Assuming that the suit was one of a nature cognizable by a Small Cause Court, the first question for our decision is whether we are bound, with reference to section 16 of the Provincial Small Cause Courts Act, IX of 1887, to set aside the decree of the Courts, original and appellate, which tried the suit as a regular suit, or whether we have a discretion to interfere or not according to the merits of the case. The former view was taken by the learned Chief Justice in Ramasamy Chettiar v. Orr (1), but apparently the decision to the contrary by the High Court of Calcutta in Suresh Chunder Maitra v. Kristo Rangini Dasi (2) was not brought to his notice. In referred case No. 2 of 1903 the present Divisional Bench followed the decision in Suresh Chunder Maitra v. Kristo Rangini Dasi and we have no doubt that decision is as consonant with law as it is with convenience.
Section 16 of the Provincial Small Cause Courts Act must be read along with section 646-B of the Civil Procedure Code. The latter section gives the High Court a discretion to pass such orders as it thinks proper in cases referred for its orders under that section and such cases include a case like the present where the small cause suit has been irregularly tried by an ordinary Civil Court. The obvious object of the section is to enable the High Court to pass such order as the justice of the case requires without being compelled to decide the case solely with reference to jurisdiction, and thus perhaps put the parties to the expense and trouble of fruitlessly litigating the same question again before the very Judge, sitting as a Small Cause Court, who had already tried the case on the ordinary civil side, and with the greater formality thereby required and with the safeguard of an appeal.
Though the present case comes before us under section 622, Civil Procedure Code, it seems but reasonable that the principle of the express provision in section 646-B should be followed in the exercise of the discretion allowed by section 622, at least in cases like the present where the petitioner made no objection to the trial in the Court of First Instates and raises the objection for the first time in this Court.
We therefore hold that we have a discretion to be exercised with reference to the merits of the case. On the merits we are unable to say that any ground for our interference has been made out.
We therefore dismiss the petition with costs.