PITAMBER SHIVLAL Vs. PATEL HARGOVANBHAI AMTHABHAI

JUDGEMENT

(1.) The petitioner herein is the original plaintiff and the opponent is the original defendant. The suit out of which this Revision Application arises was filed originally in the Court of the Civil Judge S. D. Mehsana; and it was filed as a Small Cause Suit. By an order of the learned District Judge dated December 6 1965 this particular Small Cause Suit along with several other Small Cause Suits was transferred from the file of the Civil Judge S. D. to the file of the Second Joint Civil Judge J. D. Mehsana. The second Joint Civil Judge J. D. thereafter heard the case and feeling that as he himself had no small cause powers the case should be tried as a Regular Suit he heard it in the regular manner like a Regular Suit and not under the special procedure prescribed for small cause suits. The learned trial Judge dismissed the plaintiffs suit and against that decision there was an appeal to the District Court. The appeal was disposed of by the learned Assistant Judge Mehsana and the learned Judge in the lower Appellate Court held that no appeal lay because of the different provisions of law and particularity in the light of the provisions of sec. 27 of the Provincial Small Cause Courts Act and sec. 24(4) C. P. C. and he therefore dismissed the appeal as it was not maintainable under sec. 36 C.P C. There after the present Revision Application has been filed against the order dismissing the appeal. I may also point out that the Revision Application has been filed alternatively i.e. in the first instance it is under sec. 115 C.P.C. against the order of the learned Assistant Judge dismissing the appeal and in the alternative it has been prayed that this Civil Revision Application may be treated as one under sec. 25 of the Provincial Small Cause Courts Act.

(2.) Mr. Zaveri on behalf of the petitioner has contended that the words:- a Court of Small Causes in sec. 24(4) C.P.C. refer to Court of Small Causes constituted under the Provincial Small Cause Courts Act 1887 and not to a Court exercising the jurisdiction of a Court of Small Causes under the said Act. Sec. 24 C.P.C. enables the District Court of its own motion even without giving notice to the parties or hearing the parties to transfer any suit pending in any Court subordinate to it to another Court subordinate to it. Sub-sec. (4) of sec. 24 provides :-

(3.) It appears that there has been a considerable controversy and there have been several decisions as to the exact scope of sec. 24(4) C.P.C and to the meaning of the words withdrawn from a Court of Small Causes occurring in sec. 24(4). Under sec. 4 of the Act unless there is something repugnant in The subject or context Court of Small Causes means a Court of Small Causes constituted under the Act and includes any person exercising jurisdiction under the Act in any such Court. Apart from the Court 4f Small Causes constituted under the Act that Act also envisages Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes and sec. 33 deals with application of certain provisions of the Provincial Small Cause Courts Act to Courts invested with jurisdiction of a Court of Small Causes. Thus a distinction between a Court constituted under the Provincial Small Cause Courts Act and a Court invested with the jurisdiction of a Court of Small Causes is maintained in the Provincial Small Cause Courts Act. That distinction is reflected in sec. 7 of the Civil Procedure Code which provides :-