ORDER

Trevelyan, J. - In this case I am asked to exercise the power given: to this Court by Section 622 of the CPC and to set aside an order made by Mr. Millett, the Chief Judge of the Calcutta Small Cause Court, refusing to permit the plaintiffs to institute this suit in the Calcutta Small Cause Court

2. The suit which the plaintiffs sought to institute was for the purpose, of recovering the sum of Rs. 23-7, the price of goods sold and delivered to the defendant in Calcutta. The defendant is residing at Lucknow. The goods were sold to the defendant in Calcutta, and were delivered to the East Indian Railway in Calcutta for transport to the defendant.

3. The 18th section Of the Presidency Small Cause Court Act of 1882 provides that, subject to certain Exceptions (which do not apply to this case), "the Small Cause Court shall have jurisdiction to try all suits of a civil nature, when the amount or value of the subject-matter does not exceed two thousand rupees ; and the cause of action has arisen, either wholly or in part, within the local limits of the jurisdiction of the Small Cause Court, and the leave of the Court has, for reasons to be recorded by it in writing, been given ;before the institution of this suit."

4. Mr. Woodroffe, who appears for the plaintiffs, contends that this section gives no discretion to the Judge of the Small Cause Court, but I do not agree with this contention. The provision in this Act is similar to the provision in Section 12 of the High Court Charter, and the word "leave" in that section of the Charter has always been construed as giving discretion to the Court. It is true that in very rare instances has the High Court, when leave to sue has been applied for, refused such leave ; but although I know of no instances in my own experience, I believe that occasionally leave has been refused, and ill has always been assumed that the High Court has this discretion. In the case of Wallis v. Taylor 13 C. 37 Mr. Justice Pigot refers to the Small Cause Court having discretion u/s 18. This case is, I think, an authority on this point.

5. The question here is, has Mr. Millett exercised his discretion or has he not ? In consequence of statements made by Mr. Adkin in the affidavit, which formed the grounds of this application, Mr. Millett has very properly sent up an explanation of what occurred. In that explanation he does not say expressly why in this particular case he refused leave to sue, but he denies the suggestion that he always refuses leave in cases under Rs. 100, and furthermore says that what he told Mr. Adkin was that, "since: the case of Wallis v. Taylor 13 C. 37 and having regard to the great caution enjoined on the Small Cause Court by the High Court in the case of granting leave (not of refusing it) he had thought it proper not to give leave to Sue defendants long distances off for comparatively small sums of money." As I understand it, Mr. Millett applied to this case a rule which he seems to have framed from Wallis v. Taylor, viz. that leave should not be given to sue defendants long distances off for comparatively small sums of money. It appears that Mr. Millett has not acted upon the rule suggested by Mr. Adkin, namely, never to give leave in cases under Rs. 100; but Mr. Millett himself shows that he has made a rule never to give leave to sue defendants long distances off for small sums of money.

6. I do not think that there is anything in the judgment in the case of Wallis v. Taylor to justify Mr. Millett in framing such a rule. All that Mr. Justice Pigot said was: "We think it desirable to add that the discretion of the Small Cause Courts in giving leave to sue u/s 18 of Act XV of 1882 is one that ought to be only very cautiously exercised in eases such as the one before us." These expressions suggest no such rule as that which Mr. Millett has framed for himself. All that Mr. Justice Pigot seems to have meant by those observations is to repeat what was said by Mr. Justice Wilson in his judgment