The power of a Judge to act upon the evidence or memorandum of evidence recorded by his predecessor is a mere enabling provision relating to a matter of procedure and not affecting one of jurisdiction.

M. KRISHNA RAO, J.

( 1 ) THE question for determination before us is whether a Judge exercising jurisdiction under the provisions of the Hyderabad Small Causes Courts Act can act upon the memorandum of Evidence already recorded by his predecessor, or whether he should conduct a trial de novo.

( 2 ) IN R. S. Mahmood v. Syed Ahmed, AIR 1963 Andh Pra 65 = (1962) 1 Andh WR 154 a Division Bench of this Court (Chandra Reddy, C. J. and Narasimham, J) took the view that in such a case there should be a de novo trial. As the correctness of this decision has been challenged, the case is placed before the Full Bench.

( 3 ) THIS revision petition is filed by the plaintiff in a small causes suit in the four witnesses have given evidence on behalf of the plaintiff the presiding officer was transferred on promotion. When the case was taken up by the successor, the defendant filed an application I. A. No. 156 of 1971 asking for a de novo trial on the ground that the succeeding judge has no power to act upon the memorandum of evidence recorded by his predecessor. The said application was allowed ordering a de novo trial following the judgment of this Court in AIR 1963 Andh Pra 65 = (1962) 1 An WR 154, Aggrieved by this order, the plaintiff filed this revision.

( 4 ) IN order to appreciate the point of controversy it is necessary to refer to the relevant provisions of law. The procedure for hearing witnesses is laid down in O. 18 of the First Schedule to the Code of Civil Procedure, 1908, Rule 4 contain s a general provision for taking down the evidence of the witnesses orally in the presence of the Judge. Rule 5 lays down that in appellable cases the evidence shall be taken in the forms of narration to be signed by the witness and the Judge. Under Rule 13 it is provided that in cases where no appeal lies, the Judge may merely make a memorandum of substance of the evidence. Rule 15 contains a general provision that a succeeding Judge can deal with any evidence or memorandum taken by his predecessor and proceed with the trial. Under Order 50 of the First Schedule to the Code of Civil Procedure, the provisions of Order 18, Rules 5 to 12 are excluded from their operation as regards Courts exercising powers under the Indian Provincial Small Cause Courts Act.

( 5 ) WE will now turn to the provisions of the Hyderabad Small Causes Courts Act (VI of 1330 Fasli ). Section 9 provides that a Court of Small Causes shall in the trial of suits, follow as far as possible, the provisions of the Code of Civil Procedure (Hyderabad) except those specified in the Schedule annexed to the Hyderabad Small Causes Courts Act. The said schedule excludes several provisions of the Hyderabad Code of Civil Procedure (No. III of 1323 F) from the purview of the Small Causes Courts Clause 6 of the Schedule lays down that Sections 213 to 221 of Chapter XIX of the Hyderabad Code of Civil Procedure relating to examination of witnesses, does not apply to the trial of small cause suits. It is common ground that Sections 213 to 221 of the Hyderabad Code of Civil Procedure correspond to Order 18, Rules 5 and 10 to 18 of the Code of Civil Procedure (Indian ). It follows, therefore, that there is no provision corresponding to Rule 12 or Rule 15 of Order 18 of the Code of Civil Procedure (Indian) enabling the Hyderabad Small Causes Court either to take down the substance of the evidence or to enable a successor Judge to act upon the evidence recorded by the predecessor. But as a matter of general practice we are told that the Hyderabad Small Causes Courts have been since 1960 taking down only a memorandum of the substance of the evidence as they are not appealable cases. But the anamolous position is that while judges exercising powers under the Indian Provincial Small Cause Courts Act can proceed to act on the basis of evidence noted by a predecessor in office, there is no specific provision enabling a small cause Judge in Hyderabad to act upon the evidence noted by his predecessor. Th

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