Radha Kant Missir vs Purna Chander Tripathi and Others

Fazl Ali, J.—The petitioner was the defendant in a suit instituted before the Munsif of Jamshedpur for recovery of a sum of Rs. 238-8-0. The plaintiffs'' case in that suit was that the petitioner had executed a hand-note in favour of one Purusottam Tripathi, a deceased brother of the plaintiffs on 2nd March 1924 and that the said Purushottam Tripathi being joint with the plaintiffs, they had the right to sue upon his death. The defence of the petitioner was that the money had been -repaid to the widow of Purushottam Tripathi who had been living separately from the other brothers, namely, the plaintiffs and that the plaintiffs had no right to bring a suit against the petitioner. The pleas raised by the petitioner were accepted by the trial Court and the suit was dismissed. Thereupon the plaintiffs appealed and the judgment of the trial Court was reversed and the suit was decreed.

Now, the point which is emphasised before me in revision is that the suit instituted by the plaintiffs was of the nature of a Small Cause Court suit and at the time it was tried by the Munsif of Jamshedpur ha was already invested with powers to try Small Cause Court suits up to the value of Rs. 250.

It is thus contended that u/s 16, Provincial Small Cause Courts Act, the suit could not be tried by any other Court than the Court of Small Causes and that the mere fact that the Munsif who might have tried the suit under the summary procedure chose to try it in the ordinary form will not change the character of the suit or make his decree appealable. My attention is also drawn to several decisions in which it has been held that a decree passed by a Court which is invested with Small Cause Court powers in a suit which is really of small cause nature will not be appealable and will be governed by the provisions of the Provincial Small Cause Courts Act oven though the suit is wrongly tried in the regular form: Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, ; Indra Chandra Mukherjee v. Srish Chandra Banerjee [1913] 40 Cal. 537. It is thus contended that the decree passed by the appellate Court was without jurisdiction and the decree of the Munsif should be restored.

In order to examine the contention raised in this case it would be necessary to mention a few facts which have not been hitherto mentioned. It appears that the suit out of which this application arises was instituted on 28th February 1927 at Jamshedpur. At that time there was no Munsif posted at the station but the powers of the Munsif were exercised by a Deputy Collector who was also invested with powers to try Small Cause Court suits up to the value of Rs. 50. A Munsif''s post, however, was created at this station on 19th March 1927 and on 1st April 1927 Mr. N.C. Chandra was posted as a Munsif to this place and he happened to be a Munsif invested with the power to try Small Cause Court suits up to the value of Rs. 250. The question which thus arises is whether in these circumstances, the suit should have been tried by Mr. N.C. Chandra as a money suit or as a Small Cause Court suit. It is contended by the learned advocate for the opposite party that in view of Section 32, Proincial Small Cause Court Act the Munsif acted quite regularly in trying the suit as a money suit and reliance is placed on Ugrah Singh v. Motihari Co. Ltd. [1918] 4 Pat. L.J. 13; Mahima Chandra Sirdar v. Kali Mondal 12 C.W.N. 167 ; Hari Kamayya v. Hari Venkayya [1903] 26 Mad. 212 and Bindesri v. Ganga Prasad [1920] 42 All. 195.

In view of these decisions I am unable to hold that the Munsif was in error in trying the suit in regular form and the application of the petitioner must be dismissed. It is however, contended that in a recent case of the Calcutta High Court Dhananjoy Das and Others Vs. Ram Chandra Das, , it has been suggested that the word " Court " as used in Section 32 refers to the particular officer before whom the case was originally instituted and that Section 32 would not apply to a case where the suit was instituted before an officer who was not competent to try that suit as a Small Cause Court suit and that officer was succeeded by another officer who having the power to try it summarily tried it in regular form. To me, however, it appears that this view will not be quite consistent with the decisions already referred to and at any rate the decision in the case of Ugrah Singh v. Motihari Co. Ltd. [1918] 4 Pat. 13 is opposed to it.

The application is, therefore, dismissed with costs. Hearing fee Rs. 16.