Medam Venkata Subbaramiah Setty vs K. Hari Rao

Subba Rao, C.J.—This is a reference made to this Court by the District Munsif ol Kurnool under, Order XLVI, Rule 6 (1), Code of Civil Procedure.

The facts that gave vise to I he reference may be briefly stated. Two suits, O. S. No. 85 of 3.S55 and O.S. No. 361 of 1955 were filed in the Court of the District Munsif, Kurnool for the recovery of rent. The Plaintiff and the Defendant in both the suits wore the same. The said suits were filed as original suits in the District Munsif''s Court as at that time the Court of the Subordinate Judge, Kurnool did not have small cause jurisdiction. Subsequently, by a notification of the High Court of Andhra in Roc- No. 2823/55-B-l dated 7-2-1955 published at page 839 of Part II of the Andhra Gazette dated 22-12-1955, '' the Court of the Subordinate Judge, Kurnool was invested with small cause jurisdiction over the local limits of the District Munsif of Kurnool with effect from the date of the publication of the notification in the gazette and the pecuniary limit of that jurisdiction was fixed at Rs. 2,000/-. The question is whether the District Munsif continues to have jurisdiction to dispose of the said suits as original suits or they should be transferred to the Subordinate Judge''s Court to be decided by it in exercise of its small cause jurisdiction.

The said question directly arose before Umamaheswaram J. in Appalanarasimham v. Mutyala Rao, 1956 AnWR 280 (A). There, the Respondent instituted a suit on 26th February 1954 in the Court of the District Munsif for recovery of a sum of Rs. 1033-12-9. By the aforesaid notification, the jurisdiction of the Subordinate Judge exercising small cause powers had been increased up to an amount of Rs. 2000/-. The Petitioner raised the objection before the District Munsif that he had no jurisdiction to try the suit. The objection was overruled. The learned Judge, disagreeing with the view of the District Munsif, held that as the Subordinate'' Judge was invested with jurisdiction to try the suit on the small cause side, the District Munsif had no further jurisdiction to proceed with the suit though it was rightly instituted before him. At page 281, the learned judge gave his reasoning for his conclusion as follows ;

The (Section 15 of the Provincial Small Cause Courts Act) is quite clear that a suit cognizable by the Court of Small Causes shall not be tried by any other Court. As the Subordinate judge was invested with jurisdiction to try the suit on the small cause side, the District Munsif had no further jurisdiction to proceed with the suit though it was rightly instituted before him.

Unfortunately, the learned Counsel, who appeared before the learned Judge, did not bring to his notice the decision of the Full Bench of the Madras High Court and also the decision of a division Bench of the same High Court following the said Full Bench decision.

Before adverting to the said two decisions, it may be convenient to read the relevant sections of the Provincial Small Cause Courts Act and the) Madras Civil Courts Act (III of 1873).

Provincial Small Cause Courts Act:

Section 5:

The State Government may, by order in writing, establish a Court of Small Causes at any place with the territories under its administration beyond the local limits for the time being of the ordinary original Civil jurisdiction of a High Court of Judicature established in a Presidency Town.

Section 16:

Save as expressly provided by this Act or any other enactment, for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.

Section 32:

(1) So much of Chapters III and IV as relates to

(a) the nature of the suits cognizable by Court of small causes,

(b) the exclusion of the jurisdiction of other Courts in those suits,

applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts.

(2) Nothing in Sub-section (1) with respect to court invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceeding commenced in those Courts before the date on which they were invested with that jurisdiction.

Madras Civil Courts Act (III of 1873):

Section 28:

The High Court may, by notification in the Official Gazette, invest within such local limits as it shall from time to time appoint, any District or Subordinate Judge with the jurisdiction of a judge of a Court of Same Causes for the trial of suits cognizable by such Courts up to the amount of rupees two thousand, and any District Munsif with the same jurisdiction up to the amount of Rupees five hundred, and may, by like notification, whenever it thinks fit, withdraw such jurisdiction from the District or Subordinate Judge or Munsif invested.

(4a) The aforesaid provisions may be summarised thus: Section 5 of the Provincial small Cause Courts Act empowers the State Government to establish a Court of Small Causes at any place within the territories under its administration. Section 28 of the Civil Courts Act confers power on the High Court to invest any District or Subordinate Judge with the Jurisdiction of a Judge of a Court of Small Causes. Where a Court of Small Causes was constituted by the Government, save as expressly provided by the Provincial Small Cause Courts Act or any other enactment, Section 16 bars the jurisdiction of any other Court having jurisdiction within its local limits to entertain a suit cognisable by a Court of Small Causes. Section 32 makes so much of Chapters III and IV as to matters related therein applicable to Courts invested with the jurisdiction of a Court of. Small Causes under any other Act.

This section, in effect, lays down that in almost all important respects Courts invested with small cause powers stand on the same footing as Courts functioning entirely as Small Cause Courts. By reason of this provision, Section 16 of the Act which is in Chapter III, is applicable to Court invested with small cause powers. But Sub-section (2) of Section 32, which embodies a saving clause, preserves the jurisdiction of a Court in respect of a suit instituted or proceedings taken before such Court is invested With small cause jurisdiction.

