KACHIKIDAMBI SRINIVASA VARADACHARIAR Vs. SRI MANAVALA MAHAMUNIGAL TEMPLE AT THIRUVAHEENDRAPURAM, BY ITS TRUSTEE, P.V. JAYARAMULU NAIDU

JUDGEMENT

(1.) THE petitioner was the plaintiff in O.S. No. 331 of 1941, in the Court of the District Munsiff of Cuddalore. He brought the suit to recover money from a temple of which he had been the trustee and a decree was passed in his favour by the District Munsiff for a sum of Rs. 177 -1 -7. On appeal, however, the decree amount was reduced from Rs. 177 -1 -7 to Rs. 3 -6 -7 by the Additional Subordinate Judge of Cuddalore. The suit was decided on questions of fact, but it is argued for the petitioner that he is entitled to maintain a revision petition because the suit which was tried by the District Munsiff as an original suit was in fact a small cause suit so that no appeal lay against the decree of the District Munsiff to the Additional Subordinate Judge.

(2.) IT has no doubt been held in several cases that, if a small cause suit is tried as an original suit and then on the basis that it was an original suit an appeal is preferred, an application to set aside the appellate decree will be entertained in revision, as the appellate decree was without jurisdiction. The cases cited however so far as I have been able to see, are all cases in which a small cause suit has been tried as an original suit purely by mistake because it was wrongly numbered as an original suit, e.g., Arunagiri Goundan v. : AIR1941Mad867 or has been tried as an original suit because the Judge made a mistake of fact in regard to the extent of his powers to try small cause suits. Vide Veeran Kutti Avaru v. Joosuf Haji Jaffer Sait, (1926) 52 M.L.J. 316. The present case seems to me to be quite distinct from cases of this type because in the present case the parties joined issue in the trial Court as to whether the suit should be tried as an original suit or a small cause suit and the District Munsiff found that it should be tried as an original suit. Whether he is right or wrong is not now a relevant question, but it may be mentioned that his decision was not without any grounds, as the liability of the temple properties was in question. However that may be, there was an appeal from the decision of the District Munsiff by the plaintiff -an appeal will certainly lie until the District Munsiff's finding that the suit was an original suit has been set aside -and in the appeal itself no question of jurisdiction was raised at all. In these circumstances it does not seem to me that it is open to the petitioner to contend that the appellate decree was without jurisdiction on the ground that the suit should have been tried as a small cause suit. That point was considered by the District Munsiff and, as the petitioner did not take proper steps to have the District Munsiff's decision set aside, he must be assumed to have been right. There is no reason why the petitioner at this stage should be entitled in a petition by way of revision to have the question whether he was right or wrong, considered.