Power of the High Court to entertain the revision.

This is a civil revision petition filed under section 115, Civil Proce-dure Code, against the order made by the Bench of the Court of Small Causes in N. T. A. No. 4 of 1981. The learned III Judge and the IV Judge, Court of Small Causes constituted the Bench.

The New Trial Application No. 4 of 1981 was filed against the Judgment and decree in Suit No. 122 of 1980 rendered by the learned III Judge, Court of Small Causes, Madras on 27th day of November, 1980 holding that the suit is not maintainable since section 69 (2) of the Partnership Act had not been satisfied and also holding that the accountant-defendant is not liable to pay the value of the alleged shortage of 69 tumblers and six cups. The said New Trial Application had been preferred under section 38 of the Presidency Small Causes Court Act (XV of 1882), wherein the Bench of the Small Causes Court allowed the application. It is against that order pronounced by the Bench in the New . Trial Application, the defendant has come forward with this revision petition under section 115 of the Code of Civil Procedure.

2. The point for consideration in this civil revision petition is whether there is any error of jurisdiction or any other error as contemplated under the provisions of section 115 of the Code of Civil Procedure, that has been committed by the lower Court in pronouncing the judgment in N. T. A. No. 4 of 1981.

3. Even before actually dealing with the merits of this civil revision petition, it is better to note the provisions under which the revision lies as against the order pronounced by the Bench of the Court of Small Causes in N. T. A. No. 4 of 1981. The new trial contested cases are actually entertained by the Presidency Small Causes Court under the provisions of section 38 of the Act XV of 1882. It reads as follows:

"New trial of contested cases :Where a suit has been contested, the Small Causes Court may, on the application of either party, made within eighty days from the date of the decree or order in the suit (not being a decree passed under section 522 of the Code Civil Procedure) order a new trial to be 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. Explanation : — Every suit shall be deemed to be contested in which the decree is made otherwise than by consent of or in default of appearance by the defendant."

As against the order in the new trial application entertained by the Bench of the Court of

Small Causes in the Presidency Town, a revision only is available to the aggrieved party Section 39 of the Presidency Small Causes Court Act (XV of 1882) reads as fallows:

"Removal of certain causes into High Court. — -(1) In any suit instituted in a Small Causes Court in which the amount or value of the subject-matter exceeds the sum of one thousand rupees, the defendant or any one of the defendants may, before the day fixed by the summons for the appearance of the defendant or within eight days after the service of the summons on him, whichever period shall last expire, apply ex parte on an affidavit setting forth the facts on which he relies for his defence to a Judge of the, High Court for an order removing the cause into the High Court.

(2) Unless the Judge is of the opinion that the application has been made solely for the purpose of delay, the applicant shall be entitled to such order as of right:

Provided that the removel directed by such order shall, unless the Judge otherwise directs, be conditional upon the applicant giving security, to the approval of the Judge. within a reasonable time to be prescribed in the order for the payment of the amount claimed and of the costs which may become payable by him to the plaintiff in respect of the said suit.

(3) If the applicant fail or neglect to complete the required security (if any) within the prescribed time (if any) the said order shall be discharged and the suit shall proceed in the Small Causes Court as i