Murugesa Mudaliar vs Davva Venkata Kesavalu Chetty

Ananthakrishna Ayyar, J.—These are the Civil Miscellaneous petitions for transfer of certain suits pending in the Court of the District Munsif

of Ranipet, and the Court of the Subordinate Judge of Bezwada, respectively. The petitioner in C. M. P. 4205 of 1928, is Murugesa Mudaliar,

plaintiff in suit 58 of 1928 on the tile of the District Munsif''s Court of Ranipet (North Arcot District). He filed that suit against D. Venkatakesavulu

Chetty to recover a sum of Rs. 870 alleged to be due in respect of goods (brass vessels) supplied by him to the defendant. After the suit in Ranipet

Court was decreed ex parte, it is alleged that the defendant therein (Venkatakesavulu Chetty) filed small cause suit No. 210 of 1928 on the file of

the Sub-Court, Bezwada (Kistna District) against Murugesa Mudaliar to recover Rs. 542 alleged to be due in respect of the same dealing in brass

vessels. The ex parte decree passed by the District Munsif of Ranipet was subsequently set aside and the suit posted for hearing.

Murugesa Mudaliar the plaintiff in the Ranipet suit has applied for the transfer of the small cause suit 210 of 1928 from the file of the Court of

the Subordinate Judge of Bezwada to the file of the District Munsif of Ranipet to be tried along with original suit No. 58 of 1928 on the file of the

District Munsiff. Venkatakesavulu Chetty, the plaintiff in small cause suit No. 210 of 1928 on the file of the Subordinate Judge of Bezwada has

applied for the transfer of original suit 58 of 1928 from the file of the District Munsif of Ranipet to the file of the Court of the Subordinate Judge of

Bezwada to be heard along with small cause suit No. 210 of 1928 on the file of the Subordinate Judge.

Interim stay has been granted in respect of both the suits, and the above petitions have now come on for final disposal. I have heard Mr.

Desikan on be-half of the plaintiff in the Ranipet Munsif''s Court suit, and Mr. P. Satyanarayana Rao on behalf of Venkatakesavulu Chetty the

plaintiff in the Sub-Court suit.

The first question that has to be considered is whether there is jurisdiction to transfer the small cause suit now pending before the Subordinate

Judge of Bezwada to the District Munsif of Ranipet (seeing that the value of the small cau3e suit is Rs. 542, whereas the Small Cause jurisdiction

of the District Munsif of Ranipet is only Rs. 100, that is less than Rs. 542). It is contended by Mr. K.S. Desikan that u/s 24, Clause 4, Civil P.C.,

the transfer could be made and that the result of the transfer would be that the transferred suit should be tried as a small cause suit by the District

Munsif, and that there is no valuation limit regarding suits that could be so transferred prescribed by Sub-clause 4, Section 24. He drew my

attention to the cases reported in Sankararama v. Padmanabha [1912] 38 Mad. 25 Chhotey Lal v. Lakhmi Chand [1916] 38 All. 425 and Sukha

v. Raghunath Das [1917] 39 All. 214. On the other hand, Mr. P. Satyanarayana Rao contended that the small cause jurisdiction of the District

Munsif of Ranipet being less than the value of the suit at Bezwada, the District Munsif has no jurisdiction to try the Bezwada suit as a small cause

suit. He referred to Clause 1 (b) (ii), Section 24, Civil P.C., which lays down that the Court to which a suit is transferred should be competent to

try that suit.

Turning to the decisions quoted by Mr. Desikan, I find that the decision in Sankararama v. Padmanabha [1912] 38 Mad. 25 is not a decision on

the point I am now considering. There the District Judge of Tinnevelly transferred a small cause suit pending before the Subordinate Judge of

Tuticorin to the District Munsif of Srivaikuntam to be tried as an original suit. The suit was again transferred to the file of the Additional District

Munsif of Tinnevelly, who tried it as an original suit and whose decision was on appeal reversed by the appellate Court. The question before the

