Badal Chandra Porhel v. Srikrishna De Nag

Mukerji and Mallik, JJ.:— The suit was for recovery of Rs. 870 on account of price of milk alleged to have been supplied to the defendant. It was instituted in the Court of Small Causes at Sealdah, which has pecuniary jurisdiction up to the limit of Rs. 1,000. A suit for rent between the parties being pending at the time in the Third Court of the Munsif at Alipore, the District Judge of 24-Parganas, at the instance of the defendant and on the consent of the plaintiff, transferred the suit to that court to be tried along with the said rent suit. The Munsif was invested with Small Cause Court powers up to Rs. 250. He registered the suit as an ordinary money suit and tried it as such and decreed it for Rs. 432 with interest and proportionate costs. The defendant appealed from the decision and obtained a modification of the decree which has been passed by the trial court, the amount of the decree being reduced to Rs. 127-1. The plaintiff has then preferred this appeal.

The contention that has been urged on behalf of the appellant is that, under section 24, sub-section (4), the Munsif should be deemed to have tried the suit as a Court of Small Causes, and accordingly, no appeal lay from this decision. The question, therefore, is one of construction of that sub-section.

The question is, by no means, free from difficulty and the authorities bearing on it are exceedingly conflicting. It will be convenient to deal first of all with a few of the earlier decisions of the Allahabad and the Bombay High Courts which introduced this conflict.

The earliest decision of the Allahabad High Court is the case of Kauleshar Rai v. Dost Muhammad Khan. In that case a suit instituted in the Court of a Subordinate Judge in the exercise of his Small Cause Courts Jurisdiction was, on the retirement of that officer, ordered by the District Judge to be dealt with by his successor, who was not invested with Small Cause Court Jurisdiction, and it was held that the argument that the case was not transferred or withdrawn, but only the court had gone out of existence, and, therefore, section 25 of the Code then in force (section 24 of the present Code) was inapplicable, had no force, and it was also held that no appeal lay from the decision of the said successor, as the decision was by reason of section 25(4) of the Code of Civil Procedure, that of a Court of Small Causes. In the case of Mangal Sen v. Rup Chand, a suit valued at Rs. 69 was filed as a Small Cause Court case in the Court of a Subordinate Judge who had Small Cause Court powers. The Subordinate Judge took leave, and his successor not having. Small Cause Court powers, the District Judge transferred the suit to a Munsif who had Small Cause Court powers up to Rs. 50 to be tried as a Munsif's Court case. The Munsif did so; and it was held, without expressing any opinion as to whether the view of the applicability of section 25 of the Code of Civil Procedure taken in Kauleshar Rai v. Dost Muhammad Khan was correct or not, that under section 35 of the Provincial Small Cause Courts Act (IX of 1887) the proceeding before the Munsif should be regarded as a proceeding in a Small Cause Court suit.

In the earlier decisions of the Bombay High Court, a different view was taken. It was held by that Court that the courts of Subordinate. Judges invested with jurisdiction of a Small Cause Court under section 28 of Act XIV of 1869 do not thereby become Courts of Small Causes constituted under Act XI of 1865, but they merely exercise a similar jurisdiction: Bhagvan Dayalji v. Balu. This decision was followed in the case of Ramchandra v. Ganesh, in which the facts were these: A suit was originally filed in the Court of a Subordinate Judge invested with Small Cause Courts powers and it was afterwards transferred by the District Judge under section 25 of the Civil Procedure Code of 1882 to the Court of the Assistant Judge who had no such powers. That Judge tried the suit and from his decision an appeal was preferred to the District Judge, who reversed the Assistant Judge's decision. The High Court was invited to set aside the decision of the District Judge on the ground that the suit was cognizable by a Court of Small Causes and it was filed in the court of the Subordinate Judge who was invested with Small Cause, Court powers, and that’ although it was transferred to the court of the Assistant Judge, such transfer did not alter its character and the court to which it was so transferred should be regarded as a Court of Small Causes and from the decree of such a court no appeal lay to the District Judge. This contention was overruled, the expression “Courts of Small Causes in section 25 of the Code of 1882 being construed to mean courts properly and strictly so called and not to include courts only invested with the jurisdiction of Courts of Small Causes.

