Babu Ganga Prasad v. Nandu Ram

Roe, J.:— In this matter we are asked to interfere either under sec. 25 of the Small Cause Courts Act or sec. 107 of the Government of India Act with an order made by a Small Cause Court Judge under sec. 23(1) of the Provincial Small Cause Courts Act. The preliminary objection is taken that an order made under sec. 23(1) is not covered by sec. 25. Two cases have been quoted, one on either side. In Subal Ram Dutt v. Jagadananda the judgment was one to which my learned brother was a party. I agree with the conclusions arrived at therein with regard to the meaning of the word “decided,” even though in Umesh Chandra v. Rakhal Chandra its correctness was questioned. I would lay emphasis on the distinction between disposing of a case and deciding a case, but would concede that the meaning of the word case, as commentaries on sec; 115 of the Civil Procedure Code indicate, is not without difficulty. A case is something less definite than a suit, and it may be argued that a proceeding in which a Small Cause Court Judge discusses and decides the question whether a plaint should be returned may be regarded as constituting in itself a case. It is not in the matter before us necessary to go deeply into this question, for whether we regard ourselves as taking action under sec. 25 of the Small-Cause Courts Act or sec. 115 of the Civil Procedure Code, or sec. 107 of the Government of India Act, the point in issue seems to me to be the same point.

Under sec. 115 of the Civil Procedure Code we could only interfere if the question were one of judisdiction. From the earliest days of the High Court at Fort William when Mr. Justice Norman introduced superintendence to the notice of his colleagues as a term having “a legal force and significance well known to the Legislature” the Court's powers under the Charter Act have been exercised, with few exceptions, only in cases where jurisdiction has been exceeded or the Judge has ignorantly or perversely refused to exercise or made only a colourable pretence at exercising a jurisdiction vested in him by law. As I read the judgments in Chandi Ray v. Kripal Ray and in Amjad Ali v. Ali Hussain Johar even this limited power should be exercised only when irreparable injury would be caused to one of the litigants if matters were not set right. In the case before us no irreparable injury is being caused. The plaint has been returned. The Plaintiff has an ample remedy in the Courts of ordinary jurisdiction.

Nor would I interfere under sec. 25 of the Small Cause Courts. Act, had I power to do so Sec. 23(1) is designed to meet cases in which a Small Cause Court Judge is satisfied that the question of title raised is so intricate that it should not be decided summarily, but in a Court in which the evidence is recorded in full and the decision open to appeal. The matter is one of discretion, and where discretion is vested in a Court, it is not open to our interference unless it has been exercised ignorantly or perversely. Whether we look at the matter from the point of view of superintendence or revision the question in issue is whether the Judge has acted ignorantly or perversely.

In Umesh Chandra v. Rakhal Chandra the Divisional Bench declined to believe that there could be any intricate question of title in a dispute over the carcase of a goat.

In the case before us the suit is for house rent. If title in the house was in good faith disputed, the Judge would have been most unwise to adjudicate upon it summarily. The Judge heard the Pleaders and decided that the title of the Plaintiff had been challenged in good faith. I see no reason for believing that his decision was either ignorant or perverse.

The application should be rejected with costs—hearing fee, two gold mohurs.

A.K.R

Application refused.