SUBRAMANIA AIYAR Vs. NAMASIVAYA ASARI

JUDGEMENT

(1.) A preliminary objection has been taken by Mr. Purushotam Aiyar to the maintainability of the second appeal, and we are of opinion that the objection should prevail.

(2.) The suit was for Rs. 50 and odd for cutting and carrying away trees. It was originally instituted in the Small Cause side of the Tanjore Subordinate Judge s Court. As a question of title was involved in the determination of the claim, the plaint was returned for presentation to the District Munsiff s Court at Pattukottai, The suit was tried by that Court and an appeal was heard therefrom by the District Judge. This second appeal is against the decree of the District Judge.

(3.) The suit as originally filed was not exempted from the jurisdiction of the Small Cause Court. An amending Act was passed in 1914 by which a new Clause (ii) was added to Article 35 of the second schedule of the Provincial Small Cause Courts Act. Under this new clause if the suit were to be filed now, there can be no question that the Small Cause Court will have no jurisdiction to try it. The point for determination is whether this amendment affects the operation of Section 102 of the Code of Civil Procedure. Under that section no second appeal lies in any suit of the nature cognizable by the Small Cause Courts, if the value of the subject- matter does not exceed Rs. 500. In the present case all the disqualifying conditions are present. Mr. Raja Aiyar contended that the nature of the suit must be considered with reference to the date on which the second appeal is presented and not with reference to the date on which suit was filed; and as the amending Act was passed in 1914, before the second appeal was filed, the character of the suit has changed so as to admit of a second appeal being presented. This ingenious argument ignores the consideration that the appeal is against the decree which has been passed in the suit as originally filed. That decree was in a suit of the nature cognizable by the Small Cause Courts. The word cognizable must be restricted to the nature of the proceeding prior to decree and not to its character at the time of the second appeal.