To summarize the position disclosed by these earlier cases of the Allahabad and Bombay High Courts, the following propositions may be noted:—

1st. A case of succession is governed by section 25 of the Code [Kauleshar Rai v. Dost Muhammad Khan], but on this question no opinion was expressed in Mangal Sen v. Rup Chand.

2nd. The expression “Court of Small Causes” means not merely courts constituted as such by the Provincial Small Cause Courts Act, but also courts presided over by officers invested with Small Cause Courts power [Mangal Sen v. Rup Chand]. Contra, that the expression means only the former class of courts [Bhagvan Dayalji v. Balu, Ram-chandra v. Ganesh].

3rd. In a suit transferred or withdrawn under section 24 of the Code, finality attaches to the decision of the trying Court [Kauleshar Rai v. Dost Muhammad Khan].

With the first of these propositions or its negative we are not concerned in this appeal, and I do not propose to discuss it here beyond saying that, in the case of Dulal Chandra Deb v. Ram Narain Deb, the cases of Kauleshar Rai v. Dost Muhammad Khan and Mangal Sen v. Rupchand were dissented from, and it was held that when a Munsif vested with the powers of a Court of Small Causes is transferred and is succeeded in office by a Munsif not vested with such powers, and the Court of Small Causes is in consequence abolished, the successor has jurisdiction under section 35 of the Provincial Small Cause Courts Act and section 17 of the Civil Courts Act (XII of 1887) to try in his Ordinary Civil Jurisdiction all suits pending on the files, whether they be suits falling within the Ordinary Civil Jurisdiction of his predecessor or within his jurisdiction as the Court of Small Causes, and that no order of transfer under section 25 of the Civil Procedure Code is necessary to enable the successor to try the suits. In the same case, although it was not necessary for the decision, because the case, in the opinion of the learned-judges, was governed by section 35 of the Provincial Small Cause Courts Act and not by section 25 of the Code, the learned-judges observed, as regards the other two propositions enunciated above, that they were inclined to agree with the view taken in Ram Chandra v. Ganesh that when an order is made under section 25 of the Civil Procedure Code, the court which eventually tries the suit tries it as a Court of Small Causes, and that the expression “Court of Small Causes “in section 25, clause (4) of the Code means a Court of Small Causes constituted under the Provincial Small Cause Courts Act 1887 and does not include a court vested with the powers of a Court of Small Causes, and that such a court can try such suit in its Ordinary Civil Jurisdiction with the result that the decision therein would be open to appeal. The reasons which weighed with the learned-judges in arriving at the view that they took were that a contrary view would be against the general practice followed in this province, that an inexperienced or junior officer may have to try the suit under a summary procedure with no right of appeal being allowed from his decision and that a simple order of transfer passed under section 25 would have the effect of vesting the officer with a jurisdiction which is entirely within the competency of the Local Government to confer by an order duly notified in the Gazette under section 25 of the Bengal, North-Western Provinces and Assam Civil Courts Act (XII of 1887). To these reasons may be added the considerations that arise upon the words used in section 7 of the Code of Civil Procedure (Act V of 1908), and sections 32 and 35 of the Provincial Small Cause Courts Act (IX of 1887) and which were relied upon by the learned-judges of the Bombay High Court in the case of Ramchandra v. Ganesh and which indicate an intention on the part of the legislature to make a distinction between the two classes of courts [See also Balkrishna v. Lakshman and Krishna Velji Marwadi v. Bhau Mansaram]. These reasons have been refuted as unsound in a very large number of decisions of the different High Courts. It has been said that the apprehension that disastrous consequences will follow is idle as the sub-section does not necessarily mean that the case will be transferred to a court which is not a Small Cause Court constituted under the Act nor a court invested with the jurisdiction of a Court of Small Causes, that although a comparison of the different sections of the Civil Procedure Code and of the Provincial Small Cause Courts Act shows that the two courts are of two different classes, yet the generic name “Court of Small Causes” may not unreasonably be said to include both, and that the difficulty as to the right of appeal will stiff remain even if the limited meaning be given to that expression. On these and other grounds which will be found discussed in these decisions it has been held in those cases that the apparent intention of the legislature is that if a Small Cause Court suit is transferred it should not change its nature by reason of such transfer, but should continue to be tried Small Cause Court suit and subject to all the legal incidents of such a suit. It is now settled in Allahabad, Patna, Madras and Bombay that the expression “Court of Small Causes” in section 24, sub-section (4), includes a court vested with the powers of a Court of Small Causes and that the procedure for the trial of a suit transferred under that sub-section is governed by the provisions of the Provincial Small Cause Courts Act and no appeal lies from the decision [Chhotey Lal v. Lakhmi Chand Magan Lal, Sukha v. Ragunath Das, Chaturi Singh v. Musammat Rania, Megi Mai v. Hira Lal, Bhagawan Das v. Keshwar Lal, Sankararama Iyer v. Padmanabha Iyer, Narayan Sitaram Mulay v. Bhagu]. The Calcutta High Court in the case of Madhusudan Gope v. Behari Lal Gope dissented from the view expressed in Dulal Chandra Deb v. Ram Narain Deb as regards the limited meaning that the latter decision was inclined to attribute to the expression “Court of Small Causes “as used in section 24, sub-section (4) of the Civil Procedure Code and, following the consensus of authorities of the other High Courts at the present moment, held that the expression includes both classes of courts. The learned-judges said, however, “What procedure the Munsif should have adopted and what finality attaches to his decision, it is not necessary for the purposes of this Rule to determine.” This reservation, however, is immaterial because the provisions of the Provincial Small Cause Courts Act, sections 27 and 32, make the decree or order passed by such a court final. Besides, the value of the observations made in the case of Dulal Chandra Deb v. Ram Narain Deb has also been considerably diminished by the decision in the case of Akshay Kumar Shaha v. Hira Ram Dosad, in which it has been held that a “Court of Small Causes” includes a court vested with the powers of a Court of Small Causes.

