P L D 1970 Dacca 597 (PLP)

"28‑A. Power of District Court to withdraw and transfer cases.‑(I) Where a District Court is satisfied that any parti cular suit cannot be adequately tried by a Court of Small Causes, it may withdraw such suit from that Court and (i) try or dispose of that suit itself, or (ii) transfer such suit to another Court subordinate to the District Court. (2) Where any suit is so withdrawn, the District Court or the Court to which such suit is transferred shall try and dispose of the same as if such suit were not cognizable by a Court of Small Causes." Two other provisions, to which, too, reference may be usefully made in this connection, are sections 24 and 28 of the said Act. These provide :‑ "

24. Where an order specified in clause (ff ) or clause (h) of subsection (1) of section 1()4 of the Code of Civil Procedure, 1908, is made by a Court iof Small Causes, an appeal therefrom shall lie to the District Court on any ground on which an appeal from such order would lie under that section. 28.‑(1) A Court of Small Causes shall. be subject to the administrative control of the District Court and to the Superintendent of the High Court and shall‑ (a) keep such registers, books and, accounts as the High Court from time to time prescribes, and (b) comply with such requisitions as may be made by the District Court, the High Court or the Provincial Government. for records, returns and statements in such form and manner as the authority making the requisition directs. (2) The relation of the District Court to a Court of Small Causes, with respect to administrative control, shall be the same as that of the District Court to a civil Court of the lowest grade competent to try an original suit of the value of five thousand rupees in that portion of the territories administered by the Provincial Government in which the Court of Small Causes is established." Mention may also be made here of section 24 of the Code of Civil Procedure which empowers the District Court inter alia to withdraw from the Subordinate Courts any suit, appeal or other proceeding pending before such Courts which obviously include the Court of Small Causes as well. It would thus appear that the Court of Small Causes is subordinate to the District Court administratively in all respects and also judicially in some respects i.e. with, respect to the categories of cases enumerated in section 24 of the S. C. C. Act as also to the extent contemplated by section 24 of the Code of Civil Procedure. Barring these the two Courts are independent of each other in the sense that a Small Cause Court is not Subordinate to the District Court in its judicial capacity excepting the cases mentioned in section 24, S. C. C. Act and to the extent provided by section 24 of the Code of Civil Pro cedure.' Introduction of section 28‑A by the Provincial Small Cause Court (Amendment) Ordinance, 1962, however, has created a new relationship of concurrent jurisdiction, in that the District Judge has been empowered to decide whether a suit instituted in a Court of Small Causes can be adequately tried by it. This power in respect of suits involving complicated questions of title was so long exclusively exercisable by the S. C. Court itself under section 23(1). Thus the new section 28‑A and the original section 23 together have set up two different forums of con current jurisdiction in place of one single forum of exclusive jurisdiction under the latter for determining whether a Court of ' Shall Causes should try a suit filed before it or it should go before an ordinary civil Court for trial. It appears that for the purpose of determining the said question, i.e. whether a particular suit cannot be tried adequately, the power of the District Court is not restricted to the question of title and is thus wider in scope than that of the trial Court under section 23(1) but nothing really turns upon that for my present purpose. It is however important to note that section 28‑A (1) does not touch section 23(1) nor does it indicate the procedure for moving the forum set up under the one to the exclusion of that contemplated by the other. A pertinent question arising, therefore, is whether the said two forums, because they are concurrent, are competent to function simultaneously in respect of the said question arising in a particular suit or to sit in judgment over each other so as to entitle either of them to take its own decision regardless of the order or decision made by the other. of these two questions, the first is not likely to arise at all if those concerned adhere to the established rule of practice, having the sanction of judicial authorities, that in regard to a matter cognizable by two different Courts, one of which is inferior to the other, it is the Court of inferior status that ought to be approached in the first instance, as is, it may be incidentally observed, insisted upon in regard to criminal revisions, in respect of which the High Cour and the Court of Sessions have concurrent jurisdiction, even though for the purpose of making the final order, where inter ference appears to be called