MOHESH CHANDRA MALI Vs. GANGAMAYEE MAZUMDAR

JUDGEMENT

(1.) This Rule has been obtained by the defendants against an order of the learned Additional District Judge of Mymensingh dated 31 July 1934 and also against the judgment and decree of the Subordinate Judge of that place passed in Money Appeal No. 210 of 1934. The point taken by the petitioners is that no appeal lay to the Court of the learned District Judge against the judgment and decree passed by Mr. J.P. Sen dated 30 April 1934. On considering the arguments advanced by the respective Advocates I am of opinion that the position taken by the petitioners is sound.

(2.) The relevant facts are these. The plaintiff opposite party instituted a suit for recovery of a sum of Rs. 145 said to be due to him from the defendants. At the time when the plaint was filed, there was a Munsif at Kishoreganj having Small Cause Court powers up to the sum Rs. 150. The suit was accordingly filed as a Small Cause Court suit and was numbered Small Cause Court Suit No. 2368 of 1933 and it was registered as a Small Cause Court suit. Subsequently, the officer before whom the suit was filed was transferred to another place and was succeeded by Mr. J.P. Sen who had powers to try Small Cause Court suits up to the value of Rs. 100 only. As there was no Court of Small Causes at Kishoreganj then having jurisdiction to try suits of Small Cause Court nature, the value whereof exceeded Rs. 100 under the provisions of Section 35, Provincial Small Cause Courts Act, the Small Cause Court suit which I have mentioned above was transferred to the Court of Mr. J.P. Sen. If nothing further had occurred, Mr. J.P. Sen would have tried the suit in his ordinary file as a munsif and his decree would have been an appealable one. But certain other events occurred. They are, that before the hearing commenced, Mr. J.P. Sen was invested with the powers of a Small Cause Court Judge to try suits up to the value of Rs. 150. At the date of the trial and at the date of the judgment, he had the powers to try this particular suit, which was originally instituted as a Small Cause Court suit, as a Small Cause Court suit. He gave effect to the pleas taken by the defendants and dismissed the suit. The plaintiff made an application to the learned District Judge for a reference to the High Court and in the said application he stated as he must state that the decree passed by Mr. J.P. Sen was not an appealable decree. The Additional District Judge before whom this application came on for hearing however was of opinion that an appeal lay before him and he converted the application for reference into a memorandum of appeal and transferred the case to be decided on the merits to the Court of the Subordinate Judge of Mymensingh. The learned Subordinate Judge went into the merits of the ease, reversed the finding of Mr. J.P. Sen and came to the conclusion that the plaintiff's claim was a valid claim and not barred by limitation. A decree was accordingly made by the said Subordinate Judge.

(3.) As I have already stated, the jurisdiction of the District Judge is questioned on the ground that the decision of Mr. J.P. Sen was a final decision not open to challenge by way of appeal. For the purpose of deciding this question some of the provisions of the Provincial Small Cause Courts Act has to be noticed. Section 32, Sub-section (1) says that if a suit is tried by a Court invested with the powers of a Small Cause Court, the decision must be taken to be the decision of a Small Cause Court and the decree passed would be a final decree not subject to any appeal or revision save as provided for in the Provincial Small Cause Courts Act. Sub- section 2 of the said Section then provides Nothing in Sub-section (1) with respect to Courts invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceedings commenced in those Courts before the date on which they were invested with that jurisdiction.