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Judgment
Chaturvedi, J.—This revision against the judgment and decree passed by the Additional District ''Judge, Ujjain, in Civil Regular Appeal No. 154 of 1952 comes up for hearing under the following circum-stances.
The Applicants-Plaintiffs filed Civil Original Suit No. 155 of 1951 in the Court of the Additional City Civil Judge, First Class, Ujjain, Shri P.D. Gupta against the non-Applicant Defendant for recovery of a sum of Rs. 492/2/- on account of damages suffered by the Plaintiffs duo to the falling of the Defendant''s wall on. the Plaintiffs wall The trial Court decreed the Plaintiffs'' suit only for Rs. 50/- and dismissed the rest.
Against this decree the Plaintiffs preferred a Civil Regular Appeal in respect of the dismissed portion of their claim and the Defendants preferred cross-objection in respect of the portion of the claim decreed in favours of the Plaintiffs. This appeal came up for hearing before the learned Additional District Judge, Ujjain, who dismissed the Plaintiff''s suit in its entirety accepting the cross-objection of the Defendant.
The Plaintiffs, therefore filed the second ap-peal. This came up for hearing on 24th September 1956, when Mr. S.L. Dube, learned Counsel for the Defendant, raised a, preliminary objection that u/s 102, CPC no second appeal is competent in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the orignal suit does not exceed Rs. 500/-.
Now, "suit of the nature cognizable by the Courts of Small Causes" is nowhere defined and whether a suit is of such a nature can only be determined by a reference to Sections 15, 16, 27 and the Schedule in the Provincial Small Cause Courts Act which correspond to Sections 12, 13, 19 and the Schedule in the Madhya Bharat Small Cause Courts Act (No. 46 of 1949). A perusal of these sections led to the conclusion that it was in fact a suit of the'' nature cognizable by Courts of Small Causes, as the value of the subject-matter of the original suit did not exceed Rs. 500/-. Clearly, it was hit by the provisions embodied in Section 102, Code of Civil Procedure.
Mr. S.R. Joshi, learned Counsel for the Applicants, at first thought that a second appeal was competent; for, when a first appeal was not provided for and even then it was heard, hence he urged that the second appeal would be competent. He placed reliance on Gangadhar v. Shckharbasini AIR 1917 Cal 320(A), where it was held that where jurisdiction is usurped by a Court in passing an order against which an appeal would he if it had been passed with jurisdiction, an appeal against the order cannot be defeated on the ground that the order was made without jurisdiction.
This case is one of several cases relied upon by the Supreme Court in Janardan Reddy and Others Vs. The State of Hyderabad and Others, , a: criminal case, where in para 20 it is laid down that if a Court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, that is,'' an appeal would lie to the Court to which it would lie if its order was with jurisdiction.
Mr. Joshi''s contention was that if a first appeal, by mistake, was heard on merits, then a second appeal would be competent, He also placed reliance on Veeraraghavulu v. Venkala Nanuiuiha AIR 1914 PC 87 (C); Banka Das Vs. Srinivas Padhi, and on Lakhpat Lal Vs. Makhan Ram and Others, , where it has been held that where a District Judge entertains an appeal which does not lie to his Court, a second appeal would be competent against his decision.
No doubt, these decisions lend support to Mr. Joshi''s contention but it was pointed out to him that the principle underlying these decisions will be applicable only where there is nothing mentioned about a second appeal; but these eases would not be applicable where there is a definite prohibition against the second appeal as in Section 102 Code of Civil Procedure.
On this, Mr. S.R. Joshi learned Counsel for the Applicants, made an application for converting the appeal into an application for revision of the decree passed by the Additional District Judge, Ujjain. As the appeal was filed within 45 days of the decree, the appeal was allowed to, be converted into revision on payment of costs. It is in this way that the revision, comes for hearing before me.
The main contention in this revision by Mr. Joshi''is this that the suit ought to have been tried as a'' Small Cause Court suit and not in the regular way, and an appeal against the decree of the Small Cause Court would not be competent. Therefore, he urges that both decrees of the Additional District Judge, Ujjain, and of the Additional City Civil Judge, ''Ujjain, should be set aside and the plaint should be ordered to be presented to the proper Court. Mr. S.L.'' Dube on the other side, contends that no objection ''as to jurisdiction was raised by the parties either''-in the trial Court, so the decree of the first appellate Court cannot be interfered with.
Now, in this case, Mr. P.D. Gupta, the Additional City Civil Judge, First Class, Ujjain, was also invested with Small Cause Court''s powers upto Rs. 500/ but he tried this case as a regular suit, and nobody -objected to his jurisdiction at that time; nor any body objected to the jurisdiction of the first appellate Court.
