The Small Cause Court Bench had jurisdiction under Section 38 of the Presidency Small Cause Courts Act to set aside the judgment of the trial court, as the judgment was manifestly against the weight of evidence.

( 1 ) THIS is an application under Section 115 ot the Code of Civil Procedure. The two petitioners are the Everest Cine Corporation (Private) Ltd. and its Director B. Chandak. These peti-tioners were the defendants in a suit before the Small Cause Court, Calcutta. The plaintiff in that suit was one Anil Banerjee who died during the pendency of the Rule in this Court. The Rule here was issued on the 12th February, 1962 and was directed against the judgment of the Presidency Small Cause Court under Section 38 of the Presidency Small Cause Courts Act which set aside the judgment and decree passed by the learned Trial Judge of the Small Cause Court.

( 2 ) THE facts of the case giving rise to this application may be stated briefly at the outset. The plaintiff, a Cine-Cameraman sued the two defendants for recovery of the sum of Rs. 2,000. The plaintiff's case is that on the 9th March, 1955 he was appointed as the Director of Photography for a film called "chalachal", under a written contract contained in a letter which is marked Ex. 2c and bearing the same date as the 9th March, 1955. The terms of the contract were that the plaintiff's engagement was to last for a period of six months commencing from the first shooting day of that picture and that in consideration of the services rendered to the satisfaction of the petitioners they agreed to pay the plaintiff a consolidated sum of Rs. 2,000 according to certain terms. The defence of the petitioners in the Small Cause Court was that the plaintiff failed to perform that contract and the contact had to be perforated otherwise by other persons. The teamed Trial Judge dismissed the suit and accepted the defence. On an application under Section 88 of the Presidency Small Cause Courts Act a Bench of two Judges of the Small Cause Court set aside the decree and judgment of the learned Trial Judge and granted a decree to the plaintiff as prayed for. It is against that judgment that this Rule was directed.

( 3 ) MR. Roy on behalf of the petitioners first raised the troublesome question about the jurisdiction under Section 38 of the Presidency Small Cause Courts Act. His point is that the Bench of the Small Cause Court has no jurisdiction to decide questions of fact and upset findings of fact under Section 38 of the Presidency Small Cause Courts Act This point has been a controversial point in India and the controversy does not seem to have abated with the passage of time. Different High Courts had different views on the subject and in some cases even the same High Court has different views in different judgments. An appeal to the section may be a good way of beginning the discussion. Section 38 of the Presidencv Small Cause Courts Act reads as follows: where a suit has been contested, the Small Cause Court may, on the application of either party, made within eight days from the date of the decree or order in the suit (not being a decree passed under Section 522 of the Code of Civil Procedure) (XIV of 1892), order a new trial to he held, or alter, set aside or reverse the decree or order, upon such terms as it thinks reasonable, and may, in the meantime, stay the proceedings. " there is an explanation to this section which is not relevant for the present application.

( 4 ) THE language of the section expressly provides for ordering "a new trial" to be held. It also expressly empowers the Bench of the Small Cause Court under that section to alter, set aside or reverse the decree or order of the trial Court. Much learning has been used to explore, define, label and analyse the nature and type of this jurisdiction under Section 38 of the Presidency Small Cause Courts Act. The debate continues on the question whether the jurisdiction is appellate or revisional. The debate also continues on the question whether facts could be revised or only points of law alone are the subject-matter under Section 38 of this Act. This elaboration and consequent complexity arise not on the lang