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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • H.V Divatia, for the applicants.
  • A.G Desai, for the opponent.
Judges
  • Mr. Baker
  • Mr. Nanavati, JJ.
Acts
  • provisions of section 24, sub-section (4) of the Code of Civil Procedure
  • section 16 of the Provincial Small Causes Courts Act of 1887.
  • section 24, sub-section (4), of the Code of Civil Procedure
  • SECTION 4 CIVIL PROCEDURE CODE
  • section 16 of the Provincial Small Causes Courts Act
  • SECTION 24 BOMBAY CIVIL COURTS ACT 1869
  • provisions of the Small Cause Courts Act of 1887,
  • section 24(1)(a) and (b), Civil Procedure Code,
  • provisions of sub-section (4) of section
  • Provincial Small Causes Courts Act.
  • SECTION 24 CIVIL PROCEDURE CODE
  • sub-section (4) of section 24
  • section 24, sub-section (4).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • H.V Divatia, for the applicants.
  • A.G Desai, for the opponent.
Judges
  • Mr. Baker
  • Mr. Nanavati, JJ.
Acts
  • provisions of section 24, sub-section (4) of the Code of Civil Procedure
  • section 16 of the Provincial Small Causes Courts Act of 1887.
  • section 24, sub-section (4), of the Code of Civil Procedure
  • SECTION 4 CIVIL PROCEDURE CODE
  • section 16 of the Provincial Small Causes Courts Act
  • SECTION 24 BOMBAY CIVIL COURTS ACT 1869
  • provisions of the Small Cause Courts Act of 1887,
  • section 24(1)(a) and (b), Civil Procedure Code,
  • provisions of sub-section (4) of section
  • Provincial Small Causes Courts Act.
  • SECTION 24 CIVIL PROCEDURE CODE
  • sub-section (4) of section 24
  • section 24, sub-section (4).
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (Baker, J. and Nanavati, J.)

Factual and Procedural Background

This is an application to transfer a suit from the Small Cause Court, Ahmedabad, to the Second Class Subordinate Judge's Court. The ground for transfer was that there was already a suit pending between the same parties in the Subordinate Judge's Court raising the same questions. The transfer application was made under section 24 of the Civil Procedure Code. The suit in the Small Cause Court was for approximately Rs. 900, while the Small Cause Court powers of the Second Class Subordinate Judge extended only to Rs. 300. The application raised a point of law concerning whether a transfer under section 24 could be made when the receiving court's Small Cause Court powers were not sufficient for the pecuniary value of the suit.

Legal Issues Presented

  1. Whether, for the purposes of a transfer under section 24, Civil Procedure Code, the phrase “competent to try” refers to the pecuniary jurisdiction of the court (i.e., whether the receiving court must have Small Cause Court powers sufficient to cover the pecuniary value of the suit).
  2. Whether sub-section (4) of section 24, which provides that a case transferred from a Court of Small Causes shall be tried as a Small Cause suit by the court to which it is transferred, permits transfer to a regular subordinate court that is not invested with equivalent Small Cause Court powers for the value of the suit.
  3. Whether section 24(4) of the Civil Procedure Code operates to remove the bar contained in section 16 of the Provincial Small Causes Courts Act (i.e., whether transfer under section 24 can authorize a regular court to try a “Small Cause suit” notwithstanding section 16).

Arguments of the Parties

Opponent's Arguments (as recorded)

  • The transfer must be to a court "competent to try" the suit and that expression includes the court's Small Cause Court pecuniary limits; since the Second Class Subordinate Judge's Small Cause Court powers extended only to Rs. 300 and the suit was for about Rs. 900, the transfer was incompetent.
  • Because the Local Government alone can confer Small Cause Court jurisdiction under the Provincial Small Causes Courts Act, a District Court could not, by a transfer under section 24, give a court Small Cause jurisdiction beyond that conferred by Local Government.
  • The view above is supported by a single judge decision of the Madras High Court in Murugesa Mudaliar v. Venkata Kesavalu Chetty.

