Rama Jois, J.
1. In this second appeal, referred to a Division Bench under Section 9 of the Karnataka High Court Act, 1961, the following question of law arises for consideration :
Whether the Chief Judge of the Court of Small Causes, Bangalore, who has also been appointed as a Judge of the City Civil Court, had the jurisdiction to dispose of the appeal preferred against the order of the erstwhile Second Munsiff. Bangalore ?
2. The above question arises in view of the following facts: A City Civil Court was established for the City of Bangalore under the provisions of the Bangalore City Civil Courts Ordinance, 1979, with effect from 16-11-1979. The Ordinance was replaced by the Bangalore City Civil Courts Act, 1979 (in short 'the Act of 1979'). Section 3 of the Act of 1979 provides that as from the appointed date there shall be a City Civil Court for the City of Bangalore. With effect from the date of establishment of the City Civil Court, the District Courts, the Courts of the Civil Judges and the Munsiff's Courts established under the Karnataka Civil Courts Act, 1964 (Karnataka Act 21 of 1964) within the City of Bangalore stood abolished. Under the new set-up, apart from the City Civil Court, in respect of civil jurisdiction, a Court of Small Causes consisting of the cadre of Civil Judges was also established. According to the provisions of the Karnataka Small Cause Courts Act, 19(SIC)4 (in short 'the Act'), the Chief Judge of the Small Cause Court, Bangalore City, was to be a person belonging to the cadre of District Judges. Section 19 of the Act of 1979 makes special provisions for transfer of pending suits etc., prior to the establishment of the Civil Court, Bangalore to the City Civil Court. Subsections (1) and (2) of Section 19, which are relevant for the purpose of this case, read:
'19 SPECIAL PROVISIONS FOR TRANSFER OF PENDING SUITS, Etc (1) All suits, petitions, applications and other proceedings, other than appeals and proceeding connected therewith, pending before the District Court, the Court of the Civil Judge and the Munsiff's Court referred to in sub-section(4) of Section 3, which under this Act have to be instituted, filed or commenced in the City Civil Court shall, on the appointed date, shall stand transferred to the City Civil Court and shall be continued and disposed of by the City Civil Court as if such applications, suits, petitions or other proceedings had been instituted, filed or commenced in the City Civil Court.
'(2) All appeals and proceedings connected therewith pending before the said District Courts or the Courts of the Civil Judge referred to in Sub-section (4) of Section 3 shall on the appointed date stand transferred to the City Civil Court and shall be disposed of by the City Civil Court which is hereby empowered to hear such appeals and proceedings, as if they had been instituted, filed or commenced in such Court'.
R.A. No. 80 of 1979 was the appeal out of which this second appeal arises. The said appeal had been preferred before the erstwhile Civil Judge (Rural), Bangalore. In view of the provision of Sub-section (2) of Section 19, the said appeal stood transferred to the City Civil Court, Bangalore, as the territorial jurisdiction of the Bangalore City Civil Court was enlarged. Thereafter it was numbered as R.A. No. 991 of 1980. According to the appellants, the said appeal should have been disposed of by the City Civil Court, but, actually it was disposed by the Chief Judge, Court of Small Causes, Bangalore, though he had no jurisdiction to decide only the original suits falling within the jurisdiction of the City Civil Court in view of the specific entrustment of that jurisdiction on him by virtue of the power conferred under Section 26 of the Small Causes Courts Act and not the appeal. This objection was not raised in the appeal before the Judge who decided the appeal but was raised before the learned Single Judge in this appeal.
It is on account of this plea of the appellants the question set-out first arises for consideration in this appeal and, for that reason, the appeal has been referred to the Division Bench.
3. Elaborating the contention Sri. Ranga Vittalachar, Learned Counsel appearing in the connected appeal and Sri G. Thimmapaiah, Learned Counsel for the appellants in this appeal, submitted as follows: The jurisdiction of the Court of Small Causes are as specified under Sections 24, 25, 26 & 27 of the Act.
