Full Judgment
Kendall, Ag. C.J.
1. This is an application for the revision of an appellate order passed by the Subordinate Judge of Etah in the following circumstances. Ram Sarup, the applicant, had made a statement in the course of a suit which was being tried on the Small Cause Court side by the Munsif of Kasganj in consequence of which the presiding officer decided to make a complaint against him under Section 193, Penal Code. The order embodying this complaint was dated 18th March 1932, and it was signed by the presiding officer as Munsif of Kasganj and not as Judge of the Small Cause Court. The applicant made an appeal to the District Judge, who transferred this case, among others, to the Subordinate Judge for disposal, and the Subordinate Judge disposed of it in the order which is now the subject of the present application, dismissing the appeal.
2. It is urged in support of the application that the original complaint should have been made not by the Munsif, but by the Judge of the Small Cause Court because the matter was being tried by the Judge of the Small Cause Court and not by the Munsif; and as a consequence of this the appeal which should have been disposed of by the District Judge, and not transferred by him to the Subordinate Judge has been disposed of by a Court which has no jurisdiction. The fact that the complaint of 18th March 1932 was made by the Munsif as such and not as Judge of the Small Cause Court might not on the face of it have had any effect, and the irregularity, if there was one, might not have vitiated the order. It does appear to us however that the result of the Munsifs signing the order as Munsif and not as Judge of the Small Cause Court has had the effect of misdirecting the appeal to the Subordinate Judge instead of to the District Judge. The right of appeal in the circumstances is one that accrues to the applicant under Section 476-B, Criminal P.C., that is to say:
He may appeal to the Court to which such former Court is subordinate within the meaning, of Section 195(3)
and Section 193 (3) shows that for purposes of this particular section:
a court, in the case of a civil Court from whose decrees no appeal ordinarily lies, shall be deemed to be subordinate to the principal Court having ordinary civil jurisdiction witnin the local limits of whose jurisdiction such civil Court is situated.
3. Now a Small Cause Court is a Court from the orders and decrees of which no appeal ordinarily lies, and this applies whether the Court is a regular Small Cause Court appointed under the Small Cause Courts Act or is merely the Court of a Munsif invested with special powers as a Judge of the Small Cause Court under the Bengal, Agra and Assam Civil Courts Act. The appeal from that order therefore lay to the principal Court having ordinary original civil jurisdiction as provided in Clause (c) of Section 195, Criminal P.C., that is to say, to the District Judge. No doubt the appeal was rightly made to the Court of the District Judge, but the Court that had to dispose of that appeal was one having jurisdiction to do so, and the Judge had no jurisdiction to transfer the appeal to the Subordinate Judge as he would have had under Section 22, Bengal, Agra and Assam Civil Courts Act, if the appeal had been one against the order of a Munsif.
4. It appears then that the applicant has been deprived of the right of appeal to the District Judge which the law allows to him, and we are unable to hold that there has been no substantial injustice in the case, because of; course we are unable to say that the decision of the District Judge would necessarily have been the same as the decision of the Subordinate Judge. We are clearly of the opinion that it is necessary to set aside the order of the Subordinate Judge as being with out jurisdiction; and we therefore allow this application and direct that the appeal be re-admitted by the learned District Judge under its original number and disposed of by him according to law. In the circumstances of the case, as this question of jurisdiction was not raised in the lower appellate Court and the applicant was himself to blame for the waste of time involved in making the present application, we make no order as to costs.