N C GANAPATHI CHETTIAR Vs. SETH CHUNILAL

JUDGEMENT

(1.) This petition raises an interesting question of law viz., whether when a Presidency Court of Small Causes orders a plaint to be returned for presentation to the proper Court having jurisdiction, the order in question will amount to an order entitling the party for a new trial under Section 38 of the Presidency Small Cause Courts Act.

(2.) The facts are briefly these. The petitioner, Ganapatti Chettiar, a merchant of Erode, had filed S. C. S. No. 2627 of 1948 in the Court of Small Causes at Madras for refund of an advance of Rs. 400 paid by his son, on his behalf, to one Seth Chunilal aunerchant or commission agent at Agra, for purchase of pulses, under a contract Ex. D. 1, dated 2-3-1948, on the ground that the pulses supplied were of inferior quality arid he had repudiated the contract. The learned Judge of the Court of Small Causes, after hearing both sides, and discussing many contentions and issues, finally passed an order, on issue 3, returning the plaint for presentation to the proper Court, viz., the Court at Agra, holding that his Court had no jurisdiction to try this suit, as no part of the cause of action had arisen here. Against this, the petitioner filed N. T. Application No. 43 of 1948. The Chief Judge and another Judge of the Court of Small Causes heard the application, and on a preliminary point taken by the defendant before them, held that the petition would not lie under Section 38 as it was conceded before them that the order of the Small Cause Court would not amount to a "decree", and as they considered that it would not also be an "order", relying on the rulings in 'Chinnathambi Mudaliar v. Veerabadriah Naidu', 26 Mad 163, and 'Haji Mohamed Deen v. ALLEN', ILK, (1938) 2 Cal 637. So they dismissed the N. T. Application. Hence, the civil revision petition.

(3.) Mr. Ganapathi, for the petitioner, urges that the Full Bench of the Court of Small Causes erred in their view in holding that the order of the Small Cause Judge would not be an "order", under Section 38 within the meaning of the Calcutta ruling quoted by them, though it might not be a "decree". 'He urges that the order in question was an order which in some way or other "disposed of the suit" and so would come within the meaning given to the word "order" in the Calcutta ruling, as the order of the Small Cause Judge had "disposed of the suit" so far as his Court was concerned, by taking it off his file. The learned counsel for the petitioner admitted that the ruling in 'Chinnathambi Mudaliar v. Veerabadriah Naidu', 26 Mad 163, was against him, and that that ruling bluntly says that the word "order" in Section 38 means "an order which has the effect of a decree", and that he was unable to quote before me a single ruling of this Court, in all the 100 years of the existence of the Presidency Small Cause Court, Madras, where an order of a Presidency Small Cause Court Judge returning a plaint has been held to be an "order" within the meaning of Section 38 or of the corresponding section which existed before the present Presidency. Small Causes Act. The fact that the learned counsel for the respondent could not give a second ruling to the contrary (besides that in 26 Mad 163) is, no doubt true, but is not so significant. Where a right does not exist, we will not find a ruling in favour of it and we will find only a ruling; or two the other way. Thus, a search in the Law Reports for a ruling giving a casual concubine a right of maintenance against her paraniour will prove in vain, and there will be only a ruling or two the other way, it being so obvious. The only ruling of this Court on the point involved in this case is the ruling in 'Chinnathambi Mudaliar v. Veerabadriah Naidu', 26 Mad 163, which is directly against the petitioner as even he admits that the order of the Small Cause Court Judge is not a decree and has not the effect of a decree. Merely returning a plaint for presentation to another Court will, in my opinion, also not be "disposing of the suit", within the meaning of the ruling in 'Haji Mahomed Deen v. Allen', ILR (1938) 2 Cal 637, any more than removing a library from downstairs to upstairs of the same building, or to an adjacent building, will be "disposing of" the library. Only when the merits of the suit claim are gone into and an order passed can the order come within the meaning of the word "order" in Section 38. Surely, the phrase "new trial" itself implies an old trial and disposal on merits.