Applicant's / Court's Supporting Arguments (as recorded)

  • The phrase “competent to try” should be understood primarily in terms of pecuniary jurisdiction (i.e., the receiving court must be within its general pecuniary power to try the suit), but not to require that the receiving court be invested with Small Cause Court powers to the same pecuniary extent as the transferring Small Cause Court.
  • Sub-section (4) of section 24 provides that a suit transferred from a Court of Small Causes shall be tried as a Small Cause suit by the court to which it is transferred; this confers, for that particular suit, the characteristics of a Small Cause Court on the receiving court irrespective of the extent of its general Small Cause Court powers.
  • To adopt the Madras High Court view would produce practical inconvenience because most Subordinate Judges have limited Small Cause Court powers (commonly up to Rs. 500), which would prevent transfer of many Small Cause suits from regular Small Cause Courts (whose jurisdiction commonly extends higher).
  • The operation of section 24(4) is intended to overcome the prohibition in section 16 of the Provincial Small Causes Courts Act and to permit transfer from a Court of Small Causes to a court which is not otherwise a Court of Small Causes; that is not usurping the Local Government's function of general conferment of jurisdiction since the power applies to a specific transferred case.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Murugesa Mudaliar v. Venkata Kesavalu Chetty (Madras High Court) Held that transfer is incompetent where receiving court's Small Cause Court powers do not extend to the value of the suit; Local Government alone can confer such jurisdiction. The court in the present opinion declined to follow that view, regarding it as likely to cause inconvenience and as not required by the language of section 24(4).
Sukha v. Raghunath Das Interpreted section 24(4) to mean that where a suit is pending in a court constituted under the Small Cause Courts Act, the District Court may transfer it to another court not constituted under that Act, and that the court to which it is transferred will be deemed to be a Court of Small Causes for that particular suit. The present court relied on and cited this reasoning to support the view that section 24(4) confers Small Cause Court character on the receiving court for the particular transferred suit.
Dulal Chandra Deb v. Ram Narain Deb Contained remarks which were the subject of dissent in Sukha; the precise content is not reproduced in full in the provided opinion. The opinion notes that certain remarks in Dulal Chandra Deb were dissented from and that subsequent cases treated Dulal's remarks as not controlling; the present court did not adopt the reasoning attributed to Dulal.
Madhusudan v. Behari Referenced as a subsequent case which dissented from the remarks in Dulal Chandra Deb. Cited to show that the earlier remarks in Dulal Chandra Deb have not been universally followed; used to support the wider interpretation of section 24(4).
Badal Chandra Porhel v. Srikrishna De Nag Dealt with a suit for Rs. 870 in a Court of Small Causes having jurisdiction up to Rs. 1,000 which was transferred by consent to a Munsif at Alipore having Small Cause Court powers up to Rs. 250; held that the Munsif's decision was that of a Small Cause Court and was not appealable. Used as an example where a transferred suit was treated as a Small Cause Court decision; noted that the point in question (compulsory transfer to a court lacking requisite Small Cause powers) did not arise there because the transfer was by consent.

Court's Reasoning and Analysis

The court's analysis proceeded along the following lines, adopting a textual and purposive approach to section 24, Civil Procedure Code (particularly sub-section (4)):

  1. Definition of "competent to try": The court accepted that "competent to try" refers to the pecuniary jurisdiction of the receiving court (i.e., the court must have the general pecuniary power to try the suit), but this does not mean that the receiving court must be invested with Small Cause Court powers to the same pecuniary extent as the transferring Small Cause Court.
  2. Territorial jurisdiction was not considered an issue: The court observed that the High Court has power under section 24 to transfer suits between districts, so territorial competence is not the difficulty.
  3. Construction of sub-section (4) of section 24: The court noted that almost all High Courts treat the expression "Court of Small Causes" in s.24(4) as including a regular Subordinate Judge's Court that is invested with Small Cause Court jurisdiction, but the real question was whether a court without equivalent Small Cause Court powers could be treated as a Small Cause Court for a transferred suit.
  4. Reliance on precedent and legislative intent: The court examined prior decisions. It relied on Sukha v. Raghunath Das which explicitly stated that s.24(4) allows a District Court to transfer a Small Cause suit to a court that is not a Court of Small Causes and that the receiving court will be deemed a Court of Small Causes for that suit. The court regarded this as consistent with the broad language of s.24(4) and with legislative intent.
  5. Rejection of the restrictive Madras view: The court found the Madras High Court's restrictive view (that transfer would be incompetent unless the receiving court's Small Cause powers matched the suit value) likely to cause practical inconvenience and to unduly limit the operation of s.24. It observed that most Subordinate Judges have limited Small Cause Court powers (commonly up to Rs. 500), and following the Madras approach would prevent transfers of many Small Cause suits.
  6. Local Government's role: The court rejected the argument that allowing such transfers would usurp the Local Government's role in conferring general Small Cause jurisdiction. The court explained that it was not conferring general jurisdiction upon the receiving court but only treating the receiving court, for the single transferred case, as having the incidents of a Small Cause Court by virtue of s.24(4).
  7. Resulting principle: The court concluded that s.24(4) confers, for the purpose of the particular transferred suit, the character of a Small Cause Court on the court to which the case is transferred. The only relevant limitation is that the suit must be within the pecuniary limits of the receiving court's general jurisdiction to try or dispose of the suit.
  8. Merits and convenience: On the facts, the court observed that the parties occupied reciprocal positions in the two suits (plaintiff in one being defendant in the other) and that it would be more convenient and less likely to produce conflicting findings if both suits were tried by the same Judge. The question whether the suits arise from the same transaction was a matter of evidence for the trial Judge.
  9. Nanavati, J.'s concurrence: Nanavati, J. agreed and reiterated that s.24(4) is intended to permit transfer from a Court of Small Causes to one which is not such a court and thereby to remove the bar in section 16 of the Provincial Small Causes Courts Act for the transferred suit; he relied on the same reasoning from Sukha and emphasized legislative purpose and practical effect.