for, the latter has to make a reference to the former. This, to my mind, emphasises the desirability of observing the said rule all the more where the matter involved is one that can be finally disposed of by the Court of inferior status itself. The conclusion I am thus led to reach is that the aid of section 23(1) and of section 28‑A(1) cannot be invoked simultaneously, and where such aid is invoked on the ground that the relief sought depends upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the proper course would be to require the party concerned to move the trial Court in the first instance. Coming now to the second question, referred to above, i.e. whether the two Courts, simply because their jurisdiction in this behalf is concurrent, are free to adjudicate upon the question independently of each other i.e. in disregard of the decision that either of them might have already taken, I have no hesitation to confess that I feel perturbed at the very thought of such a contingency no less than at the prospect of the anomalous consequences bound to follow therefrom. I am unable to suppose that this can be said to be the scheme of the enactment or to imagine that the framers of section 28‑A (1) intended to create such an anomalous position or accord legal sanction to a likely judicial conflict in the self‑same cause and that, too. between two Courts, one of which, as I have already indicated above, is subordinate to the other. Even apart from what has been indicated above, the power conferred under section 28‑A (1) upon the District Court by itself also appears to me to imply that it has been treated as the superior Court in relation to the Provincial Small Cause Courts functioning within its territorial limits. In my opinion, therefore, once a decision has been made by the District Court under section 28‑A(1), that is binding upon the Small Cause Court and it is no longer open to the latter to draw upon or exercise the power vested in 4 under section 23(1). The converse however cannot hold good, so that even where the Small Cause Court has declined to return a plaint under section 23(1), the District Court will be com petent to consider the question afresh on its own, under section 28‑A(1), as the High Court does in criminal revisions, and the party concerned will be entitled to move that Court, though that will not be by way of appeal or revision but by way of an original application under the said section i.e.‑,, section 28‑A(1). Where, however, a Small Cause Court decides that the suit involves questions of title, which cannot be determined by it finally and returns the plaint accordingly under section 23(1), no scope, in my view, is left for the application .of section 28‑A(1), for the power vested hereunder in the District Court to withdraw or not to withdraw a suit can be exercised in pending suits only, and a suit cannot be said to be pending when the plaint upon which it is founded has been returned. I may mention here that Mr. Bose also made some comments with reference to the clause "as if such suit were not cognizable by a Court of Small Cause" occurring at the end of sub section (2) of section 28‑A but those do not appear to have any relevance for the purpose of the point under consideration. Hence without entering into a discussion of those comments I would like just to observe that this clause appears to have reference to section 24 of the Code of Civil Procedure and is meant to make it unambiguously clear that unlike S. C. C. suits transferred thereunder, those withdrawn or transferred under section 28‑A(1) will be treated as not being of the small cause nature and as such be governed for all purposes by the procedure applicable to ordinary civil suits. It is thus clear that the learned S. C. C. Judge, in the instant case acted with material irregularity in the exercise of his jurisdiction in entertaining the question raised under section 23(1) and returning the plaint, as he has done. The Rule is accordingly made absolute. The order of the learned S. C. C. Judge returning the plaint is set aside and it is directed that the plaint shall be readmitted under the original number and the suit proceeded with and disposed of according to the law. As the point is one of first impression, I leave the parties to bear their own costs. Before parting with the case I would however like to refer back to the conflict of jurisdiction created by the enactment of section 28‑A, apparently without due regard to existing provision of section 25 as well as the anomalous consequences bound to follow from these two provisions operating concurrently. I have tried to reconcile their application as best as possible but that, I am afraid, cannot touch the main objectionable feature, to wit, existence of two parallel forums exercising con current jurisdiction and leading to the deplorable conflict, referred to above. I have therefore felt impelled to append these observations so that the attention of the appropriate authorities may be called to it for making such legislative change, if any, as may be found necessary. A.E./S.A.H. Rule made absolute