King, J - (1.)THIS is a petition filed by the first defendant in O S. No. 228 of 1936 on the file of the District Munsiff of Bapatla. That suit was filed at a time when the District Munsiff of Bapatla had small cause powers extending only to Rs. 100 and as the plaintiff's claim was for more than that sum it was filed as an original suit. When it came to be tried, however, in 1939, the Judge then presiding over the Court had powers up to Rs. 300. He appears however to have treated the case as an original suit and gave a decree for the plaintiff. Against this decree the first defendant appealed to the learned Subordinate Judge of Bapatla. A preliminary objection was raised by the plaintiff that no appeal lay on the ground that the suit was one of a small cause nature. The learned Subordinate Judge upheld this preliminary objection, relying upon a Full Bench decision, Kollipara Seethapathy V/s. Kantipati Subbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323 (F.B.) and dismissed the appeal. It is against this order dismissing the appeal as not competent that the present petition has been filed.
(2.)IT is quite clear that the facts in Kollipara Seethapathy V/s. Kantipati Sybbayya (1909) 20 M.L.J. 718 : I.L.R. 33 Mad. 323 (F.B.) are different from the facts before me. That was a case in which it was agreed by both sides that the suit was a small cause suit from the moment of its institution. In the present case it is clear that when instituted the suit was an ordinary original suit. In support of the petition I have been referred to the decision of Pollock, J., reported in Dasnilala V/s. Narayan I.L.R. (1937) Nag. 401. He holds in that decision that if a suit is filed as an original suit it must remain an original suit even though the Court before which it was filed may acquire small cause powers or may transfer it to another Court with extended small cause powers. Reference is made by the learned Judge to Section 32 (2) of the Provincial Small Cause Courts Act. That section gives no room for ambiguity on this point. IT is quite clear that a suit which is filed as an original suit must remain so until it is concluded, and that once a suit has been filed as an original suit the party against whom the decree is passed must retain a right of appeal. The decree of the learned Subordinate Judge is therefore set aside and the appeal before him restored to file, and he is directed to hear and dispose of it in accordance with law and the observations in this judgment. The first respondent must pay the petitioner's costs of this petition.