KAMALATHAMMAL Vs. HARIHARA AIYAR

JUDGEMENT

(1.) This revision petition raises a question of jurisdiction on which there has been considerable divergence of judicial opinion.

(2.) The facts may be briefly stated. The petitioner obtained an ex parte decree in Section C.S. No. 73 of 1937 on the file of the Subordinate Judge's Court of Tiruvarur. The respondent who was the first defendant in the case applied to the Court to set aside the ex parte decree which was set aside on 31 August, 1937, on certain terms which are not material for the purpose of this petition. A revision petition was filed against that order and this Court set it aside and remitted the proceeding for disposal according to law. Before, however, it could be disposed of, the Court of the Subordinate Judge of Tiruvarur was abolished with effect from 1st November, 1938, and by the District Court's proceedings dated 29 October, 1938, the application to set aside the e% parte decree was ordered to be transferred from the Subordinate Judge's Court to the District Munsif's Court, Tiruvarur, and the transfer was accordingly made by the Subordinate; Judge on 31 October, 1938. The District Munsif dealing with the application in due course, held that there was sufficient service of the summons in the suit on the respondent and there was no sufficient cause for his non-appearance on the date of the hearing of the suit and dismissed the application. It may be mentioned here that the small cause jurisdiction of the District Munsif's Court, Tiruvarur, was so limited that it could not have entertained on the small cause side the suit out of which these proceedings arose if such suit were then about to be instituted. On appeal to the District Court, that Court reversed the decision of the District Munsif and set aside the ex parte decree holding that there was no proper service of summons in the suit. This Civil Revision Petition has been preferred against that order.

(3.) The main contention for the petitioner before me was that the appeal to the lower Court was incompetent and its order purporting to set aside the ex parte decree was made1 without jurisdiction. This contention was based on two grounds: Firstly, the order of the District Court transferring the respondent's application t6 set aside the ex parte decree from the Subordinate Judge's Court of Tiruvarur where it had been pending after remand by this Court to the Court of the District Munsif of the same place must be taken to have been made under Section 24 of the Civil Procedure Code and by virtue of Sub-section (4) of that section, the District Munsif's Court must be deemed to have dealt with the application as a Court of Small Causes. Therefore, it was said, the order dismissing the application was final under Section 27 of the Provincial Small Cause Courts Act and no appeal lay against such order. Secondly and alternatively, even assuming that the District Munsif's Court dealt with the application and made the order on the original side of its jurisdiction, Order 43, Rule 1(d), Civil Procedure Code, provided an appeal against an order rejecting an application to set aside an ex parte decree only "in a case open to appeal" and the decree in this case having admittedly been made by the Subordinate Judge's Court, Tiruvarur, as a Court of Small Causes, it was not a case open to appeal within the meaning of Order 43, Rule 1(d) and no appeal was admissible. Several decisions were cited in the course of arguments on either side but before considering them, I will briefly refer to the relevant statutory provisions bearing on this question. Section 16 of the Provincial Small Cause Courts Act provides that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. Section 35(1) provides that: Where a Court of Small Causes or a Court invested with the jurisdiction of a Court of Small Causes, has from any cause ceased to have jurisdiction with respect to any case, any proceeding in relation to the case, whether before or after decree, which, if the Court had not ceased to have jurisdiction, might have been had therein, may be had in the Court which, if the suit out of which the proceeding has arisen were about to be instituted, would have jurisdiction to try the suit.