High Court was whether an appeal lay against the decision of the Additional District Munsif of Tinnevelly. The learned Judges of the High Court

hold, having regard to Clause 4, Section 24, the Additional District Munsif should be deemed to have tried the suit as a small cause suit and that

the directions issued by the District Judge to have it tried as an original suit are ildlegal and issued without jurisdiction. The High Court accordingly

held that the said directions should be disregarded as not being warranted by Section 24, and that it must be taken that the suit was tried by the

District Munsif as a small cause suit. No question was raised before the High Court whether the said suit could have been transferred to the District

Munsif at all because he had no jurisdiction to try such a suit on account of the valuation of the suit. From the report it does not appear that any

objection on the score of valuation was raised and pressed before the High Court. It is no doubt true that at p 27 of the report in the judgment of

Sundara Ayyar, J., the following sentence occurs:

It is no doubt the fact that the Srivaikuntam Munsif had not been invested with jurisdiction to try small cause suits of the value of this suit.

It does not appear, however, whether the Additional District Munsif of Tinnovelly who ultimately tried the suit had such jurisdiction. In any event

this question of want of jurisdiction on the score of valuation, was not made a ground of attack before the High Court and the High Court judgment

does not deal with such an objection; so that I am not able to derive any help from that decision. ''The next case relied on is that reported in

Chhotey Lal v. Lakhmi Chand. That was a decision of a Single Judge, Sir P.C. Banerji, J., from the facts set out at p. 426 it appears that a suit for

Its. 422 filed as a small cause suit in the Court of the Subordinate Judge of Muttra, whose small cause jurisdiction extended up to Rs. 500, was

transferred by order of the District Judge to the District Munsif of Muttra whose small cau9e jurisdiction extended only up to the limit of Rs. 50.

An ex-parte decree was passed by the Munsif. The defendant applied to have the ex parte decree set aside, and the question arose whether he

ought to have deposited the decree amount or given security for the same, u/s 17, Prov. Sm. C. C. Act, at the time of presenting the application.

The Munsif having held that - the section did not apply, and having granted the defendant''s application, and having set aside the ex parte decree,

the plaintiff filed a revision petition. The learned Judge stated the question for decision as follows:

The real question in this case is whether Section 17, Small Cause Courts Act, applies to the present case.

No objection was raised on the ground that the District Munsif had no jurisdiction to try the suit having regard to its valuation. The Court relied

on Clause 4, Section 24 and held that the decision of the District Munsif should be taken to have been pissed by a Court of Small Causes and that

the provisions Section 17, Small Cause Courts Act, applied. The next case relied on is the one reported in Sukha v. Raghunath Das. There, the

District Judge transferred a small cause suit pending in the Subordinate Judge''s Court of Muttra; the District Munsif to whose Court the case was

transferred was not invested with the powers of a Small Cause Court Judge. He, however, tried the case as a Small Cause Court Judge and

decreed the claim in plaintiff''s favour. The defendant''s appeal was dismissed by the lower appellate Court on the ground that no appeal lay. The

defendant filed a revision petition before the High Court, and the only point argued before the High Court was whether an appeal lay or not. The

High Court held that having regard to Section 24, Clause 4, Civil P.C. the District Munsif should be taken to have decided the suit as a Court of

Small Causes and that no appeal lay against his decree. The question whether a Small cause suit could be transferred to a Court which was not

either a Court of Small Causes, or one invested with jurisdiction of a Court of Small Causes, does not seem to have been argued or decided by the

High Court in that case. No doubt there is an observation at p 221 of the report:

The legislature apparently intended that the District Court would have power to make an order of transfer such as has been made in the present

case, trusting to the discretion of that Court and its knowledge of local conditions not to make an order of transfer to a Court not competent to

make a proper exercise of the special powers which an order of transfer carries with it in respect of particular cases so transferred.

If the learned Judge meant by the above observation that a small cause suit could be transferred by a District Court to the file of a Munsif''s

Court which was not a Small Cause Court and which was not invested with small cause jurisdiction, it seems to me with all respect that the

proposition is unsustainable. The same remarks apply to the decision of Lindsay, J., reported in Ram Charan Banwari Lal Vs. Kishori Lal Ram

Sarup, . The only question raised was whether an appeal lay. The decision in In Re: Bagiammal and Another, seems to be relevant. A suit pending

on the file of the Court of the Small Causes, Madras, was transferred by a Bench of two learned Judges of the High Court by order passed u/s 24,

Clause 4, Civil P.C. on C. M. P. 2446 of 1916, to the City Civil Court to be tried with original suit No. 277 of 1916 pending in the City Civil

Court. The correctness of the order being doubted, having regard to the provisions of Section 24 (L) (b) (ii), the Chief Justice was moved by C.

