Puthiyamatummal Peringati Cheria Mammad vs Puthiyamatathumal Peringati Mammad and Others

Stone, J.—This batch of Civil Revision Petitions raises a point of some little interest u/s 24, Civil Procedure Code. The facts in all the cases

are in their essence as follows: The plaintiff filed a suit in a Court which had two jurisdictions, the ordinary original jurisdiction and the small cause

jurisdiction. At the time of filing the suit the subject-matter in dispute was above the small cause Court limit and in each case accordingly the suit

was filed on the original side. Subsequently and before the suit was ready for hearing the small cause jurisdiction of that Court was increased so as

to be such that each of these suits was within the increased jurisdiction. Following upon that increase of jurisdiction and of its own motion the

District Court operating u/s 24(1)(b)(II) transferred the suits for trial to the small cause side of the Court in which instituted being a Court

subordinate to the District Court. At the time of trial an application by the defendant was made that they be tried as original suits. That application

was rejected and the cases were tried with all the incidents of a small cause suit except that, it so happened that the learned trial Judge took a note

of the evidence and delivered a judgment. As a consequence of their being tried as small cause suits the parties have been deprived of the right of

appeal which they otherwise would have had. The party complaining in these revision petitions is in each case the defendant.

Now it is said on the one hand that the learned District Judge had no power to make the transfer and on the other hand that he had that power.

In my opinion the true position is as follows: As was pointed out in Hari Kamayya v. Hari Venkayya ILR (1903) 26 Mad. 212 the effect of

Section 32(2) of the Provincial Small Cause Courts Act of 1887 is that none of the provisions of that Act apply to a suit which has been

commenced (in a Court which has been invested with Small Cause jurisdiction) before the date when the Court was so invested. It was argued in

that case that Section 32(2) only applies where a Court is invested with Small Cause jurisdiction for the first time and not as in the case that the Full

Bench was considering in Hart Kamayya v. Hari Venkayya I.L.R.(1903) 26 Mad. 212 and as I am considering now, when the pecuniary limit of a

jurisdiction which has already been conferred is raised. The Full Bench case came to the conclusion that the sub-section should not be so

construed and that Section 32(2) applied to a case where the Court was a Small Cause Court at the time of the institution of the suit but a Small

Cause Court with jurisdiction incompetent to try that suit and then later became a Small Cause Court with an increased jurisdiction. The order of

reference there was as to whether the transformation of certain suits into Small Cause suits was right or wrong and the Full Bench held that it was

not right. That is to say they were considering the transformation of the suits and not only am I bound by that decision but I very respectfully

entirely agree with it. It was the precursor of a series of which Kannan Nambiar v. Anantan Nambiar ILR (1905) 29 Mad. 124 : 15 M.L.J. 491

and Sambu Dhanaji v. Ram Vithu I.L.R.(1903) 28 Bom. 244 are the following cases. It is in consonance with the view taken in Venkatraman

Rama Hegde Kanni Vs. Baburaya Venkatesh Prabhu, , which in turn follows Sambu Dhanaji v. Ram Vithu I.L.R.(1903) 28 Bom. 244, which in

turn follows Hari Kamayya v. Hari Venkayya ILR (1903) 26 Mad. 212 and which decides that the character of a suit is determined at the date

when it is instituted. I do not find anything in Umacharan Sen Gupta v. Chinta Roy (1916) 36 I. C. 881 which conflicts with that. Umacharan Sen

Gupta v. Chinta Roy (1916) 36 I. C. 881 is dealing with the power of the District Judge to transfer the case to the Court of Small Causes. Section

32 (2) is not considered. What was under consideration in that case was the powers given to the District Judge by Section 24, Civil Procedure

Code.

Now I think it is desirable to observe that in Section 24 when dealing with the transfer of a case filed as a Small Cause to a Court that has

ordinary original jurisdiction Section 24(4) impresses upon the suit the character it originally had and specifically provides that the change in the

Court shall not effect a change in the suit. It was instituted in the Small Cause Court and it remains a Small Cause. It may be said that the omission

to deal with the converse case in Section 24 that is a case where a suit is filed as an original suit and then is transferred to the Small Cause Court

argues that it was not the intention of the legislature in such a case to retain for the original suit the character of original suit. But I think there is a

much better reason than that for the omission of the converse case. The CPC was passed in 1908. The converse case had been dealt with in 1887

by an unrepealed Act and is to be found in Section 32(2) of the Provincial Small Cause Courts Act.

The result of the above analysis therefore in my opinion is this. The learned District Judge had the power to transfer these cases to the Small

Cause Court but they retained their character of original suits. It is true that as a consequence the transference of them to the Small Cause Court

was idle, but I think it is better to put it in the way I have, than to say that the District Judge had no power to transfer them. He had power but the

transfer was to no purpose. They have in fact been tried as small cause suits though they should in fact have been tried as original suits, though by a

Small Cause Court.

The cases will accordingly have to be retried as original suits and they are referred to the Trial Court accordingly. It is very regrettable that these

cases have been as a consequence so greatly delayed and I direct that all the future stage shall be expedited so far as practicable certainly through

all stages in Courts subordinate to the High Court. The costs of these Civil Revision Petitions will be costs in the cause. It is not the plaintiff''s fault

that these transfers were made. They were made by the District Court of its own motion.