GANPAT LAXMAN Vs. NATHU

JUDGEMENT

(1.) THIS is a reference by the Additional District Judge, Amraoti, to this Court Under Order 46, Rule 7, Civil P.C., on an application made by an appellant whose appeal was dismissed. The facts are as follows: The applicant Ganpat brought a suit for damages in the Court of the Subordinate Judge, Second Class, Amraoti. His suit was dismissed and he then preferred an appeal to the Additional District Judge. The Additional District Judge held that the suit was one that was cognizable by a Court of Small Causes, that the appeal was therefore incompetent and that a reference could be made to this Court Under Order 46, Rule 7. He therefore referred the case. The case is similar to that reported in Kamruddin v. Mt. Indrani AIR 1924 Nag 17 with the difference that the objection to jurisdiction in the present case appears to have been in the lower appellate Court, whereas in the reported case it was not made until an application for revision was made to this Court. The principle governing the matter however will, I think, be the same; and in this case also the case, although triable by a Small Cause Court, was tried by the Sub-Judge, Second Class, under the ordinary procedure without any objection being made by either party. In the circumstances I do not think that the case should have been referred to this Court Under Order 46, Rule 7; and I would refer to the decision in Ram Lal v. Kabul Singh (1903) 25 All 135, which has been followed in Kamruddin v. Mt. Indrani AIR 1924 Nag 17.

(2.) IT remains then to be considered whether the view of the lower appellate Court was right that the appeal was incompetent. The Additional District Judge has cited Minakshi v. Subramanya (1888) 11 Mad 26, Abdul Majid v. Bedyadhar Saran Das AIR 1917 All 159 and Seethapathy v. Subbayya (1910) 33 Mad 323. Of these the first is a decision not in point, as it only lays down that the parties cannot by consent confer jurisdiction upon a Court which it does not possess. The other two cases may be distinguished, because it appears that in both of them the Munsif, who tried the case according to the ordinary procedure, was invested with Small Cause Court powers, whereas in the present case it has been admitted that the Sub-Judge, Second Class, who tried the present suit was not invested with Small Cause Court powers, though there was another Judge in the station invested with such powers. This matter has been considered in Kamruddin v. Mt. Indrani AIR 1924 Nag 17, and I would respectfully agree with the reasoning stated therein. In Pitamber Vajirshet v. Dhondu Navlapa (1888) 12 Bom 486, Shankarbhai v. Somabhai (1901) 25 Bom 417 and Narayan Ravji v. Gangaram Ratanchand (1909) 33 Bom 664 it was held that, where a suit was wrongly tried as a regular suit by a Judge who was invested with Small Cause Court powers, it must be considered to have been tried as a Small Cause suit and that therefore no appeal would lie.