1. This is an application on behalf of a firm called Ramchandra Sagoremull for an order under Section 115 of (be Code of Civil Procedure, for the setting aside of certain orders made by the Calcutta Court of Small Causes. The application has arisen under the following circumstances:
On the 17th April 1919 the applicant firm instituted a suit in the Small Cause Court against the firm of Amarohand Muralidhar for the recovery of a sum of Rs. 400 as damages for breach of a certain contrast, by which the latter firm had agreed to sell to the applicant firm three bales of Mullmull on certain terms and conditions to which it is unnecessary to refer. That suit was numbered 8785 of 1919. On or about the 30th April 1919, the firm of Amarchand Muralidhar filed a cross suit against the applicant firm for the recovery of a sum of Rs. 157 8-0 as being the damages alleged to have been sustained by them on account of the applicant firm not having taken delivery of the goods referred to above under the said contract. The last mentioned suit was numbered as 9532 of 1919 the said two suits came on for hearing before the learned Second Judge of the Small Cause Court on the 24th November 1919. The applicant firm's suit was dismissed and a decree for a sum of Rs. 5820 was passed in the suit which had been instituted by Amarchand Muralidhar against the applicant firm. On the 1st December 1919, two applications were filed before Mr. Dobbin who was the Trial Judge in the Small Cause Court, by the applicant firm in the said two suits, asking that the order of dismissal in the first suit and the decree in the second suit should be set aside, and praying for new trials in the said two suits. These applications were refused by Mr. Dobbin on the 1st December 1919. It is alleged by the applicant firm that the said applications were presented to the Trial Judge, so that he might, in accordance with what is stated to be the usual practice in the Small Cause Court, order the issue of notices on the firm of Amarchand Muralidhar returnable before the Full Bench of the Small Cause Court in order the they might show cause why the order of dismissal in the first suit and the decree in the second suit should not be set aside or such other order trade as the circumstances of the two cases required. It is urged that Mr. Dobbin, in summarily dismissing the two applications referred to above acted without jurisdiction and with material irregularity. It is further urged that any power conferred on a Judge of the Small Cause Court to refuse to issue notices on applications, like the one referred to above, is ultra vires and bad.
2. In support of the applicant firm's contention, Mr. Chaudhuri has taken me through Rules 92 to 95 of the Rules of Practice of the Small Cause Court as they stood before the amendment to the rules published in the Calcutta Gazette of the 16th July 1919, on page 1128 thereof, came into effect. He argues that the addition to Rule 92 of the Rules of Practice of the Small Cause Court, under the Notification of the 9th July 1919, published as above, if it authorises a Single Judge to dispose of applications like these, is ultra vires inasmuch as the applicant for a new trial has been deprived of what is described as a right, hitherto enjoyed, of having applications for new trials considered by a Bench of the Judges of the Small Cause Court, usually composed of the Trying Judge and the Chief Judge, and in support of his contention he has referred me to the case reported as Madurai Pillai v. Muthu Chetty 22 Ind. Cas. 775 : 38 M. 823 : 15 M.L.T. 166 : (1914) M.W.N. 216 : 26 M.L.J. 227 : 1 L.W. 172.
3. Now, the power given to the High Court to make rules under the Presidency Small Cause Courts Act is to be found in Section 9 of the Act, and it is laid down there that the High Court may, from time to time, by rules having the force of law, prescribe the procedure to be followed and the practice to be observed by the Small Cause Court, and that rules made thereunder may provide, amongst other matters, for the exercise by one or more of the Judges of the Small Cause Court of any of the powers conferred on the Small Cause Court by the Act, or any other enactment fir the time being in-force. The application for a new trial is made under Section 38 of the Act, and is laid down therein that the Small Cause Court may, on the application of either, party, within eight days from the rate of the decree or order in a suit, order a new real 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. There is, it will be observed, nothing in the Act itself regarding the formation of a Bench of Judges for the purpose of applications under Section 38, and it may be noticed, in passing, that the only provision in the Act about the formation of a Bench with more Judges than one is to be found in Sections 11 and 69. The Act makes no destination between a Judge, and more than one Judge, of the Small Cause Court, and what is spoken of is the Small Cause Court, whether it consists of one Judge or more than one Judge. I do not propose to go into the question as to whether the jurisdiction exercised by the Small Cause Court under Section 38 of the Act is appellate or revisional, as to which there has been a good deal of controversy. See Shio Lal Padama, In re, 5 Ind. Cas. 802 : 34 B. 316 : 12 Bom. L.R. 130 : 11 L.J. 27, Budhu Lal v. Chattu Gope 39 Ind. Cas. 465 : 44 C. 816 : 21 C.W.N. 269 : 25 C.L.J. 193 : 18 Cr.L.J. 497, Srinivasa Charlu v. Balaji Rau 21 M. 232 : 7 Ind. Dec. (N.S.) 519.
4. Now, the question arises, has the High Court made a rule for the exercise by one Judge of the Small Cause Court of the powers conferred on the Small Cause Court by Section 38 of the Act? To my mind, it has not. The addition to Rule 92 does not, in my opinion, indicate that a Bench need not henceforth be formed on the lines laid down in Rule 95 for the purpose of giving the applicant a preliminary hearing. I am strengthened in my view by the fact that Rule 95 remains unaltered. Rule 92, as it stood before the amendment, precluded a preliminary hearing for the purpose of finding out whether there were grounds for applications such as were indicated in the rule itself. The object of the addition to Rule 92 was to gat rid of this difficulty and to provide for a preliminary hearing in two classes of applications, (i) in the applications referred to in Rules 62, 64, 67 or 69, and (it) in applications under Section 33 of the Act. The addition to Rule 92 is not ultra vires; but so far as applications under Section 38 of the Act are concerned, the preliminary hearing must be before a Bench formed on the lines laid down in Rule 95, with the result that no notice would issue thereafter, except on good grounds in order that opportunities for protracting cases might be diminished.
5. In this view of the matter, the orders of the 1st December 1919, in the two suits referred to above, must be set aside and the application for new trials in the two suits mentioned above must be considered again by a Bench of the Small Cause Court formed on the lines laid down in Rule 95. No order as to costs of this application.