MEHAR SINGH Vs. GURAN DITTA CHAUDHRY

JUDGEMENT

(1.) THE respondent, Guran Ditta Chaudhry, instituted a suit to recover Rs. 39/ - from the applicant on June 10, 1966, in the Court of Mr. Har Narain Singh, Senior Subordinate Judge at Jullundur, who was also invested with the powers of Judge of Small Causes under the Provincial Small Cause Courts Act, l887 (Act 9 of 1887). The suit was transferred from the Court of Mr. Har Narain Singh to the Court of Mr. R.L. Garg, Subordinate Judge of the First Class, on July 12. 1966, under section 24 of the Coda of Civil Procedure, and sub -section (4) of that section says that "the Court trying any suit transferred or" withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes". So by virtue of sub -section (4) of Section 24 of the Code of Civil Procedure for purposes of the suit between the parties. Mr. R.L. Garg was a Court of Small Causes, obviously under Act 9 of 1837. On March 1, 1967, Mr. R.L. Garg was appointed Senior Subordinate Judge at Jullundur, and he relinquished the charge of the Court of Subordinate Judge First Class at Jullundur, to which Court, on the very date, was appointed Mr N.S. Bhalla, Subordinate Judge of the First Class On March 7, 1967, the case of the parties was referred to the District Judge of Jullundur, and the order of reference said. "Parties in person. The plaintiff, Guran Ditta Chaudhry, states that the case be tried by Shri R.L. Garg as it was marked to him by name by the learned District Judge, vide his order, dated 12th July, 1966. It is for orders, therefore, whether the case is to be tried here or by Shri R.L. Garg. In the latter case, the file may kindly be transferred to Shri K.L. Garg. The file to be sent. The parties to appear before the learned District Judge on 16th March, 1967." Apparently this was a reference made by Mr. M.S. Bhalla. On March 16, 1967, this is the order which the District Judge of Jullundur made on that reference. 'The report of the learned Subordinate Judge has been perused and the parties have been heard. The mere fact that Shri R.L. Garg has been transferred to another Court, even in Jullundur, is not sufficient to transfer the present case from the trial Court to that of Shri R.L. Garg. The other ground urged for the transfer of the case is that the file of the present case is required to be produced in another criminal case pending in the Court of Shri K.L. Garg This again is no ground for the transfer of the case. The case, shall, therefore, be tried by Shri N.S. Bhalla as successor to Mr. R.L. Garg. The parties have been directed to appear in that Court on 20th March, 1967 " It is apparent from this order that the District Judge refused to transfer this case between the parties from the Court of Mr. N.S. Bhalla to the Court of the Senior Subordinate Judge Mr. R.L. Garg The case was pending in the Court of Shri R.L. Garg, Subordinate Judge of the First Class, and when he vacated that Court to take charge of the Court of the Senior Subordinate Judge at Jullundur, his place was taken by Mr. N.S. Bhalla, Subordinate Judge or the First Class. The case remained pending in the very Court although the Presiding Officer changed. When an effort was made to have the case transferred from that Court to the Court of the Senior Subordinate Judge (Mr. R.L. Garg), the District Judge refused to do so. Subsequently this case was transferred on May 10, 1967, from the Court of Mr. N.S. Bhalla, Subordinate Judge of the First Class, to the Court of Mr. D.B. Gupta, Subordinate Judge of the First Class at Jullundur. It is the last named officer, as Subordinate Judge of the First Class, who passed a decree in the suit of the respondent against the applicant on June 5, 1967. Against the decree the applicant preferred an appeal to the District Judge of Jullundur' who by his order of February 27. 1938, dismissed the appeal as incompetent. The ground given by the District Judge is that the decree passed by Mr. D.B. Gupta, Subordinate Judge of the First Class, is a decree of a Court of Small Causes, against which decree no appeal is competent. It cannot be denied that if the decree passed by Mr. D.B. Gupta, Subordinate Judge of the First Class. In the suit between the parties is that of an ordinary Court of a Subordinate Judge, and not that of a Court of Small Causes the appeal was competent to the District judge and his order cannot possibly be sustained.