Holding and Implications

Holding: The court made the rule absolute and ordered the transfer of the Small Cause suit to the Second Class Subordinate Judge's Court. The court held that under sub-section (4) of section 24, Civil Procedure Code, a suit transferred from a Court of Small Causes shall be tried as a Small Cause suit by the court to which it is transferred, and that this provision permits transfer even when the receiving court's ordinary Small Cause Court powers do not extend to the pecuniary value of the suit, provided the suit is within the receiving court's general pecuniary jurisdiction.

Immediate consequences for the parties:

  • The suit pending in the Small Cause Court, Ahmedabad, was ordered to be transferred to the Second Class Subordinate Judge's Court.
  • The court directed that the transferred suit be tried as a Small Cause suit by the receiving court under section 24(4).
  • The rule was made absolute with costs in favor of the applicants.

Broader implications (as articulated in the opinion):

  • The decision interprets section 24(4) to enable District Courts to transfer Small Cause suits to regular subordinate courts and to treat those courts as Courts of Small Causes for the purposes of the transferred suit, thereby avoiding rigid dependence on the receiving court's ordinary Small Cause Court monetary limits.
  • The interpretation rejects the narrower view that such transfers would improperly usurp the Local Government's power to confer general Small Cause jurisdiction, on the basis that section 24(4) affects only the particular transferred suit and not the general jurisdictional scheme.

If any broader precedent effect is to be described, the opinion itself articulates a rule of construction for section 24(4) and expressly declines to follow the contrary Madras authority; beyond those points the opinion does not purport to lay down additional wider principles.

Show full summary ...

    Parshottamdas Chunilal Shah v. Bhagubai Nathubhai

    Baker, J.:—

    This is an application for transfer of a suit from the Small Cause Court, Ahmedabad, to the Second Class Subordinate Judge's Court on the ground that there is already a suit between the same parties pending in the Subordinate Judge's Court in which the same questions are involved. The application, which is under section 24, Civil Procedure Code, raises a point of law, on which there is no ruling of this Court, though there is one of the Madras High Court. The point is that the suit in the Small Cause Court is for Rs. 900 odd, whereas the Small Cause Court powers of the Second Class Subordinate Judge extend only to Rs. 300, and hence it is contended that the transfer must be to a Court competent to try the suit, and as under clause (4), section 24, the suit must be tried as a Small Cause suit, and the Subordinate Judge's Small Cause Court powers do not extend to the value of the suit, the transfer is incompetent, as the Local Government alone has power to confer jurisdiction under the Provincial Small Causes Courts Act. This is the view accepted by a single Judge of the Madras High Court in Murugesa Mudaliar v. Venkata Kesavalu Chetty.

