Shamsher Mundul v. Ganendra Narain Mitter

Rampini and Pratt, JJ.:— This is a Rule calling upon the opposite party to show cause why the judgment complained of in this case should not he set aside on the ground that it dealt with a claim to filed huts, which, in accordance with the ruling in the case of Denonath Batabyal v. Adhor Chunder Sett(1), a Small Cause Court has no jurisdiction to deal with, being immoveable property.

Dr. Rash Behari Ghose, for the opposite party, contends that the Bench taking cases of the Presidency Group has no jurisdiction to deal with this matter, and that it has no power to set aside the decree of the Calcutta Court of Small Causes, which is not within the jurisdiction of this Bench. He calls attention, to Rule II of Chapter III of the Rules of this Court, Appellate Side, in column 1 of which rule the districts over which this Bench has jurisdiction are specified, and he points out that the 24-Parganas is one of those districts, but Calcutta is not. He has further called attention to the cases of Peary Mohun Ghosaul v. Hurran Chunder Gangooly(2) and E.D Sassoon v. Hurry Das Bhukut(3), which show that rules for the setting aside of decrees by the Small Cause Court are issued from the Original Side of this Court.

On the other hand, the learned pleader for the applicant relies upon the case of Kadambini Baiji v. Madan Mohan Basak(4), in which it has been held that the High Court, in the exercise of its appellate jurisdiction, has power to transfer a suit from the Court of Small Causes to any other Court having equal or superior jurisdiction.

We are of opinion that the contention of the opposite party in this Rule must be given effect to and the Rule discharged. It is clear to us from the Rule of this Court above referred to that this Bench, as a Bench having jurisdiction over the Presidency Group, has no jurisdiction over the Court of Small Causes, which is situate in the town of Calcutta, and from the two cases above cited it is evident that it is the practice for Rules of this nature to be issued not by the Presidency Bench, but by one of the Judges sitting on the Original Side. The case of Kadambini Baiji v. Madan Mohan Basak, on which the pleader for the applicant relied, seems to us not to furnish any argument in his favour, inasmuch as the Bench, which decided that case, was not dealing with a Rule issued under the revisional jurisdiction of this Court provided for by s. 622, Civil Procedure Code, but with a Rule issued on an application under s. 25 of the Code for the transfer of a case from Calcutta to a Court in the Dacca district. It was, moreover, not a Bench dealing with the Presidency Group, but was the Vacation Bench, for the decision, on which the pleader for the applicant relies, was passed on the 13th September 1898, which was during the vacation. Further, we observe that it was in the exercise of its jurisdiction under s. 15 of the Charter, read with s. 6 of Act XV of 1882, that the order was passed. We have in this case not been asked to exercise our extraordinary jurisdiction under s. 15 of the Charter.

For these reasons we hold that we have no jurisdiction to deal with this matter, and we discharge this Rule with costs.

S.C.G

Rule discharged.