J MANICKA CHETTIAR Vs. KUPPUSWAMI NAICKER

JUDGEMENT

(1.) These are summonses to transfer ejectment applications pending in the Court of Small Causes to the file of the City Civil Court in order that they should be tried along with O. S. Nos. 16 and 17 of 1926 respectively and to empower the City Civil Judge to try the cases as Small Cause suits. That matter was put up before me for argument, because several such applications have been put before me as Chief Justice and I was told that I alone had the power to order such transfers. I have now ascertained that this view rested on the idea that the matter was governed by Section 5 (2) of the Madras City Civil Court Act 7 of 1892. That section enacts that a Judge of the City Court shall be, by virtue of his office, a Judge of the Small Cause Court with respect to cases cognizable by that Court and that every such Judge shall be liable to perform any duties of a Judge of the Small Cause Court which the Chief Justice of the High Court may require him to perform. In my opinion the object of that section was to enable the Chief Justice to prescribe generally the duties to be performed by a Judge of the City Civil Court when transferred to the Small Cause Court for any substantial period and not to enable the Chief Justice to interfere with regard to the transfer of particular cases and create a City Civil Court Judge a Small Cause Court Judge ad hoc with reference to an individual case. But two of my predecessors, Sir Arnold White and Sir John Wallis, did consent in particular cases to apply Section 5 (2) for the purpose of ordering matters of this kind to be tried together. I decline to follow their example for the reason that I think that if the statutes are looked at it is quite clear they contemplate the existence of concurrent remedies under the two Acts and that ample provision is made to avoid any apparent inconvenience arising from the concurrent jurisdiction.

(2.) The Small Cause Courts Act by Ch. 7 provided a summary remedy for an owner of property to eject persons in possession of that property which was prima facie illegal and Ss. 46, 47 and 49 of that Act provide safeguards against such a summary order precluding the determination of any question of title which may be raised in Court of appropriate jurisdiction. The Small Cause Courts Act was passed in 1882 and at that time the only tribunal which could try questions of title to property liable to be the subject of a summary order under the Presidency Small Cause Courts Act was the High Court and Secs.47 and 49 of the Act are framed in view of that position. That Act dates from 1882 and in 1892 the City Civil Court Act was passed which gives jurisdiction to the City Civil Court to try questions of title to property up to a certain value which would include the property in issue in this suit.

(3.) I am quite clear that the Small Cause Courts Act deliberately provided for summary remedies for possession without prejudice to the trial of questions of title in a higher tribunal. The difficulty has entirely arisen owing to the fact that ten years later the City Civil Court Act provided a new tribunal whose jurisdiction as to title was up to a certain amount concurrent with that of the High Court and it did not and could not amend the Presidency Small Cause Courts Act to conform to the altered state of affairs, because the Presidency Small Cause Courts Act was an imperial statute and the City Civil Court Act was local. It was suggested that the Madras City Civil Court Act and the Presidency Small Cause Courts Amendment Act 5 of 1916 solved the problem by virtue of Section 2 which enacts that all suits cognizable by the Court of Small Causes of Madras...... may at the election of the plaintiff be instituted in the Madras City Civil Court which shall have jurisdiction to try and dispose of such suit according to the provisions of the Madras City Court Act, 1892, and it was argued that that section enabled me to use the power conferred on me by Section 24 of the Civil P. C. In my opinion that solution is not open because it is clear to my mind that proceedings under Ch. 7 of the Small Cause Courts Act are not suits within the meaning of Act 5 of 1916. Indeed language is carefully chosen to indicate that they are not suits but summary orders which can be enforced without prejudice to the result of suits properly so described. From that it follows that though under Section 24 of the Civil P. C., I have jurisdiction to transfer matters other than suits to a subordinate Court, e. g., the City Civil Court, I can only transfer them to a Court which has jurisdiction to try them. In my opinion the jurisdiction to try a summary application of this nature is one exclusively vested in the Small Cause Court and that if I transferred such an application to the City Civil Court I should be transferring it to a Court which has no jurisdiction to try it. What is really required is that the Small Cause Courts Act should be amended by adding in each section where the expression "a suit in the High Court" occurs, the words "or in the City Civil Court" to meet the altered state of things created by the City Civil Court Act of 1892. That amendment can only come from the Imperial Legislature and in my opinion it is most imperative that it should come into force at the earliest possible moment. Otherwise either the High Court will be clogged with trivial suits relating to the title of property of small value because of the reservation of all questions of title by the Act of 1882 to the High Court or else the City Civil Court will be beset with arguments alleging res judicata on the ground that res judicata is guarded against by the Act of 1882 only in the case of proceedings in the High Court. I must leave the summary proceedings in the Presidency Small Cause Court to take their course. If the parties will undertake not to raise the plea of res judicata on the ground that the only exemption of such a plea is in the case of suits brought in the High Court the suit in the City Civil Court can also take its ordinary course. If they will not do so, I see no option but to transfer the suits raising the question of title to be dealt with by the High Court. Mr. Venkataramana Rao and Mr. Narasimha Aiyar desire the question of title to be tried in the City Civil Court and agree not to raise the plea in that Court that the result of the proceeding in the Small Cause Court (whatever it may be) shall be treated as res judicata and binding on the City Civil Court, on the question of title.