M. P. 334 of 1917 to regularize the proceedings by passing order u/s 5 (2), City Civil Court Act. The learned Chief Justice (Sir John Wallis Kt.) in

passing orders u/s 5 (2), City Civil Courts Act and directing the transfer, observed as follows:

Section 24, Civil P.C., only authorises transfer to a Court competent to try the case, The City Civil Court is not such a Court (Section 3, City Civil

Court Act) and do not think that Section 24, Clause 4, Civil P.C. makes it so. It can only become so by the Chief Justice of the High Court

authorizing the City Civil Judge to try the case in his capacity of Small Cause Court Judge u/s 5 (2), City Civil Courts Act. I so direct him.

In J. Manicka Chettiar and Another Vs. Kuppuswami Naicker and Others, , the present learned Chief Justice remarks at p 118 as follows:

I can only transfer them to a Court which has jurisdiction to try them.

u/s 24 (1) (b) (ii), Civil P.C., the Court to which a suit is transferred should be competent to try or dispose of the same. ""Competency"" clearly

means:

with reference to the nature and the amount or value of the subject matter of the suit.

In fact these last words occurred in the previous Code of 1882, Section 25, and have been omitted from Section 24, of the present Code

evidently as unnecessary since the presence of the word "" competent "" in Clause 1 (b) (ii) of the section clearly implies the same. A Court may not

be competent to try small cause suit either because of the valuation of the suit or because it had no small cause jurisdiction at all. I cannot agree

with the contention that an order of transfer passed under Sub-clause 4, Section 24, Civil P.C. could invest a Court not having small cause

jurisdiction with one; nor could such order enable a Judge having small cause jurisdiction up to a particular limit to try as a small cause suit a suit

exceeding that limit. Otherwise a District Court could in this Presidency at present transfer a small cause suit, of the value of say Rs 1,000 pending

before a Subordinate Judge to be tried by a District Munsif as a small cause suit, though the jurisdiction of District Munsif is limited under

notification issued by the Local Government under the provisions of Small Cause Court Act and the Madras City Civil Courts Act, to the trial of

small cause suits not exceeding Rs. 300 in value. Similarly, a Judge of the High Court could transfer a suit of the value of Rs. 2,000 from the file of

the Presidency Small Cause Court to a District Munsif to be tried as a small cause suit. But as already mentioned it is only the Local Government

that has the jurisdiction u/s 15, Provincial Small Cause Courts Act to invest particular Courts of Small Causes with jurisdiction up to Rs. 1,000;

and u/s 28, Madras Civil Courts Act, it is only the High Court (and not one Judge thereof) that has got jurisdiction by notification in the Official

Gazette to invest District Munsifs with small cause jurisdiction, and that only up to the amount of Rs. 300. It therefore seems rather curious that

District Court or a Division Bench of the High Court should have power to direct District Munsifs to try suits of the value of Rs. 1,000 and 2,000

respectively as small cause suits. It should not be forgotten that no appeals lie against the decree passed in such suits. The above considerations

were pressing upon me when the question was argued before me. In none of the cases quoted before me has this question of competency been

expressly raised and decided. If the case in Sankararama v. Padmanabha, had decided this question, I should of course be bound by the same.

But for reasons already mentioned by me, this question was not raised in that case, much less decided by She learned Judges. I accordingly took

time to consider my judgment in this case, and in the meantime asked the office to find out whether any similar cases had arisen for decision after

the ruling reported in 38 Mad. 25. I am obliged to the office for having brought to my notice the following case which I think helps me in the

decision of the point.

