P L D 1960 (W (PLP)

Date of hearing : 28th October 1960. This revision arises out of a suit instituted by the plaintiff -respondent for ejectment of the petitioner from a house (premises No. 3, Bungalow No. 1) situated on Lytton Road, Quetta, and for recovery of Rs. 480 representing the arrears of rent for eight months, viz. March 1957 to October 1957, at the fate of Rs. 60 per mensem.

2. The suit was instituted in the Court of the Senior Civil Judge, Quetta, in his ordinary jurisdiction, but before it could be disposed of, the West Pakistan Urban Rent Restriction Ordinance of 1959 (VI of 1959) was promulgated on the 23rd of February 1959 and powers under the same were conferred on the Controller in respect of the ejectment of the tenants of houses in Quetta on the 12th of March 1959. 'The judgment of the learned Senior Civil Judge, which was delivered on the 6th of May 1959, therefore, omitted the relief relating to ejectment by stating that it could not be granted by him in view of the provisions of the Ordinance above‑mentioned which had taken away the jurisdiction of the ordinary Courts in that behalf, vesting it in the Controller, to be appointed by the Provincial Government under section 2 of the Ordinance. In regard to the prayer for recovery of rent, the learned Senior Civil Judge come to the view that the plaintiff‑respondent had failed to prove that the amount of rent was fixed at Rs. 60 p .m., and although the defendant‑petitioner had also not succeeded in proving that the rent was fixed at Rs. 20 p.m., the plaintiff‑respondent could only get the amount of the rent as admitted by the defendant, that is to say, at the rate of Rs. 20 p.m. He, therefore, granted the plaintiff‑respondent a decree for Rs. 160 as against Rs. 480 claimed by him. The plaintiff‑respondent lodged an appeal with the District, Judge, Quetta, praying for the full rent of Rs.

480. Before the learned District Judge, the defendant‑petitioner took up the objection that the decree of the first Court was without juris diction as the amount in claim being less than Rs. 500 the case was exclusively cognizable by a Small Cause Court. This objection was over‑ruled and the learned District Judge, on merits, accepted the claim of the plaintiff‑respondent for the total amount of Rs. 480 which was awarded with costs. The present revision of the petitioner is directed against this order.

4. Before me, the learned counsel for the petitioner has reiterated the plea that the suit before the learned Senior Civil Judge, minus the prayer for ejectment which had become infructuous in that Court on account of the promulgation of the West Pakistan Urban Rent Restriction Ordinance, was reduced to a suit for recovery of Rs. 480 as arrears of rent of a house and was thus of a small cause nature, and under section 15 (2) of the Provincial Small Cause Courts Act was cognizable by a Court of small Causes and that under section 16 of the same Act it could not be tried by any other Court. It was stated by the learned counsel that the learned Senior Civil Judge, Quetta, who decided the case, was also invested with small cause powers. It was also conceded by him that the legal position is now well settled that section 16 of the Provincial Small Cause Courts Act does not totally destroy the jurisdiction of an ordinary Court but only prevents the exercise of it if the suit is cognizable by a Small Cause Court. Under section 9 of the Civil Procedure Code, the Civil Courts have the jurisdiction to try all suits of a civil nature and if an ordinary Court deter mines a suit cognizable by a Small Cause Court, the proceedings of the Court and the resulting decree will not be a nullity. This would also appear to be the effect of Order XLVI, rule 7 of the Civil Procedure Code which authorises a District Judge to submit to the High Court the record of any case tried by a Court subordinate to him on an erroneous view of its jurisdiction or entailing an error of jurisdiction. The High Court has, under this rule, full powers to consider and determine the question of jurisdiction or to decide the case on merits to do sub stantial justice without putting the parties to the expense of a fresh trial.