Section 24 of the Act reads :
'24. SAVING OF POWER TO APPOINT JUDGE OF COURT OF SMALL CAUSES TO OTHER OFFICE: (1) Nothing in this Act shall be construed to prevent the appointment of a person who is a Judge or Additional Judge of a Court of Small Causes, to be also a Judge in any other Civil Court or to be a Magistrate of any class.
(2) When a Judge or a Additional Judge is so appointed, the ministerial officers of his Court shall subject to any rules which the High Court may, with the approval of the State Government, make in this behalf be deemed to be ministerial officers appointed to aid him in the discharge of his duties of the other office'.
Section 25 of the Act reads :
'25. APPLICATION OF ACT TO COURTS INVESTED WITH JURISDICTION OF COURT OF SMALL CAUSES.
(1) So much of Chapters III and IV as relates to :
(a) the nature of the suits cognizable by Courts of Small Causes,
(b) the exclusion of the jurisdiction of other Courts in those suits,
(c) the practice and procedure of Courts of Small Causes,
(d) appeal from certain orders of those Courts and revision of cases decided by them ; and
(e) the finality of their decrees and orders subject to such appeal and revision as are provided by this Act, applies to Courts invested by or under any law for the time being in force, with the jurisdiction of a Court of Small Causes, so far as regards the exercise of that jurisdiction by those Courts.
(2) Nothing in Sub-section (1) with respect to Courts invested with the jurisdiction of the 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'.
Section 26 of the Act reads :
'26. APPLICATION OF ACT AND CODE TO COURTS SO INVESTED AS TO TWO COURTS : (1) A Court invested with the jurisdiction of a Court of Small Causes with respect to to exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall, for the purpose of this Act, and the Code be deemed to be different Courts'.
Section 27 of the Act reads :
'27. MODIFICATION OF CODE AS SO APPLIED : Notwithstanding anything in Section 25 or Section 26 :
(a) when, in exercise of the jurisdiction of a Court of Small Causes, a Court invested with that jurisdiction sends a decree for execution to itself as a Court having jurisdiction in suits of a civil nature, which are not cognizable by a Court of Small Causes, or
(b) when, a Court in the exercise of its jurisdiction in suits of a Civil nature which are not cognizable by a Court of Small Causes, sends a decree for execution to itself as a Court invested with the jurisdiction of a Court of Small Causes, the documents mentioned in Rule 6 of Order XXI of the, Code shall not be sent with the decree, unless, in any case, the Court, by order in writing, requires them to be sent'.
4. Section 8 of the Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the Schedule as suits excepted from the cognizance of a Court of Small Causes. But, Section 24(1) provides that nothing in the Act prevents the appointment of a Judge or an Additional Judge of a Court of Small Causes to be also a Judge in any other Civil Court. Section 26 of the Act provides a Judge so appointed could exercise the original jurisdiction in respect of suits of civil nature falling within the jurisdiction of such Civil Court. It follows that such Judge could not decide the appeals which are within the jurisdiction of such Civil Court.
5. In our opinion the contention urged for the appellants is raised by only looking to Section 26 of the Small Causes Courts Act and over-looking the provisions of Section 5(1) of the City Civil Courts Act. That Section reads :
'5. POWERS OF JUDGES.-(1) Subject to the other provisions of this Act, each of the Judges may exercise all or any of the powers conferred on the City Civil Court by this Act or any other law for the time being in force'.
In view of this provision each of the Judge of City Civil Court is empowered to exercise all or any of the powers of the City Civil Court. The power to decide the appeals preferred against the orders of the Munsiffs, to the Civil Judges Court, under the old set-up, which stood transferred to the City Civil Court is undisputedly vested in the City Civil Court. Therefore, if the Chief Judge of the Small Cause Court had not been appointed as a Judge of the City Civil Court he would have had no jurisdiction to decide the appeal. But, in the present case what has actually been done is, as there were number of vacancies in the City Civil Court with the object of utilising the services of the Chief Judge of Court of Small Causes in the disposal of cases pending before that Court he was appointed as an Additional Judge of the City Civil Court as he was an officer belonging to the cadre of District Judges. The Notification issued by the High Court on 26-8-1982 reads:
'NOTIFICATION
In exercise of the powers conferred, the High Court of Karnataka hereby appoints the Chief Judge, Court of Small Causes, Bangalore City, as Additional City Civil Judge, Bangalore City, for one year with effect from 23-8-1982 to dispose of cases pending in the vacant City Civil Court in addition to his Court work'.
