The Small Cause Court under Section 38 can exercise only revisional jurisdiction and has no jurisdiction to decide questions of fact.

JUDGMENT

Lort-Williams, J. - This is an application u/s 115, Civil P.C., alleging inter alia that the Full Bench of the Court of Small Causes in Calcutta has exercised a jurisdiction not vested in it.

2. The petition brought a suit in Court for the price of goods sold delivered. The defence was a denial, and the seventh Judge of the Court, Mr. P.C. Dutt, dismissed the suit.

3. The petitioner then applied for a new trial u/s 38, Presidency Small Cause Courts Act.

4. The application was heard by what was called a Full Bench consisting of the Chief Judge and Mr. P.C. Dutt, when new grounds were added, namely that the petitioner had lately discovered fresh evidence to the effect that the defendant firm had disposed of the goods in suit to a third party, and after hearing arguments the Court granted the application, set aside the order of dismissal, restored the suit and ordered it to be heard by Mr. Latifur Rahman, Judge, Fourth Bench.

5. Thereupon the defendant firm applied for a new trial to set aside the said order on the ground inter alia that the Full Bench had erred in law in setting aside the order of dismissal of the trial Court on the mere allegation of the petitioner that he had discovered fresh evidence without requiring him to give particulars or prima facie proof of the existence of such evidence or to produce it before the Court and in find produce it before the Court and in finding without proof that such evidence was not available at the time of trial.

6. A Full Bench consisting of the Chief Judge, Mr. N.C. Sen and Mr. P.C. Dutt, heard this application ex parte and issued a notice directing the petitioner to produce documentary proof in support of his allegation that he had discovered fresh evidence.

7. The evidence upon which the petitioner relied was contained in khata books which were in the possession of one Wahed Hossain who lived more than 200 miles Calcutta and alleged that he was ill, and the petitioner was unable to secure his attendance with his khata books in spite of the service of a subpoena. After several adjournments, and after dismissing the petitioner's application for the issue of a commission of the Judges who expressed some doubt as to the genuineness of the petitioner's alleged inability to procure the attendance of his witness or produce the necessary khata books, set aside the order granting a new trial and restored the order of the trial Judge dismissing the suit.

8. According to the petitioner they did this on the ground that they thought that it was impossible that the evidence of the witness Hossain would be believed especially as it was sought to examine him on commission or at any rate the possibility was not more one way than the other.

9. The question which I have to decide is whether they had jurisdiction to make this order.

10. Chapter 6, Presidency Small Cause Courts Act, bears the heading "New Trials and Appeals." Section 37 is as follows:

Save as otherwise provided by this chapter or by any other enactment for the time being in force every decree and order of the Small Cause Court in a suit shall be final and conclusive.

11. Section 38 provides that the Court, may on the application of either part, made within eight days from the date of the decree or order in the suit order a new trial to be held or alter, set aside or reverse the decree or order upon suet terms as it thinks reasonable and may in the meantime stay the proceedings. Sections 39 and 40 provide machinery for removing into the High Court for trial suits in which the subject-matter exceeds in value one thousand rupees.

12. Thus it will be observed that there is no appeal from any decree or order of the Court except as provided by Section 38 The wording of this section is wide enough to cover appellate jurisdiction both on fact and on law. But it has been settled law in India for many years founded on a number of decisions of which the principal are Sadasook Gambir Chand v. Kannaya [1896] 19 Mad. 96; Sassoon v. Hurry Das Bhukat [1