RAJA SAHEB MEHARBAN I DOSTAN SRI RAJAH RAO VENKATA KUMARA MAHIPATH SURYARAO BAHADUR GARU Vs. PURAMSETTI VENKATARAO

JUDGEMENT

(1.) The plaintiff brought this suit for compensation for water taken by the defendants from the source of the plaintiff. It was dismissed with costs. In appeal, it was urged by the defendants that no appeal lay. The plaintiff (appellant) admitted by implication that an appeal would not lie unless the suit were of the nature described in Articles 13 and 35 (i) and (it) of Schedule II to the Provincial Small Cause Courts Act. It was held by the learned Subordinate Judge that the suit was not covered by either of these articles and he consequently held that an appeal did not lie. The appeal was accordingly dismissed. In the grounds of appeal to this Court, it was again contended that Articles 13 and 35 (i) and (ii) covered a suit of this kind. In view of my decision in S. A. No. 1067 of 1937 of the 25th September, 1940, this point was not pressed; but it is now argued that although the suit was of a Small Cause nature, an appeal did lie.

(2.) The appellant's contention seems to be well founded. It was assumed in Kollipara Seetapaty V/s. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323. (F.B.), that the decision in a suit which should have been tried on the Small Cause side but which was actually tried on the Original Side of the same Court was final and that no appeal therefore lay. The point did not really fall for decision there; but that has been taken as the law ever since in cases where a Court has no jurisdiction by virtue of Section 16 of the Provincial Small Cause Courts Act to try a suit on the Original Side. Where however a suit is filed on the Original Side because, as here, the District Munsif has no jurisdiction to try it as a Small Cause suit, that suit cannot be considered to be a Small Cause suit. All that can be said is that the suit is of a Small Cause nature. There is however nothing in the Provincial Small Cause Courts Act or in the Civil Procedure Code, which says that no first appeal lies in such cases. The Provincial Small Cause Courts Act applies only to Small Cause suits, and although Section 102 of the Civil Procedure Code, is a bar to a Second Appeal, there is nothing in the Act which prohibits a First Appeal. An appeal did therefore lie in the Court below because the District Munsif had no jurisdiction to entertain the suit on the Small Cause side.

(3.) No Second Appeal lies by virtue of Section 102 of the Civil Procedure Code; so that if the appellant is to succeed, this appeal must first be converted into a revision petition and then I must exercise my discretion in his favour. He should undoubtedly have raised the point which has now been discussed both in the Court below and in the grounds of appeal here. This appeal will be converted into a revision petition, the petition allowed, and the First Appeal remanded for disposal on the merits, only if the appellant pays the costs of the respondents both in this Court and in the lower Appellate Court within three weeks of the receipt of the records in the lower Appellate Court. Otherwise, this appeal will stand dismissed with costs.