(2.) THERE is no difficulty whatsoever when the case between the parties was transferred from the Court of Mr. Har Narain Singh, Senior Subordinate Judge, under section 24 of the Code of Civil Procedure to the Court of Mr. R.L. Garg, Subordinate Judge of the First Class. The reason is that immediately the provisions of sub -section (4) of section 24 of the Code are attracted, and the Court of Mr. R.L. Garg is then deemed to be the Court of Small Causes. The difficulty arises at the next step; when Mr. R.L. Garg relinquished the charge of the Court of the Subordinate Judge First Class, and went over to take charge of the Court of Senior Subordinate Judge, the case remained pending in the Court of which Mr. R.L. Garg had relinquished charge. His place in that Court was taken by Mr. N.S. Bhaila, Subordinate Judge of the First Class. Neither Mr. R.L. Garg nor Mr. N.S. Bhalla had by then been invested with the powers of a Judge of a Court of Small Causes under Act 9 of 1887. The District Judge, as has been explained above, refused to transfer the case as pending in the Court of Mr. N.S. Bhalla to the Court of Mr. K.L. Garg. What is contended by the respondent is that the meaning of the order of March 16, 1967, of the District Judge is to transfer this particular case from the Court of Mr. R.L. Garg to the Court of Mr. N.S. Bhaila. This is obviously and patently wrong because the converse is what the order of the District Judge says. What was urged before him was that the case be transferred to the Court of Mr. R.L. Garg after he had taken charge of the Court of Senior Subordinate Judge at Jullundur, and this the District Judge refused to do. So when Mr. N.S. Bhaila as Subordinate Judge of the First Class took over the file in the Court of the Subordinate Judge First Class of which he took charge, he also took over this case between the parties. There was no transfer of this case to his Court by any order under section 24 of the Code of Civil Procedure, while Mr. R.L. Garge to whose Court this case had been transferred under section 24 of the Code was deemed to be a Court of Small Causes by virtue of sub -section (4) of section 24 of the Code, as there was no transfer of the case' under section 24 to the Court of Mr. N.S. Bhaila, so no question of application of sub -section (4) of section 24 of the Code could possibly arise in his case. He took charge of the Court of the Subordinate Judge First Class, and in that Court this case was pending, and continued to be pending as is clear from the District Judge's order of March 16, 1967, when he refused to transfer this case from his Court to the Senior Subordinate Judge Mr. R.L. Garg. Section 24, sub -section (4) of the Code not applying at that stage to this case the question arises obviously in what capacity or rather in what jurisdiction was Mr. N.S. Bhalla, Subordinate Judge of the First Class, trying this particular case ? He could not have been trying this case as a Court of Small Causes under Act 9 of 1887 because under that Act he was not invested with the powers of a Court of Small Causes, and be could not be deemed to be a Court of Small Causes under sub -section (4) of section 24 of the Code because there was no transfer of this case to his Court under section 24 of the Code. He could, in the circumstances only try this case as an ordinary Civil Court that of a Subordinate Judge of the First Class. To a case like this applies section 35 of Act 9 of 1887, according, to which when a case that was being tried by a Court of Small causes comes to a Court not having powers of a Court of Small Causes either under Act 9 of 1887, or by reason of sub -section (4) of section 24 of the Code, then that Court has jurisdiction to try the suit as if the suit out of which the proceedings have arisen were about to be instituted in that Court. Now on the date Mr. R.L. Garg relinquished charge of the court of the Subordinate Judge First Class at Jullundur, when he was trying this suit because of sub -section (4) of section 24 of the Code of Civil Procedure of a Court of Small Causes, and his place was taken over by Mr. N.S. Bhalla, Subordinate Judge First Class, on March 1, 1967, if the suit had been instituted on that day, it was the Court of Mr. N.S. Bhalla that would have bad jurisdiction to try and try it not as a suit treble by a Court of Small Causes because he had not any such powers, but as an ordinary Civil Court of a Subordinate Judge of the First Class. Again after that there is no difficulty. From the Court of Mr. N.S. Bhalla the case was transferred to the Court of Mr. D.B. Gupta, Subordinate Judge of the First Class, under section 24 of the Code on May 10, 1967. If Mr. N.S. Bhalla was trying this suit either as a Court of Small Causes invested with powers to that effect under Act 9 of 1887 or deemed as a Court of Small Causes by virtue of sub -section (4) of section 24 of the Code, then the transfer of this case to Mr. D.B. Gupta's Court would have attracted sub -section (4) of section 24 of the Code, but as Mr. N.S. Bhalla was not seized of the case as a Court of Small Causes in either circumstance, and he was seized of it as an ordinary Civil Court of the Subordinate Judge of First Class, the transfer from his Court to the Court of Mr. D.B. Gupta under section 24 was a transfer from a Court of the Subordinate Judge of the First Class to another Court of the Subordinate Judge of the First Class over which Mr. D.B. Gupta, presided. So when Mr. D.B. Gupta made the decree in the case, he did not make that decree as a Court of Small Causes, he did so as an ordinary Civil Court of a Subordinate Judge of the First Class. The mistake that the learned District Judge in appeal has made is to ignore the fact that when the file in the Court of the Subordinate Judge First Class at Jullundur was taken over by Mr. N.S. Bhalla with this case among the file, after Mr. R.L. Garg had relinquished charge of that Court, the case was in the jurisdiction of Mr. N.S. Bhalla as a Court of Small Causes, and not as an ordinary Civil Court of the Subordinate Judge of the First Class. It is this mistake which has led to the conclusion which the learned District Judge has reached and if this mistake was correct, his order would be un -exceptional. But this is not correct and his order cannot be maintained.