KALYANJI (NOW DEAD) Vs. RAM DEEN LALA

JUDGEMENT

(1.) This is an appeal against an order of the Chief Judge of the Court of Small Causes, Madras, under Section 476 of the Criminal Procedure Code, directing that a complaint under Secs.193 and 196 of the Indian Penal Code be filed against the appellants. Mr. Menon for the Crown Prosecutor raised two preliminary objections, first, that the appellate tribunal in a case like the present is not the High Court but a Bench of the Court of Small Causes, and secondly, that if the appellate tribunal is the High Court, the appeal must be put in on the Original Side of the High Court.

(2.) As to the first objection, an appellate tribunal is, by force of Secs.476-B and 195 (3) of the Criminal Procedure Code, the Court, if there is such a Court, to which appeals from the appealable decrees of the Court of Small Causes ordinarily lie. Mr. Menon relies on Section 38 of the Presidency Small Cause Courts Act, which states that in the case of a contested suit, either party has the right to apply for an order for a new trial or for altering, setting aside, or reversing the decree. Section 38 does not talk of an appeal, but the heading of the chapter is "New Trials and Appeals." The rules of procedure governing an application under Section 38 are contained in Order 41 of the Provincial Small Cause Court Rules headed "Application for a New Trial," and it is to be in Form No. 15 described as an "Application for a New Trial." Order 41 throughout speaks of an application, not of an appeal. We also understand that no stamp is levied on such applications. No doubt rules of procedure could not take away a right of appeal given by statute; but the rules are an indication that the High Court which framed them did not consider that the right conferred by Section 38 was a right of appeal. There is no direct authority of the Madras High Court on this point, unless the case in Srinivasa Charlu V/s. Balaji Rao (1896) ILR 21 M 232 be taken as such; but, with due respect to the learned Judges who decided that case, I do not think that Section 37 settles the question whether there is or is not an appeal, since Section 37 itself on its own wording is subject to the other provisions of that chapter. It is not necessary, however, in the view I take, to press this point further. I agree with the judgment in In re, Shivlal Padma (1909) ILR 34 B 316, a case directly in point, that Section 37 implies that decrees of the Presidency Small Cause Court are not ordinarily appealable. The Bench in that case held that that was a sufficient ground for holding that there was no Court to which in the language of Section 195 of the Criminal P. C. as it then was, "appeals, ordinarily lie." The amended Section 195 now uses the phrase, "The Court to which appeals ordinarily lie from the appealable decrees...of such former Court," which would imply that, although ordinarily there is no appeal, yet, if there are decrees of the Court which are appealable, then an appeal against an order under Section 476-B will lie to the Court to which appeals from such appealable decrees ordinarily lie. So that the real question now is not whether there is any ordinary right of appeal from the decrees of the Presidency Small Cause Court, but whether any of these decrees passed by that Court are appealable decrees. This question has to be decided not under Section 37 of the Act but under Section 38, and I am constrained to hold that Section 38 does not give what is usually known as a right of appeal. Had this been meant, it would have been laid down in unambiguous languages such as Section 96 of the Civil Procedure Code employs, "an appeal shall lie." Section 38 also makes no provision for a higher Court, for example, a Bench of the Small Cause Court, to hear an appeal; and does not talk, for example, as Section 96 of the Civil Procedure Code does, of the "Court authorised to hear appeals. "An application under Section 38 is to the same Court which passed the decree, and, 111 so far as appears from the section, it may be even to the same judge who passed the decree, and there is no statutory provision elsewhere constituting a Court of Appeal to hear such applications. I therefore hold that Section 38 does not imply that any decree of the Presidency Small Cause Court is an appealable decree. It follows that there is no Court to which appeals ordinarily lie from the appealable decrees of that Court.

(3.) The second preliminary objection then has to be met. Since there is no Court to which appeals ordinarily lie from appealable decrees of the Presidency Small Cause Court, an appeal has to be put in to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction the Presidency Small Cause Court is situated. Mr. Menon contends that this phrase can apply only to the Original Side of the High Court : Under the unamended Code, there was a clear authority, Jamnadas V/s. Sabapathi Chetti (1911) ILR 36 M 138 : 21 MLJ 1074 that the Original Side of the High Court was not a different Court for purposes of this section from the rest of the High Court, and that the High Court generally was the principal Court of Original Jurisdiction. I cannot see that the alteration of language in the section displaces this ruling. The High Court generally is still the principal Court having Ordinary Original Civil Jurisdiction. Mr. Menon. however, calls our attention to a ruling in Munuswami Mudaliar V/s. Rajarathnam Pillai (1922) ILR 45 M 928 : 43 MLJ 575 (FB) in which it was held that an appeal from an order under Section 195 by a Judge sitting on the Original Side of the High Court lies to a Bench of the High Court and argues from that and from the language of Section 195 (3) that, therefore, these two tribunals must be different Courts. I do not think that that follows. Munuswami Mudaliar V/s. Rajarathnam Pillai (1922) ILR 45 M 928 : 43 MLJ 575 (FB) may be pressed so far as to say that under the first portion of Section 195 (3), when an order by the Original Side of the High Court is in question, the term "Court" may be taken to mean "Side of the High Court "; but Munuswami Mudaliar V/s. Rajarathnam Pillai (1922) ILR 45 M 928 : 43 MLJ 575 (FB) has not reversed Jamnadas V/s. Sabapathi Chetti (1911) ILR 36 M 138 : 21 MLJ 1074 nor under the second part of Section 195 (3) can the word "Court" be made to mean "Side of the High Court." The difficulties that would follow in holding that the High Court is not one Court but is as many Courts as there are varieties of Original and Appellate Jurisdictions comprised in it are much greater than the difficulty of reconciling the language of Section 195 (3) with Munuswami Mudaliar V/s. Rajarathnam Pillai (1922) ILR 45 M 928 : 43 MLJ 575 (FB). I am not prepared to sustain either of these preliminary objections and they both fail.