Having given the question all the consideration that it deserves, we have come to the conclusion that the observations of the learned-judges in the case of Dulal Chandra Deb v. Ram Naram Deb are not sound, and that the view that has been taken in the later decision of this Court referred to above and which also is the view current in the other High Courts is correct. It may be stated here that the respondent gains little, even if the limited meaning which Dulal Chandra Deb v. Ram Narain Deb stands for is given to sub-section (4) of section 24 of the Civil Procedure Code, because here the transfer was from a Provincial Small Cause Court. The real solution of the difficulty lies in a proper exercise of the powers of transfer given by section 24 of the Code, The section speaks of a transfer to a court “competent to try or dispose of” the suit. In the present case the defendant moved for transfer, and, on the plaintiff consenting, the case was transferred to the Third Court of the Munsif of Alipore, who had pecuniary jurisdiction to try the suit, but was not vested with Small Cause Court powers up to the requisite amount. Far from taking any objection as regards the competency of the tribunal to which the suit was to be transferred, the parties by consent got the suit transferred to this particular court. To a case of this character it may well be said that the Munsif assumed jurisdiction under an agreement between the parties. The law in cases of this kind has, in our opinion, been correctly stated in these words, in the case of Sankaranarayana Pillai v. Ramaswamiah Pillai: “If parties agree to a court proceeding without jurisdiction extra cur sum curiae, i.e, beyond the ordinary powers of a court, the parties cannot thereafter appeal from the decision of the court. But where the court has jurisdiction over a cause, mere agreement between the parties that the court may decide the cause disregarding rules of procedure and evidence without giving up a right of appeal expressly or by necessary implication, does not deprive the parties of their right of appeal.” Here the consent to the transfer of this court which evidently was readily given by both parties on the ground of mutual convenience as another suit between them was pending in that court carried with it the necessary consequences which followed under the law itself, namely, section 24, sub-section (4) of the Code of Civil Procedure, and neither party can be heard to complain that a right of appeal was taken away. Besides the provision of that sub-section is more or less a statutory recognition of the general rule that the incidents of a trial are to be governed by the law as applicable to the conditions which existed at the institution of the suit unless those incidents have been, expressly varied by the legislature.

We are, accordingly, of opinion that no appeal lay from the decision of the trial court. We, therefore, allow the appeal and, reversing the decree passed by the Subordinate Judge, restore that of the Munsif but we do not propose to make any order for costs either in this Court or in the court of appeal below.

R.K.C

Appeal allowed.