    The expression “competent to try” it must refer to the pecuniary jurisdiction of the Court; e.g it would not be within the powers of the High Court to transfer a suit over Rs. 5,000 to a Second Class Subordinate Judge whose powers extend only to suits of the value of Rs. 5,000 or less. I do not think any question of territorial jurisdiction can arise, as it is within the power or the High Court acting under section 24 to transfer a suit from one district to another. The difficulty arises from sub-section (4) of the section, which if the view adopted by the Madras High Court is followed, does not seem to have much point. It is now held by all High Courts, though at one time this Court took a different view, that the words “Court of Small Causes” in sub-section (4) of section 24 makes no distinction between a regular Court of Small Causes and a Court of the Subordinate Judge invested with Small Cause Court jurisdiction, as nearly all Subordinate Judges are. There is no direct ruling on the point beyond the Madras High Court ruling already referred to, though similar cases have frequently arisen, but no objection seems to have been taken on this score. In Sukha v. Raghunath Das a suit of Small Cause Court nature instituted in the Court of a Subordinate Judge invested with the powers of a Judge of Small Cause Court was transferred to the Court of a Munsif not possessing the powers of a Small Cause Court, and was tried by him and a decree passed therein. It was held that no appeal lay from the Munsif's decree, and it is remarked (p. 219):—

    “… the provisions of section 24, sub-section (4) of the Code of Civil Procedure do mean something. On any interpretation, they do mean at least this, that if a suit is pending in a court constituted under the provisions of the Small Cause Courts Act of 1887, the District Court has power to transfer that suit to another court which is neither a court constituted under that Act, nor a court invested with the jurisdiction of a Court of Small Causes, and that the court to which the case is transferred will then be deemed, by virtue of the order of transfer, to be a Court of Small Causes for the purpose of that particular suit.”

    Those remarks are by way of dissent from certain remarks in Dulal Chandra Deb v. Ram Narain Deb, which has however been subsequently dissented from in Madhusudan v. Behari; see also Badal Chandra Porhel v. Srikrishna De Nag, where a suit for Rs. 870 instituted in the Court of Small Causes at Sealdah having jurisdiction up to Rs. 1,000 was transferred by consent of parties to the Munsif at Alipore having Small Cause Court powers up to Rs. 250, to be tried along with a suit for rent between the same parties pending before him. It was held that the decision of the Munsif was that of a Small Cause Court and was not appealable. The point before us now did not however arise in that suit, as although the Munsif who had pecuniary jurisdiction to try the suit was not vested with Small Cause Court powers up to the requisite amount, the parties had the transfer made by consent. With respect, it seems to me that the view taken by the Madras High Court is likely to lead to inconvenience, because the Small Cause Court powers conferred on regular Subordinate Judges' Courts are in most cases restricted to a maximum of Rs. 500, and if in cases of a Small Cause Court nature the competence of the Court to which it is proposed to transfer the case is to depend on the extent to which it has been invested with Small Cause Court powers, it would very frequently be impossible to transfer a case from the regular Small Cause Court, whose jurisdiction extends to Rs. 1,000 or more, to any other Subordinate Judge's Court, which is exactly what is contended here. I do not think any Subordinate Judge in this Presidency has Small Cause Court powers over Rs. 500. Consequently, if the argument of the opponent is correct, no Small Cause suit over Rs. 500 could be transferred to a regular Court. This obviously very materially limits the operation of section 24, and in the absence of clear words in the section. I should not be disposed to take that view. I am not impressed by the argument that to hold otherwise would be to usurp the functions of the Local Government. This is not a case of conferring jurisdiction to try all or any cases of a Small Cause Court nature, but one case only, a power which seems to me to follow from the provisions of sub-section (4) of section 24. That sub-section is widely expressed, and lays down that any case transferred from a Court of Small Causes shall be tried as a Small Cause suit by the Court to which it is transferred, and makes no reference to the Court to which the case is so transferred being invested with Small Cause powers up to any particular extent or indeed with Small Cause Court powers at all, and it is exactly that point which the sub-section seems designed to meet. If it had been intended by the Legislature to make any such limitation, it could certainly have said so. The terms of the section appear rather to be intended to confer the powers of a Small Cause Court upon the trying Court for that particular case irrespective of the powers with which the Court is invested. In the circumstances, with respect, I am not prepared to follow the view of the Madras High Court, and I am of opinion that sub-section (4) of section 24 gives the power to transfer a suit from a Small Cause Court to a regular Court irrespective of the Small Cause powers of the Court to which the suit is transferred. I may add that any other interpretation would make sub-section (4) unmeaning, as if the suit were within the limit of the Small Cause Court powers of the Court to which it is transferred, that Court would presumably be obliged under the ordinary law to try it as a Small Cause suit irrespective of section 24, sub-section (4). The present case is only likely to arise where there is a regular Small Cause Court in existence. I am therefore of opinion that this Court has power to make the transfer, and that provided the suit to be transferred is within the limits of the pecuniary jurisdiction of the Court to which the transfer is to be made, the extent of its Small Cause powers does not matter, as jurisdiction to try the case as a small cause is conferred by sub-section (4) of section 24.

