MT MUNIRAN Vs. ALI HUSAIN

JUDGEMENT

(1.) This is an application for revision under Section 115 Civil P.C., and is directed against an order passed by the learned Subordinate Judge of Shahjahanpur. The applicant, in this Court was the plaintiff in a suit for recovery of Rs. 152-8-0, instituted in the Court of the Munsif, who had jurisdiction of a Court of small causes upto Rupees 200. It is not disputed that the suit was cognizable by the Munsif on the Small Cause Court side of his jurisdiction Before any proceedings could be taken, the suit was transferred to a Bench of Honorary Munsifs, where it remained pending untill on the application of the defendant, the District Judge transferred it to the Court of the Additional Munsif, Shahjehanpur, who had no jurisdiction to try cases under the Provincial Small Cause Courts Act. The Munsif tried the suit on the merits and dismissed it. The plaintiff appealed from the Mundif's decree to the Court of the District Judge, Shahjehanpur, who held that no appeal lay, as the Munsif should be deemed to have decided the case as a Judge, Small Cause Court. This view purports to be based on Section 24(4), Civil P.C. The Subordinate Judge dismissed the appeal, holding that none had lain to him. The present application for revision is directed against the decree of the Subordinate Judge dismissing the plaintiff's appeal to his Court. The reasons on which the judgment of the Subordinate Judge proceeds are somewhat involved; but his view seems to be that the suit, throughout its progress, retained its character as a suit of Small Cause Court nature, that even when it was pending in the Court of the Bench of Honorary Munsifs it was a suit of a Small Cause Court nature with the only difference that the losing party had a right of appeal under the Honorary Munsifs Act (Local) No. 2 of 1896, and that the Additional Munsif, who was not subject to the Honorary Munsifs Act, had power to try it as a Judge, Small Cause Court though he had otherwise no jurisdiction under the Provincial Small Cause Courts Act. The Judge has referred to Section 24(4). C.P.C., as being applicable to the circumstances of this case. In my opinion the ground on which the Judge has based his judgment is erroneous. It is true that the Court in which the suit was originally instituted had jurisdiction to try it as a Small Cause Court.

(2.) It is equally true that, if the suit had been transferred on the application of one of the parties to it to another Court other than that of Honorary Munsifs, such Court, would have had jurisdiction to try it as a Small Cause Court, even though it otherwise had no jurisdiction under the Provincial Small Cause Courts Act. But when the suit was transferred to the Bench of Honorary Munsifs, it became subject to the provisions of the Honorary Munsifs Act (Local), No. 2 of 1896. The proviso to Section 8 of that Act expressly excludes the application of Section 24(4), Civil P.C. It should be noted that the reference in the proviso is to Section 25 of Act 14 of 1882 which corresponds to Section 24 of Act 5 of 1908. The proviso clearly provides that Section 24. Civil P.C. shall not be deemed applicable to cases transferred from Courts of Small Causes to those of the Honorary Munsifs, who are to exercise jurisdiction under Act 2 of 1896 (Local). The learned Subordinate Judge has over-looked the proviso to Section 8, otherwise he could not have maintained that the suit, when transferred to the Court of the Bench of Honorary Munsifs, retained its character as a suit of the Small Cause Court nature with the difference that the decree of the Honorary Munsdfs was appealable. As already stated, the application of Section 24(4) is completely excluded by the proviso to Section 8. But for Section 24(4), Civil P.C., a Court, to which a suit of the Small Cause Court nature is transferred can try it within the limits of its own jurisdiction, and not as a Court of Small Causes, if it has no power under the Provincial Small Cause Courts Act. Outside Section 24(4) there is no rule of law which justifies the view that the Court to which a suit is transferred has all the powers of the Court in which it was originally instituted. It follows that it is not correct to say that "The suit retained its character as a Small Cause Court suit" while it, was pending in the Court of the Honorary Munsifs.

(3.) When the suit was transferred from the Court of the Bench of Honorary Munsifs to that of the Additional Munsif. the latter cannot acquire the jurisdiction of the Court of Small Causes in respect of this suit by virtue of Section 24(4), which does not in terms apply, the transfer not being from a Court of Small Causes. The Additional Munsif of Shahjahanpuir, could therefore try the suit only within the limits of his own jurisdiction, and not within the jurisdiction supposed to have been delegated to him. In my opinion, the decree passed by the Additional Munsif in this suit was as much open to appeal as any other decree passed by him in any suit of a like description instituted in his Court. Accordingly I hold that the plaintiff's appeal to the Court of the Subordinate Judge was competent and that he should have disposed it of on the merits. The application for revision is allowed with costs, the decree of the Subordinate Judge is set aside and the case is remanded to his Court with the direction that the plaintiff's appeal be disposed of on the merits.