JUDGMENT

Dalal, J C - This is an application in revision by the scribe Fateh Bahadur and the witness Abu Muhammad to a document which is alleged to be forged. The Judge of Small Causes at Bahraich has made a complaint to the District Magistrate of Bahraich for the prosecution of the appellants under Sections 471 and 467 of the Indian Penal Code. An appeal is allowed from such a complaint under Section 476-B of the Code of Criminal Procedure. The appellate Court is described in Clause (3) of Section 195, Criminal Procedure Code.

2. The applicants here put in an appeal in the Court of Sessions and Subordinate Judge of Bahraich. He refused jurisdiction as he had obviously none under the provisions of the law already referred to. That provision says that in the case of a civil Court, from whose decree no appeal ordinarily lies, that Court shall be considered to be subordinate to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such civil Court is situate. The Court of Small Causes is such a Court; so it is subordinate only to the Court of the District Judge of Gonda.

3. The learned Counsel argued that this was not a Court of Small Causes, but one where a Munsiff is invested with such powers. There is no such distinction in the Provincial Small Cause Courts Act. The Local Government may in writing establish a Court of Small Causes at any place under Section 5 and appoint a Judge of that Court under Section 6. That is the only method of creating a Court and appointing a Judge to it. That Judge may perform any other function; but when he presides in the Court of Small Causes he is a Judge of the Court of Small Causes and nothing else. Nowhere is any provision made in this Act for a Munsif especially empowered to exercise such powers.

4. I desire, however, that the applicants shall have their appeals heard by a Court having jurisdiction because it is obvious that they have made a bona fide mistake. The Judge of Small Causes describes himself in his complaint as a Munsif. As Munsif his decrees are ordinarily appealable to the Sessions and Subordinate Judge of Bahraich, It is a pity that counsel are more prone to litigate on rulings than on a commonsense view of any subject. The course of applicants' counsel ought to have adopted in the lower Court would have been to admit an obvious mistake caused by the ordinary procedure prevailing in Bahraich and request the District Judge of Gonda to transfer the appeal to his own file or to move this Court to do so.

5. I set aside the order of the lower Court and transfer the appeals of Fateh Bahadur, Abu Muhammad and also of Abdul Hasan, who has not applied to this Court, to the Court of the District Judge of Gonda. He is requested to hear the appeals as if they had been properly filed in his Court originally within the period of limitation.

6. As the respondent, Abdul Rahim, who desires prosecution, has been damnified in costs through a mistake, however, excusable of the applicants, I direct that Abdul Rahim shall receive his costs up to to-day of both the Courts from the applicants Fateh Bahadur and Abu Mohammad. These costs may be recovered as if they were decreed.