Arunagiri Goundan and Another vs Ramaswami Pillai

King, J.—The subject matter of this petition is a promissory note executed by the first defendant in a suit in the Court of the District Munsif

of Tindivanam numbered as O.S. 193 of 1936. The plaintiffs are the nephews of one Shanmugha Goundan in whose favour the promissory note

had been assigned. Shanmugha Goundan is now dead and the plaintiffs have filed this suit as members of the joint family to which Shanmugha

Goundan had belonged and who therefore continue to own the joint family property. The suit was decreed by the learned District Munsif in

somewhat unusual circumstances. It was originally filed as a small cause suit in Tindivanam, its valuation being below Rs. 300 and the Judge who

was then in charge of the Court having extended small cause powers. This Judge was succeeded by another Judge who was not so empowered

and so the suit was transferred to the Original Side. A third District Munsif then presided over the Court and he was empowered to try all suits up

to the valuation of Rs. 300 as small cause suits. This third District Munsif has clubbed together three suits and disposed of them in a single

judgment. The third of these suits is the one which was numbered as O. Section 193 of 1936. The first defendant in O. Section 193 of 1986 after

the decree had been given against him, appealed to the learned District Judge of South Arcot. The learned Judge set aside the decree on the

ground that the plaintiffs were not entitled to sue as they had not obtained a succession certificate. This is now a revision petition by the plaintiffs

against the decree of the learned District Judge dismissing their suit.

The first point taken in revision is that the learned District Judge had no jurisdiction to entertain the appeal. It is contended that when a suit is

tiled as a small cause suit and is disposed of by a Judge who possessed the necessary powers to try it as a small cause suit, it must be deemed to

have been disposed of as a small cause suit and therefore there can be no right of appeal. It is contended further that this legal principle must be

applied even though the suit be numbered as an original suit. In support of this contention I have been referred to a decision of Stone, J., reported

in Ramaswami Muthirian and Another Vs. The Firm of Ki Karu, Rama Ki and Others, . The facts there are almost precisely similar to those in the

present case and with respect I do not see any reason why I should not follow the reasoning of the learned Judge.

By the respondent (first defendant) I have been referred to two rulings of this Court, one of Patanjali Sastri, J., in Kamalathammal Vs. Harihara

Aiyar, , and the other in P.P.V.P.L. Chockalingam Chettiar (deaceased) and Another Vs. K.P.S.A.R. Palaniappa Chettiar, . Both of these cases

dealt with facts which can be easily distinguished. They are cases of suits which began their existence as small cause suits in the Court of a

Subordinate Judge and were subsequently transferred for trial to a District Munsif. It was held in both of them that the District Munsif was not

debarred from trying the suits from the mere fact that they had first been instituted as small cause suits in the Court of a Subordinate Judge. It is of

course impossible for any Court to have held in the case of suits valued at more than Rs. 300 that when a District Munsif did in fact come to try

them, he must be deemed to have tried them as small cause suits. These rulings therefore afford no assistance to the learned advocate for the

respondent in attempting to challenge the authority of Ramaswami Muthirian and Another Vs. The Firm of Ki Karu, Rama Ki and Others, . The

argument for the petitioners must be accepted that the learned District Judge had no jurisdiction to hear this appeal.

The only question that remains is whether in these circumstances I should interfere u/s 115 of the Code of Civil Procedure. Such interference is

of course permitted, and in my opinion should be practised unless there are clear indications that the learned District Judge is obviously right and

the learned District Munsif obviously wrong upon other points in the case. I have not gone fully into the question whether the plaintiffs had the right

to sue in this matter. It seems to me however, prima facie that if they are entitled to act for the members of the family, no succession certificate

would be necessary for them. See the decision of Beasley, J., in Arunachalam Chetty v. Jagannatha Pillai (1926) 24 L.W. 659. I do not propose

now to consider the objections sought to be raised on behalf of the respondent that it was in reality the other members of the joint family who had

the right to sue, and not the plaintiffs. The situation is simply this : on the finding of fact the respondent owes money upon this promissory note to

the joint family. A decree has been passed against him by the District Munsif at the instance of the plaintiffs on the clear understanding that the

property in the decree belongs to the joint family. The first defendant therefore suffers no prejudice from being compelled to discharge his

obligations under this decree. There can be no question of any other plaintiffs suing him for this debt on the allegation that the present plaintiffs have

wrongly appropriated it to themselves. There therefore remains no obstacle to my taking action u/s 115 of the CPC and this being a clear case in

which the learned District Judge has acted without jurisdiction I set aside his decree and restore the decree of the learned District Munsif.

During the pendency of the appeal the first defendant filed an application claiming relief under Act IV of 1938. This application was of course

not dealt with by the learned District Judge because he had dismissed the plaintiffs'' suit and its consideration therefore became unnecessary. The

first defendant has now repeated his application claiming relief under the Act in this Court; and my decision confirming the decree of the learned

District Munsif will be subject to the disposal of that application which is herewith sent for disposal to the learned District

The respondent must pay the costs throughout of the petitioners.