5. Realising this position, the learned counsel for the petitioner gave another turn to his objection by stressing that although the judgment of the first Court may not be a nullity, it will be treated as a decision of a small cause case of the‑ value of less than Rs. 500 and, therefore, no appeal was competent to the District Judge and the proceedings taken in appeal before the latter are wholly without jurisdiction. Reference in this connexion is made to section 27 of the Provincial Small Cause Courts Act, which lays down as follows :‑ "Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Cause shall be final." There is ample authority for the view that no appeal lies where a Judge invested with Small Cause Court jurisdiction tries a small cause suit under his ordinary jurisdiction because the act of the Court must be ascribed to an actual existing authority under which it would be valid, rather than to one under which it would be void. In other words where a suit is brought in the Court of a Sub‑Judge invested with Small Cause as well as ordinary powers and he tries a small cause suit in his ordinary jurisdiction, he must be considered to have dealt with it as a Small Cause Court and his decision will not be open to appear See Patimbar v. Dhondo (12 Bom. 486). The mistake on the part of the trying Judge, in such circumstances wittingly or unwittingly, in trying a suit of a small cause nature under his ordinary jurisdiction does not alter the character of the suit, which will be subject to all the incidents of a small cause suit and consequently no appeal will lie.

6. In this view of the matter, plea of the learned counsel for the petitioner if I were to agree with him that the suit before the learned Senior Civil Judge was of a small cause nature which he chose to decide as an ordinary suit in his ordinary jurisdiction although he was invested with small cause powers. I am of the view, however, that the nature of the suit is to be determined as and when it' is instituted in the first instance and the question of jurisdiction has primarily to be determined from the averments in the plaint. No subsequent change in the character of the suit or its final assumption as a result of change in legislation will affect the question of jurisdiction unless the change in the legislation also expressly jurisdiction or by necessary intent changes the forum of original jurisdiction for the suit. In general, when the law is altered during the pendency of an action, the rights of the parties are decided pendency of according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. The suit in the present case had proceeded in the trial Court as one for ejectment and recovery of rent, falling under the ordinary jurisdiction of the Court and was rightly disposed of as such, the court holding in relation to the relief for eject ment that it had lost the powers to go into that question in view of the enforcement of the West Pakistan Urban Rent Restriction Ordinance. The powerlessness of the trial Court, as expressed by it, to grant that relief and to confine itself only to the other relief contained in the plaint did not make it a small cause case merely because the other relief which the Court found itself competent t4 determine was, in terms of money value, of less than Rs.

500. The plaintiff‑respondent could have, in his appeal, even challenged the view of the trial Judge on the issue of ejectment and whether he had succeeded or not is besides the point. The case as instituted fell clearly in the ordinary jurisdiction of the Court, and not being a small cause case was rightly disposed of within its ordinary jurisdiction, and was there fore subject to the incident of appeal. I, therefore, disagree with the contention of the learned counsel for the petitioner, which he has vehemently put before me, that no appeal lay to the District Judge although he had failed to take up this objection before the District Judge challenging his jurisdiction to entertain the appeal.

7. On the evidence on record led by the parties on the quantum or the rent, I feel inclined to agree with the learned appellate Court that the plaintiff‑respondent had succeeded in proving that the rent fixed was Rs. b0 to en. a i alleged by him and not Rs. 20 p.m. as contended by the petitioner. The first Court has not made a proper appreciation of the documentary evidence in the case and in particular it bas failed to notice that at page 57 at serial number 3 in the rent register Exh. P. Z. produced by the respondent there is an entry of Rs. 300 representing the arrears of rent for five months from October 1956 to February 1957 at the rate of Rs. 60 p.m. paid by the petitioner to the respondent. Some counterfoils of receipts issued to the petitioner and some counterfoils and receipts unissued, which were also produced, showed that the rent was being realised at the rate of Rs. 60 p.m. I am quite impressed with the statement of P. W. Abdur Rashid who was the scribe of these receipts and who proved that the rent was Rs. 60 p.m. although he very frankly admitted, showing no bias to exaggerate the case for the plaintiff‑respondent, that the rent had never been paid in his presence. The plaintiff‑respondent being illiterate was in the habit of getting receipts drawn up by this witness in advance for issuing them to the tenants as and when they paid the money. The most significant factor, however, is that in spite of the tenancy lasting for a very long period and in spite of the admission of the petitioner for having paid arrears of accumulated rent in large amounts, she has failed to produce a single receipt which could have shown that the rent was Rs. 20 p.m. and not Rs 60 as maintained by her.

8. I see no force in this revision which is dismissed with costs. A. H. Petition dismissed.