    On the merits there is little to be said. It appears that the plaintiff in the Small Cause suit is the defendant in the regular suit, and one of the defendants in the Small Cause suit is the plaintiff in the regular suit. Whether the two suits relate to the same transaction is a matter of evidence which would more appropriately be considered by the trying Judge, but I am of opinion that the two suits would be more conveniently tried by the same Judge, who would be the best person to decide how far the issues are common to the two suits. Apart from this, if the two suits are tried by different Courts, and the contention of the applicants is correct, there is a possibility of contrary findings on the same issues between the same parties which is always a source of embarrassment. I am therefore of opinion that the suit should be transferred, and the rule made absolute with costs.

    Nanavati, J.:—I agree. Section 24, sub-section (4), of the Civil Procedure Code is clearly intended to enable the transfer of a suit from a Court of Small Causes to one which is not such a Court. It follows therefore that it is intended to remove the bar laid down in section 16 of the Provincial Small Causes Courts Act of 1887. That section enacts that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits etc. It does not deprive the regular Courts of their jurisdiction but merely directs them not to try a “Small Cause suit”. (I use this short phrase to indicate a suit cognizable by a Court of Small Causes). They still remain triable by the regular Courts if the prohibition in section 16 can be got over. The argument that under section 24(1)(a) and (b), Civil Procedure Code, the Court to which a suit is transferred must be competent to try or dispose of the same, and that by reason of section 16 of the Provincial Small Causes Courts Act regular Courts are not competent to try “Small Cause suits” is not in my opinion correct. The jurisdiction of a Subordinate Judge is defined in section 24 of the Bombay Civil Courts Act of 1869. If a suit is within the power of the Court as so defined, then the Court is competent to try the suit. section 16 of the Provincial Small Causes Courts Act does not take away this competency. It only directs that certain suits shall not be tried by such Courts and this bar is removed under section 24, sub-section (4), of the Code of Civil Procedure when an order of transfer is made under that section. If section 16 of the Provincial Small Causes Courts Act had the effect of making Courts other than those governed by that Act incompetent to try “Small Cause suits”, then section 24, sub-section (4), Civil Procedure Code, need not have been enacted at all since the situation contemplated therein could not arise. The argument that weighed with the learned Judge in Muragesa Mudaliar v. Venkata Kesavalu Chetty was this that although it was the local Government alone that could invest particular Courts of Small Causes with jurisdiction up to Rs. 1,000, a District Court by exercising the power of transfer could enable a Court whose “Small Cause” jurisdiction was limited to “Small Cause suits” not exceeding Rs. 300 in value, with the power of deciding “Small Cause suits” of the value of Rs. 1,000. The answer to that argument is well expressed in Sukha v. Ragkunath Das as follows (p. 219):—

    “It is not unreasonable to suppose that the Legislature felt considerable confidence in the district courts, in consideration more particularly of the intimate acquaintance which such courts are likely to possess with the personnel and the working of all courts subordinate to them; so that it was not deemed improper to invest district courts with powers of transfer in respect of suits of a Small Cause Court nature and to permit that power to be exercised for the transfer of a case from a Court of Small Causes to a court which is neither a Court of Small Causes constituted under Act IX of 1887, nor a court invested with the jurisdiction of a Court of Small Causes. It remains a matter of discretion with the district court whether or not to pass an order of transfer in any suit; and the apparent intention of the Legislature was that, if a Small Cause Court suit is so transferred, it should not change its nature by reason of the transfer, but should continue to be tried as a Small Cause Court suit and subject to all the legal incidents of such a suit.”

    With respect, I entirely agree with that reasoning. Any other interpretation would make section 24, sub-section (4), Civil Procedure Code, meaningless and give rise to a great deal of inconvenience.

    Rule made absolute.
    J.G.R
    sub-section (4) of section 24
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    Comments

    Parshottamdas Chunilal Shah v. Bhagubai Nathubhai
    (Nov 25, 1931)