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Judgment
Norman Macleod, Kt., C.J.—The plaintiff sued to recover Rs. 100 as balance due for Mulgeni rent in the Court of the Subordinate Judge of Honavar. The Judge then presiding in that Court had no Small Cause Court powers, but when the suit came on for trial, it was decided by Mr. Halbhavi who had Small Cause Court powers up to Rs. 100. The defendants filed an appeal to the District Court, when the District Judge held that there was no appeal on the ground that it was a Small Cause Court suit, and although it had been tried as a regular suit the question of appeal would depend upon the nature of the suit and not on the way in which it was described.
The attention of the District Judge does not seem to have been drawn to the decision of this Court in Sambhu Dhanaji v. Ram Vithu ILR (1903) 28 Bom. 244 In that case the suit was filed for recovery of Rs. 81-4-0 in the Court of the Subordinate Judge who had only at that time Small Cause Court powers up to Rs. 50. His powers were subsequently raised to Rs. 100 before the suit came on for hearing. But the suit, was decided by him as a regular suit and the claim was allowed. In appeal it was held by the District Judge that no appeal lay. In revision it was held by the High Court that u/s 32(2) of Act IX of 1887 it was necessary that the Judge should, before the institution of the suit, be invested with Small Cause Court jurisdiction entitling him to hear the particular suit. la this case when the suit was filed the Judge had no Small Cause Court powers at all, and therefore on that circumstance depended the question whether the appeal lay to the District Court when the suit came to be ultimately decided in the Subordinate Judge''s Court. This is not a second appeal, but an appeal from order, as the District Judge held that no appeal lay to his Court.
The appeal must be allowed and the case sent back to the Court of the District Judge to be disposed of according to law.
Costs to be costs in the appeal.