The wording of the Notification is very clear. The Chief Judge of Court of Small Causes was appointed as Additional City Civil Judge, Bangalore City, for one year with effect from 23-8-1982. There is no dispute that the appointment has been extended from time to time. Thus, on 18-6-1983, when appeal was disposed of, the Chief Judge of Court of Small Causes was also an Additional City Civil Judge, and, therefore, by virtue of Section 5(1) of the City Civil Courts Act, he was competent to dispose of the appeal. For these reasons we reject the contention of the appellant and we answer the question set-out first as follows :
The Chief Judge of the Court of Small Causes, Bangalore, having been appointed as a Judge of the City Civil Court had the jurisdiction to dispose of the appeal preferred against the order of the Second Munsiff, Bangalore.
In fact, the certified copy of the appellate order produced along with this appeal shows that the appeal was disposed of by the Additional City Civil Judge.
6. Coming into the merits of the, case, the only ground taken on behalf of the appellants is that the suit filed by the respondent was not maintainable. Learned Counsel for the appellants contended that there was relationship of principal and agent between the respondent and the appellants, who were the plaintiff and the defendants respectively, and there fore the suit, as brought, was not maintainable for the recovery of the amount and it could have been only a suit for accounting.
7. It is seen from the order of the Learned Appellate Judge, on thorough examination of the facts and circumstances of the case, he has recorded a finding to the effect that there was no relationship of principal and agent and the defendants had not proved the relationship of principal and agent between the plaintiff and defendants. This is essentially finding of fact.
8. Apart from that, it appears to us that, even in the appeal the appellants could not have raised such a contention for the reason that no such plea had been taken in their written statement. The issues raised in the suit were seven. They read :
'1. Whether the plaintiff proves that Sri. I. G. Bagri, one of the Directors, has the authority to institute the suit?
2. Whether the plaintiff proves that the consignments were sent on sale basis as alleged?
3 Whether the plaintiff proves that they have paid the sales tax on the consignment as contended?
4. Whether the plaintiff proves that he is entitled to the interest as claimed?
5. Whether the defendants prove that this Court had no jurisdiction to try this suit as contended in para-7 of the written statement?
6. What is due?
7. What order or decree?'
An additional issue was raised which reads :
'Whether the suit, as framed, is not maintainable?'
Para-11 of the order of the Learned Munsiff would show that what was argued with reference to the additional issue was that the plaintiff being a Company, the suit filed by one of the Directors was not maintainable. In fact, this is the specific plea taken by defendants 1 and 3 in para-2 of their written statement. Nowhere in the written statement any plea was raised by defendants to the effect that there was relationship of Principal and agent and, consequently, the suit must have been on accounts and the suit, as framed, was not maintainable.
9. Learned Counsel for the appellants, however, invited our attention to para-4 of the written statement, which reads:
'As submitted above, the consignments were sent on consignment basis and not on a sale basis and hence the suit ought to have been filed for accounting. Hence, the suit on account as filed by the plaintiff is not maintainable and is therefore liable to be dismissed'.
Even in the said paragraph all that was pleaded by defendants was that consignments were sent on consignment basis and not on sale basis and, therefore, the suit ought to have been filed for accounting. There was no plea that the relationship between the plaintiff and the defendants was that of principal and agent Obviously for this reason no such contention was raised before the Munsiff. In fact, what was argued before the trial Court was that the suit filed by a Director was not maintainable and it was rejected. In the circumstances, we see no force in this contention also.
10. In the result, we make the following :
ORDER
Second Appeal is dismissed with costs.