RAMASWAMI MUTHIRIAN Vs. FIRM OF KI KARU, RAMA KI REPRESENTED BY ITS MANAGING PARTNER, ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) This case raises a point of some interest, vis., whether an appeal lies in the following circumstances. A suit is filed as a small cause suit in a Court having small cause jurisdiction. Then, owing to a change in the Judge presiding over the Court, the Court temporarily loses small cause jurisdiction and the case, together with other pending small cause cases, is marked as an original suit, in order, it is said, to attract Section 35 of the Provincial Small Cause Courts Act and in order to keep in order the records of the Court. Then the Court ceases to be presided over by that Judge with limited jurisdiction and a Judge is appointed who has small cause Court powers so that the suit can be tried by him as a small cause suit, In fact, however, it is not re-numbered, it continues on the files as an original suit, and is so disposed of. Does that change its nature? Or does it remain what it began, as vis., a small cause suit. If it became an original suit, an appeal lies. If it remained a small cause suit an appeal does not lie.

(2.) Now it was urged that Section 35 of the Provincial Small Cause Courts Act operates to change in some way a small cause suit into an original suit. In my opinion, it does nothing of the sort. What Section 35 does is to invest a Court which otherwise would be incompetent to hear any, or certain, small cause suits with power to hear certain of such suits vie, those pending in that Court at the time that Court's jurisdiction is changed. This is a provision that is manifestly desirable seeing that the same judicial chair is occupied by Judges some of whom are invested with higher powers than others. The appointment of a Judge with inferior powers would in such circumstances obviously dislocate pending business unless provision were made to enable him to deal with matters pending in the Court over which he presides. This provision is made by Section 35.

(3.) But Section 35 does not purport to turn a small cause suit into an original suit with all kinds of changes in procedure and in rights of appeal. It would, in my opinion, be fantastic if the whole course of a litigation could be changed after it had been started because a Mr. A was the Judge at the time of the trial instead of the Mr. B who was the presiding Judge at the time of the filing, still more fantastic if the appellate rights were entirely changed, because although Mr. A was the Judge at the time of the filing and at the time of the trial, the case had, for office purposes, been given a new number, because in between Mr. A was away for a month and Mr. B who had not Mr. A's powers was appointed to preside for that month.