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Petitioner: MAJID BISWAS VS Respondent: ADILUQDIN SHAIKH
P L D 1960 Dacca 907
P L D 1960 Dacca 907
Before Rahman, J
MAJID BISWAS AND OTHERS‑Petitioners
versus
ADILUQDIN SHAIKH‑Opposite‑Party
Civil Rule No. 861 of 1959, decided on 24th February, 1960.
(a) Provincial Small Cause Courts Act (IX of 1887), S. 15 (1) read with Schd. 11, Art. 35, item (ii)‑Whether suit comes within exception provided by item (ii)‑Test.
In order to bring a suit within the ambit of the exception provided by item (ii) of Article 35 of Schedule II of the Pro vincial Small Cause Courts Act, 1887 and determine whether an act constitutes a crime or not, the nature of the allegations in the plaint are only relevant and the allegations must be such that if those allegations are established, an offence under chapter XVII of the Penal Code, 1860, would be made out. Thus, where, upon the facts, the case against the defendant is of an act merely wrongful or illegal but not necessarily penal so as to bring it within the provisions of the Penal Code, 1860, the jurisdiction of the Small Causes Court is not at all excluded.
Lalu Sardar and others v. Ohedali Mirdha A I R 1919 Cal. 1035 ; Khuda Box and others v. Raghunandan Lai and others A I R 1927 All. 381 ; Kashi Ram v. Des Raj A I R 1936 Lah. 798 ; Kader Sheikh v. Najumaddi Sheikh 44 C L R 190 ; Damodar Jha v. Baldeo Prasad A I R 1930 Pat. 575 ; Deokali v. Abhram Bali and others A I R 1931 Oudh 49 ; Nilkanth Ganesh Ranadive v. Dhondya Ganu Tandlekar A I R 1942 Bom. 316 and Bachittar Singh and others v. Rahim Bakhsh and others A ,I R 1938 Lah. 759 ref.
(b) Civil Procedure Code (V of 1908), S. 102‑" Of the nature cognizable by Courts of Small Causes"‑Connotation very wide so as to include suit cognizable by Court of Small Causes but not tried as such.
Section 102 of the Civil Procedure Code, 1908 applies to all suits of a civil nature of which the value does not exceed Rs. 500 except those which are mentioned in Schedule II of the Provincial Small Cause Courts Act, 1887. The test in deciding whether a second appeal lies or not is to be found in the nature of the suit and not in the powers of the Court. Hence, whether the Court could or could not take cognizance of the case is not so material as the question what was the nature of the suit.
(c) Provincial Small Cause Courts Act (IX of 1887), S. 25 Suit cognizable by Court of Small Causes not tried by such Court‑ Trial not invalid‑Character of suit, however, remains unaltered and decree will not be appealable.
Failure to try a suit of a nature triable by the Small Cause Court in the Small Cause Court file is an irregularity but of not such a nature as to cause a failure of justice. Although the trial is not invalidated, the character of the suit is not thereby altered and the decree is not appealable.
In a suit tried in the Small Cause Court file or of the nature of a Small Cause Court suit, the power of revision is given only to the High Court and not to any subordinate Court.
Shamsuddin Pradhan v. Jasoda Kanta Sen and others (1954) 6 D L R 277 ; Indra Chandra Mukherjee v. Srish Chandra Banerjee I L R 40 Cal. 537 and Satyendr a Nath Bisi and another v. Narendra Nath Sarkar 43 C W N 947 rel.
M. H. Khandkar for Petitioners. K. M. Saba for Opposite Party,
JUDGMENT
This application under section 115 of the Code of Civil Procedure is directed against the judgment and decree passed by the learned Subordinate Judge, Jessore, in an appeal preferred against the judgment and decree in a money suit disposed of by the Munsif, 2nd Court, Narail. The opposite‑party herein ins tituted the said suit for the recovery of a sum of Rs. 200 by way of damages on account of the price of 2 shalis of paddy and straw said to have been wrongfully cut and taken away by the defendants from 45 acre of land of Plot No. 2656, of Khatian No. 267 of Mouza Kalayanpur during 1363 B. S.