Mr. Dube contends that now it is too late to attack the decree of the first appellate Court when no objection to jurisdiction was taken before it. He placed reliance on pages 49 to 51 in Saxena''s Commentary on the Provincial Small Cause Courts Acts. There are some cases which support Mr. Dube. The first is Randal v. Kabul Singh ILR 25 All 135(F), where Knox and Blair JJ. held that parties should not be assisted to set aside decrees upon points which they did not raise before the Court which tried the matters in issue, and of which they gave no notice to the opposite parties.
After sometime one of the learned Judges, Sir George Knox, in Abdul Majid Vs. Bedyadhar Saran Das, expressed the view that where a Small Cause Court suit is tried by a Munsif on the original side and his decision is reversed on appeal, the High Court is bound to set aside the appellate decree as being passed without jurisdiction. So ILR 25 All 135(F) may be taken to have been dissented from in later rulings.
The next case is Suresh Chunder Maitra v. Kristo Rangini Dasi ILR 21 Cal 249(H). The Calcutta High Court in this case took the view that both parties having submitted to the jurisdiction of the ordinary Court, it was not competent to either of them on second appeal to plead the want of jurisdiction, so as to render the proceedings taken in the suit void. This view has since then been dissented from, especially in Indra Chandra v. Srish Chandra ILR 40 Cal 537(I) and so ILR 21 Cal 249(II) cannot be held to be an authority today.
The decisions in ILR 25 All 135(F) and ILR 21 Cal 249(H) have been followed in Kamruddin v. Mr. Indrani AIR 1924 Nag 17(J) by Baker J.C. and the latter case, that is, ILR 21 Cal 249 (II), has been followed by Staples A.J.C. in AIR 1934 121 (Nagpur) , where it was held that where a suit cognizable by a Small Cause Court has been tried against the provisions of Section 16 as an ordinary suit by a Judge who is not invested with Small Cause Court powers, the parties to the suit having raised no objection to the trial, it should not be considered as a Small Cause Court suit, and appeal would lie from the decision.
As this decision is mainly based on the former Allahabad and Calcutta view as expressed in ILR 25 All 133(F) and ILR 21 Cal 249(H), which have since then been dissented from, the Nagpur decision cannot be held to have laid down correct law. There is no discussion of the main principles in these cases, and, therefore, with respect I should say that the decision are not at all convincing.
They have also ignored the principle laid down by the Privy Council in Ledgard v. Bull 13 I A 134(PC)(L) where at page 145 it was observed by their Lordships of the Judicial Committee that when the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him.
The Privy Council followed this decision in Minakshi v. Subramanya 14 Ind App 160(PC)(M), where it was held that a right of appeal from the decision of a Judge must be given by statute or an equivalent authority; and where there was an inherent in competency in the appellate Court to deal with the question before it, omission to raise before that the Court question of jurisdiction does not operate as a waiver of right to raise it before a higher appellate that consent could not confer on the appellate Court a jurisdiction which it never possessed.
It was on the basis of these two Privy Council ruling that it has subsequently been laid down in a chain of judicial decisions that the mere Circum-stance that the party did not raise the plea of jurisdiction in the appellate Court will not clothe that Court with a jurisdiction not given to it by law (See Hibi Ladli Begam v. Bibi Raje Rabia ILR 13 Bom 650(N).
Mr. Dube also placed reliance on Mahadeo v. Budhairam ILR 26 all 358(O). This decision only laid down that where a suit is a suit of the nature cognizable by a Court of Small Causes, the second appeal would not be competent. It does not discuss at all the question whether the decrees of the first Court and of the Court below were competent. On behalf the Appellant in this case, the High Court was asked to set aside the decrees of the Courts below and to direct the plaint to be returned. Their Lordships (Blair and Banerji JJ.) observed that after having considered the terms of the decree and the award, they did not see any reason to exercise discretion in favour of the Appellant. Here, It will be obvious, that the decree was based on an award and, therefore, the High Court thought it proper not to interfere.
The last case which Mr. Dube, cites is Mathura Prasad v. B.B. and C.I. Rly. Co. AIR 1924 All 691(P), where a suit of a Small Cause Court nature was tried by the Munsif of Kasgunj. It was decreed. The District Judge heard on merits and dismissed the suit in to to. On a revision application u/s 115, CPC Sulaiman J. (as he then was) refused to interfere.
