Mangal Sen vs Rup Chand and Another

Sir John Edge, Kt., C.J. and Knox, J.—This is a question referred to us by the Subordinate Judge of Saharanpur, under s. 617 of the Code of, Civil Procedure. A suit was filed as a Small Cause Court suit in the Court of the Subordinate Judge of Saharanpur, the Subordinate Judge having had Small Cause Court powers conferred upon him. While the suit was pending before that Court, the Subordinate Judge went on leave. The gentleman who was appointed to officiate in the absence of the Subordinate Judge had not had conferred upon him Small Cause Court powers. The District Judge made an order transferring this suit and others to the Court of the Munsif of Saharanpur to be tried and disposed of as a Munsif''s case. The Munsif had had conferred upon him Small Cause Court powers to the extent of Rs. 50. The suit in question was one for Rs. 69. The plaintiff being dissatisfied with the decree of the Munsif, appealed to the District Judge of Saharanpur, who transferred the appeal to the Court of the Subordinate Judge. In what we are going to say we are not deciding whether the suit was a suit of the nature of Small Cause Court suits or cognizable by a Court of Small Causes as such. That may be a question yet to be decided by the Subordinate Judge. "We merely assume for present purposes that it was a Small Cause Court suit. On that assumption we give the following opinion:--It is not necessary to decide whether or not the decision in Kauleshar Rai v. Dost Muhammad Khan ILR 5, All., 274 was right in law and applies to this case. If s. 25 of the CPC applies here, and the order was in fact made under that section, the last clause of that section would apply, and the Munsif, for the purposes of this suit, must be deemed to have been a Court of Small Causes competent to try it as such. The transfer to the Munsif''s Court was made after the Subordinate Judge, who had Small Cause Court powers, had proceeded on leave. If by reason of this fact, s. 25 of the CPC did not apply, then we must apply s. 35 of the Provincial Small Cause Courts Act (Act IX of 1887). That section requires to be carefully looked at. It is quite possible that the Legislature may not have expressed in the section what it intended, but we must construe the section as we find it. Clause (1) of the section is as follows:--

Where a Court of Small Causes or a Court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case, whether before or after decree, which, if the Court had not ceased to have jurisdiction might have been had therein, may be had in the Court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.

The suit in the section referred to is a Small Cause Court suit, and the proceeding in the section is a proceeding in the Small Cause Court suit. The result is, according to our construction of the section, that when, by reason of a Small Cause Court ceasing to exist a suit is transferred to another Court, the proceedings still continue to be Small Cause Court proceedings, and for this purpose the Court to which the transfer is made must be treated as if it was a Court of Small Causes having jurisdiction to hear the suit transferred to it. In other words, whatever the intention of the Legislature was, we read s. 35 of Act IX of 1887 in the same sense that we read the concluding paragraph of s. 25 of the Code of Civil Procedure. With this expression of opinion the record will be returned to the Court of the Subordinate Judge of Saharanpur.