But this Section in terms is not comprehensive Enough to take in a case where a suit was instituted in one Court and the jurisdiction of a Court of Small Causes was conferred on a different Court. In the present case, the suit was originally filed in the District Munsifs Court and this High Court conferred small cause powers on the Subordinate Judge''s Court, such a case is directly covered by Section 16. Therefore, unless the jurisdiction of the District Munsifs Court to try the suit is saved by any other provisions of the Act or by other enactment for the, time being in force, the only Court competent to exercise jurisdiction would be the Subordinate Court on whom small cause powers have been conferred.

Reliance is placed by the Government Pleader on Order 7 Rule 10 CPC support of his contention that the jurisdiction of the Munsifs Court to try a suit is saved notwithstanding the subsequent conferment of small cause powers on the Subordinate Judge''s Court. Order 7, Rule 10 reads:

The plaint shall at any stage of the suit be returned to be presented to this Court in which the suit should have been instituted.

Under this statutory provision, a plaint could be returned only if at the time the plaint was filed, there was another court in which the suit should have been instituted, in the present case, at the time of the suits in the District Munsifs Court were filed, it cannot be said that the suits should have been filed in the Subordinate Judge''s Court for, at that time, no small cause powers were conferred on that Court. The subsequent conferment of small cause powers on anther Court would not enable the District Munsiff''s Court to return the plaint and, therefore, it should proceed with the trial of the suit.

This provision, in our view, saves the jurisdiction of the District Munsifs Court and preserves it notwithstanding the subsequent conferment of small cause powers or. another Court. This was the view expressed by Saunders J in Hichha Mali v. Hiri Mali AIR 1934 Pat 504 (B) and we respectfully accept his view. If so, it follows that the District Munsifs Court has jurisdiction to try the suit.

We shall now proceed to consider the cases cited at the Bar. A Full Bench of the Madras High Court in Ilari Kainayya v. liar Venkayya, ILR 26 Mad 212 (C) considered the scope of Section 32(2) of the Provincial Small Causes Courts Act. The facts in that case were: A District Munsif who had small cause ''jurisdiction up to Rs. 100/- had on his file on the regular side of his Court suits of a small cause nature for amount between Rs. 100/- and Rs. 200/- some of which were partly tried. The Small Cause jurisdiction was then extended to; Rs. 200/- whereupon he transferred the cases in question to his small cause file and tried and disposed of memo as small causes. The Full Bench held that the transfer was not in accordance with law In so holding, the Full Bench made the following observations on the effect of Section 32(2):

The object of the Sub-section appears to have been to prevent doubts arising as to whether the investment of a Court with small cause jurisdiction acted retrospectively with reference to a suit which had been commenced in that Court before the Court was so invested. The effect of holding that, in a case like the present, it was competent for the Court to transform a regular suit into a small cause suit would be to deprive a party of a right of appeal which he had at the time he instituted his suit.

This decision does not directly apply to the present case, as in that case, the powers of a small cause Court were conferred on the same Court wherein the original suit was pending.

That situation was governed by the provisions of Section 32(2) of the Provincial Small Cause Courts Act. But the principle accepted by the Full Bench, namely that the conferment of small cause jurisdiction had no retrospectively inasmuch as the party would be deprived of his right of appeal is equally applicable to a suit pending in a different Court.

There was an express ruling on the present question by a Division Bench of the Madras High Court Kannan Nambiar v. Anantan Nambiar ILR 29 Mad 124 (D). There, a suit was instituted as an original suit in the District Munsifs Court. Subsequently, small cause powers were conferred on the District Court in respect of the subject matter of the suit. In holding that the suit may remain for trial in the District Munsifs Court, the learned Judges observed:

When the suits were instituted in the Bandra Court; they were rightly instituted there as original suits and under the ruling of ILR 26 Mad 212 (C) referred to by the District Judge, they remained for trial as original suits.

It is no doubt true, that there is an essential distinction between the facts in ILR 2G Mad 212 (C) and ILR 29 Mad 124 (D) Viz: that in the former small cause powers were conferred on the Court, wherein the suit was already pending whereas in the latter the two courts were different. But, the learned Judges, presumably relying upon the principle recognized in the Full Bench Decision Viz: that Section 32(2) was only a recognition of the rule against retrospectively, held that the Munsifs Court continued to have jurisdiction to try the suit. That decision was given in 1905 and it has stood the test of time for half a century. We do not think we are justified in differing from this judgment unless there are compelling reasons, which we do not find in this case.

The Full Bench decision was followed by various High Courts. See Sambhu Dhanaji v. Ram Pithu, ILR 28 Bom 244 (E) Radha Kant Missir Vs. Purna Chander Tripathi and Others, and Bindesri and after his death Bhagwan Das and Another Vs. Ganga Prasad, . But, in all these cases, the Court wherein the suit was filed and the Court on which small cause powers were conferred were the same.

We are bound by the Bench decision and do not see any reason to differ from it or refer the case to a Full Bench.

In the result, we hold that the Court of the District Munsif continue to have jurisdiction to hear the suit as an original suit. The reference is answered accordingly. We are grateful to Sri D. Radha Krishnamurthy for helping us in the case as Amicus Curiae.