2. The plaintiff claimed that this plot of land originally belonged to leis maternal uncles Maniruddin and Saber in equal shares and appertained to a Jama of Rs. 15‑12‑0 which was subsequently enhanced to Rs. 17‑8‑0, but was recorded in the exclusive possession of Maniruddin in the C. S. Khatian. The latter died
without leaving any issue and the plaintiff as his successor lived in his homestead and possessed his lands and. that thereafter the holding was auction‑purchased by the Dighapatia Raj Estate in a certificate sale and the plaintiff thereupon took settlement of Maniruddin's half share in the holding at a rental of Rs. 8‑12‑0 and one Hazer, the son of Saber, took settlement of the latter's share at the same rent from the auction‑purchaser after the auction‑purchaser had possessed the lands in khas for some time. Since taking such settlement, the plaintiff also claimed to have erected his homestead on' the land and excavated a tank in his share ; but Hazer transferred his share of the land to different persons. The plaintiff further claimed that he had grown jute on the eastern .06 acre of land of the above plot and had peacefully harvested the same in Sraban, 1363 B. S.
3. Defendants Nos. land 7 contested the suit. They denied the truth of the allegations contained in the plaint and alleged that the suit plot appertained to a jama of Rs. 15‑12‑0 belonging to Maniruddin's fattier Umed and his brother Saber. Umed died leaving, besides his son Maniruddin, a daughter Mah mannessa and a widow Durgajan Bibi, that after the death of Maniruddin his share devolved upon his mother, his sister and widow and that the last‑named leased out her share to the plaintiff, a son of Asiruddin, by a registered patta. Again, after the death of Maniruddin's mother, his sister and her husband, that is to say, parents of the plaintiff, obtained possession of 8 annas share. Then Asiruddin died leaving two sons, the plaintiff, one Sayem and two daughters, and the plaintiff used to live separately from his father and possessed the eastern portion of the land of the aforesaid jama. Furthermore, Asiruddin and his younger son Sayem leased out 9 annas 3 gandas and 2 krantis share of the 8 annas of the aforesaid holding to defendant No. 1, brother of defendants Nos. 3 and 6, Naimuddin, father of defendant No. 7, and Abdul Malek, father of defendant No. 8, and they were in possession of the above lands since Kartik, 1348 B. S. The plaintiff was only in possession of the eastern portion of the suit lands and the western portion which used to be possessed by Asiruddin is now in possession of the defendants. The plaintiff grew jute and paddy on his eastern portion of the land and harvested the same and the defendants grew paddy worth only about Rs. 40 from the western portion of the suit lands. They also denied that this holding was ever possessed by the Dighapatia Estate or the said Estate ever possessed it in khas or settled it with the plaintiff. In these circumstances, the suit was, according to them, not maintainable and was barred by limitation.
4. In the trial Court the suit was treated as an ordinary money suit and was tried in the ordinary file by the learned Munsif who took the view that the plaintiff and the defendants both had title to the suit lands. He also took the view that the certificate sale did not affect the right; title and interest of the heirs of Maniruddin, since the only certificate‑debtor named therein was one Asiran Bibi described as the wife of Asiruddin., although the name of the wife of Asiruddin was Mahmannessa. Again, none of the heirs of Saber was made a party to the certificate case nor was the wife of Maniruddin made a party thereto. Thus, the property was not properly represented in the certificate proceeding. There was, therefore, no legal sale of the holding and that there is no evidence to prove that the Dighapatia Estate ever took delivery of possession or ever pos sessed in khan the lands of the said holding. The plaintiff, therefore, acquired no title by the kabuliyat, Exh. 1, purported to have been granted by the Dighapatia Estate.
5. Nevertheless, the learned Munsif, found that the plaintiff was possessing the lands in suit on behalf of the heirs of Maniruddin together with the other defendants. But, upon the evidence, he found difficulty to ascertain as to how much of such land was in the plaintiff's possession. Furthermore, that the evidence on record did not justify a finding that the defendants had forcibly cut away any paddy grown by the plaintiff. Hence, the plaintiff's suit for damages was dismissed with costs.
