1. The petitioner brought a suit for damages for the loss of a cow which had been grazed under a contract by the opposite party. The claim was for Rs. 100. The suit was filed before a Munsif with powers of a Small Cause Court Judge. The suit was tried in the regular form and the petitioner was successful, but he lost on appeal before the Sub-ordinate Judge.
2. The point now taken is that as the Munsif had the powers of a Small Cause Court Judge and as this was a suit of a small cause nature, it must be taken to have been tried as a small cause because the jurisdiction is exclusive under Section 16 of the Small Cause Courts Act.
3. This argument is well-founded and is supported by the decision in Indra Chandra Mukherjee v. Srish Chandra Banerjee(1), which relied upon a decision in Bombay which itself is based upon Petamber Vajirshet v. Dhondu Navlapa(2). It is not disputed by the opposite party that the Munsif had these powers or that the suit was of the nature of a small cause nor could it be disputed, but it is said that it would be unfair to allow this application when the petitioner himself instituted the suit as a money suit and did not take this point when the appeal was lodged. This is a matter affecting costs, but where there is a question of jurisdiction, consent or silence cannot confer jurisdiction. The law is perfectly clear that there was no appeal in this case.
4. The decision in appeal must, therefore, be set aside and the decree of the Munsif restored. But the petitioner will pay the costs of the appeal. There will be no costs of this application.
5. Application allowed.