HAJI ZAMIRUL HASAN KHAN Vs. IMDAD ALI KHAN

JUDGEMENT

(1.) THIS is an application for revision against an order of the First Additional Subordinate Judge of Aligarh, refusing to entertain an appeal preferred by the applicant and dismissing it on the ground that no appeal lay. The facts were these:--A suit was brought in the Court of a Munsif, who had been vested with the jurisdiction of a Court of Small cases, for the recovery of damages for suiting down the branch of a tree. The suit was undoubtedly one of the nature cognizable in a Court of Small Causes and Was accordingly instituted on the Small Cause Court side of the Munsif's Court. Before the case name to trial, the Munsif proceeded on leave and was succeeded by an officer who was not vested with the powers of a Small Cause Court Judge. He tried the suit as a regular suit and made a decree for a portion of the claim. An appeal was preferred from that decree, but the Appellate Court refused to entertain the appeal and held that no appeal lay. THIS view of the lower Appellate Court is, in my opinion, erroneous. Under the provisions of Section 35 of the Provincial Small Cause Courts Act if a Court vested with the powers of a Court of Small Causes ceases to have such powers, the officer who tries the case should try it as a suit which he would ordinarily have tried. In the present case the Munsif who tried the suit had no Small Cause Court powers and, therefore, he was bound to try the suit as a regular suit instituted in the Court of a Munsif who did not possess Small Cause Court powers. In the present instance the Munsif tried the suit and, therefore, an appeal lay from his decree to the District Judge. The Appellate Court seems to have been of the opinion that the Munsif ought to have returned the plaint for presentation on the regular side of the Court. I do not agree with this view, as at the time when the Munsif proceeded to try the suit he had no jurisdiction to try it as a Small Cause Court suit, and the only way in which he could have tried it was as a regular suit, and this is what Section 35 of the Small Cause Courts Act provides. THIS case is very similar to that of Sarju Prasad v. Mahadeo Pande 29 Ind. Cas. 996 : 37 A. 450 : 13 A.L.J. 639. I agree with the ruling in that case and I hold that the District Judge had jurisdiction to entertain the appeal and the lower Appellate Court ought to have tried it on the merits. I allow the application, set aside the decree of the lower Appellate Court and remand the case to that Court with directions to try it on the merits. Costs here and hitherto will be costs in the cause.