The question whether the District Judge had or had no jurisdiction to hear the appeal was neither raised nor decided in this case. The only view expressed by his Lordship was that gross errors of law are not revisable u/s 115, CPC though they are revisable u/s 25 of the Provincial small Cause Courts Act. So these two Allahabad cases also do not help Mr. Dube.
The question came up before a Full Bench of the Madras High Court in Kollipara Seetapathy v. Kankipati Subbayya ILR 33 Mad 323 (Q) where it was held that where a small cause suit is tried by a Munsif on the original side and his decision is reversed on appeal, the High Court, is bound to set aside the appellate decree as having been passed without jurisdiction. This has been followed in The District Board Vs. P. Kuppuswami Konar alias Kuppuswami Pillai and Others, by Chandrasekhara Aiyar J. and practically by every High Court in India and represents the correct view.
Mr. S.R. Joshi, on behalf of the Applicants is however, not satisfied with this position but desires that the decree of the City Civil Judge, Ujjain should also be set aside, as, according to his arguments the City Civil Judge Ujjain lacked inherent jurisdiction in taking cognizance of the suit. He placed reliance upon a number of rulings.
In my opinion, all these rulings can be divided in to two classes. In some cases, the Munsif who tried the case of a small cause nature according to the ordinary procedure was invested with Small Cause Court''s powers; whereas in the other class, he was not so invested with those powers, but '' there was another Judge in the station invested with such powers.
Examples of the latter class may be found in Municipal Board of Benares Vs. Shambhu Nath, and in Jodha Bijal Vs. Maganlal Chhaganlal Desai, . In both these, cases, the decisions of the appellate Court and that of the Munsiff were swept aside and the plaint was ordered to be returned for presentation to the proper Court. It will be obvious that these were the cases where the Munsiff lacked inherent jurisdiction to try a suit of a Small Cause nature.
But the same principle has not been held applicable to those cases where the Munsiff or the trial Court possessed both jurisdictions, ordinary as well as the jurisdiction of Small Cause Court. Both these jurisdictions are no doubt separate and distinct and the Small Causa Court jurisdiction is in its nature exclusive. The position of the Court having such double jurisdiction was explained by Mr. Justice (Birdwood J. concurring) in. Pitamber Vajirshet v. Dhondu Navapa ILR 12 Bom 486(U), where the view was expressed that having the small Cause Court jurisdiction the Judge must be taken to have dealt with the case under that jurisdiction, even if he was not quite alive to it at the time.
A suit taken cognizance of in this way does not cease to be a suit tried under the Small Cause Court Act because of some divergence from its summary procedure. A surplusage of form and elaborateness does not change the character of the decision for the purpose of its finality. In Shankarbhai v. Somabhai ILR 25 Bom 417(V), a Division Bench (Candy and Whitworth JJ.) of the Bombay High Court laid it down that the character of the suit was not altered by the mode in which the subordinate Judge had exercised his jurisdiction and that his decision being final was not appeasable to the District Court.
This decision has been followed by a Division Bench of the Calcutta High Court (Carnduff and Beachcroft JJ.) in ILR 40 Cal 537(I) and by a Division Bench of the Bombay High Court (Chandaverkar and Heaton JJ.) in Narayan Raoji v. Gangaram Ratanchand ILR 33 Bom 664(W). In the later case ILR 12 Bom 468(U) has been referred to; and it has been observed that the entering of the suit in the file of the regular suits could not take it away from the category of Small Causes, nor could the fact that the Judge tried the suit under his ordinary jurisdiction deprives it of its character as a small cause.
In U.K. Seal v. Aramugam Chettyar AIR 1938 Rang 35(X), Dunkley J. explained the position more clearly by observing thatthere is no provision of law which prevents the Judge of a Small Cause Court from recording the evidence given at any trial be-fore him at full length, or from delivering a full and considered judgment such as is ordinarily passed in a regular suit. Therefore, the proceedings before the trial Court in such cases cannot be held to be entirely without jurisdiction or mere nullity.
On the basis of these decisions it must be held in the present case that the decree of the trial Court cannot be held to be a nullity, but it should be taken to be a decree of a Small Cause Court, Ujjain, and the decision, being final was not appealable to the Additional District Judue, Ujjain. The learned Additional District Judge ought to have rejected the appeal. He has, however interfered with the decree passed in a suit of a small cause nature which is not permitted by law
I, therefore, allow this revision and set aside the decree of the Additional District Judge, Ujjain, and restore that of the trial Court. In the Circumstances of the case when the mistake is common to all the parties and to the Court, there will be no order as to costs here and before the Additional: District Judge, Ujjain.