In C. M. P. 151 of 1917, the High Court was moved by the defendants in Small Cause Suit No. 16,870 of 1916 on the file of the Court of

Small Causes Madras, to transfer the said suit to the Principal District Munsif''s Court of Bapatla to be tried along with Original Suit No. 722 of

1916 on the file of that District Munsif. As generally happens in such cases, the subject matter of the two suits was practically the same, and the

evidence in both the suits was practically the same. The High Court, Old-field and Bakewell, JJ., by order dated 5th February 1917 ordered the

transfer as prayed for. It was subsequently found out that the value of small cause suit was Rs. 1,627-4-6 and an application for review was filed

immediately by the plaintiff in the Presidency Small Cause Court suit on the ground of valuation of the suit and the consequent incompetency of the

Munsif to try the said suit. The learned Judges reviewed the prior order, and on 16th February 1917 passed the following order:

As the fact that the respondent''s case could not ordinarily be disposed of by the District Munsif sitting as a Small Cause Court, was overlooked,

we allowed the review petition. Proceeding at once with the consent of the parties to our hearing of the application for transfer, we hold that it

should not be granted in the circumstances and dismiss it. No orders as to costs.

This clearly is a decision by two learn-e Judges of the High Court on the exact point now before me. Though the learned Judges have not

elaborated the reasons for their opinion, it is clear that the considerations set out by me above receive support from the order passed by the

learned Judges. The question raised before me relates to an important matter of practice of frequent occurrence and there should be no doubt on

such a matter of practice. Having regard to the decision of the two learned Judges-mentioned above, and the other considerations mentioned by

me already, I have come to the conclusion that the small cause suit now pending before the Subordinate Judge of Bezwada should not be

transferred to be tried by the District Munsif of Ranipet. These considerations-have not been considered in the decision of the Calcutta High Court

reported in Madhu Sudan Gope v. Behari Lall Gope [1918] Cri.L.J. 461. The Court there refers only to Section 24 (4) and not to the provisions

of Section 24 (1) (b) (ii) relating to the competency of the Court to which the suit is transferred. In any event I should"" not prefer the same to the

decision of this Court mentioned above. Coming to the petition No 4,401 of 1928 filed by Venkatakesavulu Chetty, the plaintiff in the Bezwada

suit, I note that the suit in. Ranipet was filed first; and it was open to Venkatakesavulu Chetty to have filed either a separate suit in the Ranipet

Court, within whose jurisdiction Murugesa Mudaliar was living, claiming the amount due to him according to his version. He might also, for what

appears, have filed a counter claim in respect of his demand.

It is not clear to me that the effect of transferring suit No. 58/28 to the file of the Subordinate Judge would really lead to a satisfactory solution

of conflict of decisions; for if the decision of the Subordinate Judge passed on the transferred suit be open to appeal, then the findings passed on

such an appeal need not necessarily be the same as the findings arrived at by the Subordinate Judge in the two suits. Should however, it be held

that no appeal lies from the decision of the Subordinate Judge on the transferred suit : see Uma Charan Sen Gupta v. Chinta Roy [1916] 36 I.C.

881 then in the circumstances of this case it seems to be really unjust that the plaintiff in the Ranipet Court who filed the suit for the larger amount

and that long before the other side filed the small cause, suit in the Bezwada Subordinate Judge''s Court, should have to forgo the right of appeal

from any decision that might be passed by the Ranipet Court; in the circumstances of this case I do not feel justified in bringing about such a result.

I therefore dismiss Venkatakesavulu Chatty''s application No. 4,401 of 1928.

One of the prayers in C. M. P. 4,205 of 1928 filed by the plaintiff in the. Ranipet suit is that the proceedings in small cause Suit 210 of 1928

on the file of the Subordinate Judge of Bezwada may be stayed pending disposal of the Ranipet suit. In the circumstances I think that is a prayer

that I should grant. I accordingly direct that the proceedings in small cause Suit No. 210 of 1928 on the -file of the Subordinate Judge of Bezwada

be stayed pending disposal of Suit No. 58 of 1928 on the file of the Court of the District Munsif of Ranipet. The question whether the stay of Suit

210 of 1928 should be continued in case of an appeal against the decision of the Ranipet Court will have to be considered, if necessary, later on,

having regard to the circumstances then existing. I make no order as to costs in any of these petitions.