RANI ANHAYESWARI DEBI Vs. HATU SHIEKH

JUDGEMENT

(1.) This Rule is directed against an order by which the Subordinate Judge of the Assam Valley Districts in an appeal to his Court has directed the taking by the Court of first instance an additional evidence.

(2.) It appears that the suit in question, which was one for the recovery of damages for the appropriation of a jack tree, was originally instituted in the Court of the Munsif at Goalpara, the said Munsif being invested under Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, with the jurisdiction of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts up to the value not exceeding Rs. 100. The suit was instituted on what is spoken of as the Small Cause Court side of his Court on the 1st August. When the written statement of the defendants-tenants was filed, it appeared to the learned Munsif that the case was one which involved the question of custom and title to immoveable property. He thereupon on the 14th September 1914 made the following orders: This case should be heard under the regular procedure and transferred to the Mnnsif," and his next following order is, "the case transferred to the Mnnsif." He then proceeded to take evidence under the ordinary procedure and finally made a decree in favour of the plaintiff for a sum of Rs. 10. Against that decision the tenants-defendants preferred an appeal to the Judge of the Assam Valley Districts, and that appeal finally came on for hearing before the Subordinate Judge to whom we have already referred. In his Court a preliminary objection was taken that the suijj being one of a Small Cause Court nature no appeal lay to his Court. By nis order dated the 7th December 1916 that objection was overruled by the learned Sub-ordinate Judge, who eventually on the 7th July 1917 made the order of remand or rather the direction for the taking of further evidence of which we have already made mention. The present application of the plaintiff, who is the petitioner before us, is really directed against both those orders.

(3.) The contention before us is that the learned Subordinate Judge should have held that inasmuch as the suit was one of Small Cause Court nature, he should have on that ground dismissed the appeal which had been preferred to his Court. This is the question which in this Rule we have to decide, and inasmuch as it is not and cannot be disputed that the case as instituted was one of Small Cause Court nature, the question before us really is whether the Munsif s orders of the 14th September 1914 are to be regarded as an order made (under Section 23 of the Provincial Small Causes Courts Act, and is the acceptance of a plaint presented under that section to him in his character as Munsif and, therefore, as a Court having jurisdiction to determine questions of title. Obviously the procedure which he followed was not strictly in conformity with the language of Section 23. But from the judgment of the learned Munsif we find that his order was made in the presence and at the instance of both parties. That being so, when after that order made at the instance of both parties the plaint was transferred to and accepted by the Munsif and the trial proceeded in his Court, we are of opinion that we should agree with the Subordinate Judge in holding that the order was otie in effect made under the provisions of Section 23 of the Small Causes Courts Act, and that the order was followed by the presentation of the plaint to and its acceptance by a Court having jurisdiction to determine title.