has purchased the property from Ambica Churn Das, the real beneficiary of the sale, which stood in the name of the Plaintiff.
3. This suit was instituted in the Small Cause Court and the Judge presiding in the lower Court after hearing all the evidence in the case has come to the conclusion that the relief claimed by the Plaintiff depended upon proof of title to immoveable property. Hence, under Section 23 of the Small Cause Courts Act, he has returned the plaint to the Plaintiff to be presented to the Court having jurisdiction. As against this order the present rule was obtained.
4. Our attention has been drawn to Section 25 of Act IX of 1887 by the learned pleader on behalf of the opposite party who contends that this Court has no jurisdiction under that section. That section provides that: 'The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit.' We find that as a matter of fact the present case has not been decided at all. The plaint has been returned to be filed in the proper Court, and thus the present order is not an order passed in a case decided by a Small Cause Court. We are, therefore, of opinion that this Court has no jurisdiction under Section 25 to pass any order in the matter.
5. We may here observe that it would have been far better if the Subordinate Judge acting as a Small Cause Court Judge had disposed of the matter instead of returning the plaint under Section 23 of the Small Cause Courts Act. After having recorded the evidence of the witnesses it would have been proper and just to both parties if he had decided the case instead of consigning that responsibility to another officer, probably, no better fitted to deal with it than himself and putting the parties and their witnesses to unnecessary trouble and expense of having the case retried. We are not prepared to say, however, that he acted entirely without jurisdiction and that being so we are unable to hold that the matter is one that calls for the exercise of the exceptional powers given to us by the Charter.
6. The rule is discharged without costs.