6. The learned Subordinate Judge found fault with this order of the learned Munsif. According to the learned Subordinate Judge, once it had been found that the plaintiff had title to and was in possession of some portion of these lands, the quit could not have been dismissed in toto. The Court had to find as to which portion was in possession of the plaintiff and whether any paddy of that portion had been cut and taken away by the defendants. Thereupon the learned Subordinate Judge entered into the evidence, although he did not launch upon a determination of the question of the validity or otherwise of the revenue sale, and upon the evidence he found that the plaintiff was all along in possession of the land and grew jute and paddy thereon since the death of Maniruddin and that the defendants in collusion cut and carried away the paddy grown by him in Agrahyan, 1363 B. S from the western portion of '45 acre of the said land but he determined the value of the paddy and straw so cut and taken away as Rs. 100 only and decreed the plaintiff's suit in part to the extent of Rs. 100 with corresponding costs.
7. It is against this decision that the defendants in the suit have come up in revision to this Court and on their behalf it has firstly been argued that the appeal to the Court below was incompetent, as the suit was a Small Cause Court suit and the learned Munsif who tried it had jurisdiction to try Small Cause Court suits upto Rs. 300; secondly, that since the plaintiff came with a story of exclusive possession under the settlement granted to him by the Dighapatia landlord and he had failed to establish this case, the plaintiff should not have been allowed to succeed on a different case ; thirdly, since the Court of Appeal below did not reverse the finding of the learned Munsif that the certificate sale was not a valid and legal sale but merely found some title and possession on some portion of the land in favour of the plaintiff by, virtue of succession from Maniruddin and, since the defendants also were found to have succeeded to some share in the estate of Maniruddin, the suit should have been held to be not maintainable without a proper partition and, lastly, no decree could have been passed in favour of the plaintiff without deciding the question of the validity or otherwise of the alleged certificate sale, without which the plaintiff's case of exclusive possession could not be accepted.
8. As against this, the learned Advocate appearing to oppose this Rule on behalf of the plaintiff has taken firstly a preliminary objection as to the maintainability of this application. It is contended on his behalf that since this was a suit for the recovery of damages on the basis of a wrongful taking, the act of taking alleged was of such a nature that it would have also amounted to an offence punishable under Chapter XVII of the Penal Code. The suit was, therefore, not cognizable by a Court of Small Causes by reason of the provisions of section 15 (1) of the said Act, read with item (if) of Article 35, Schedule II thereto.
Subsection (1) of section 15 of the Provincial Small Causes Courts Act reads as follows:
"A Court of Small Causes shall not take cognizance of the suit specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes."
Article 35 of Schedule II, item (ii), read as follows:
"A suit for compensation . . . . . . . . . .
(ii) for an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter XVII of the said Code."
My attention is also drawn to the averments in the plaint and it is pointed out that these averments alleged that the cutting and taking away of the paddy also amounted to an offence of mischief, if not exactly of theft, and hence, this was a suit which come directly within the provisions above quoted and could not be taken cognizance of at all by a Court of Small Causes. Since there was an appeal in the Court below, there should have been a second appeal in this Court and not merely an application in revision.
9. As against this, the learned Advocate appearing in support of this Rule relies on section 102 of the Code of Civil Procedure which provides that no second appeal shall lie in any suit of the nature cognizable by a Court of Small Causes when the amount or value of the subject‑matter of the original suit does not exceed Rs. 500, and it is urged that in this section the words "of the nature cognizable by Courts of Small Causes" are of a wider connotation and are not limited to suits directly cogniz able by the Court of Small Causes which under section 16 of the Provincial Small Cause Courts Act could not have been tried by any other Court having jurisdiction within that area, for, obviously in suits which are directly cognizable by a Court of the Small Causes ,section 27A' of the Provincial Small Cause Courts Act provides that a decree or order made by a Court of Small Causes shall be final and thus, apart from" the power given to the High Court under section 25 of the 'said Act to call for the records and to satisfy itself that a case decided by a Small Causes Court has been decided according to law, no appeal lies from a decree or order of a Small. Causes Court.
10. Now, according to the learned Advocate appearing in support of this Rule, if the suit does not come within the scope of Article 35 (ii) of Schedule, II of the said Act, then the suit is a suit cognizable by the Court of Small Causes and certainly a suit of the nature cognizable by the Court of Small Causes. So, in any event, a second appeal does not lie 'to this Court, as contended by the learned Advocate appearing to oppose this Rule. According to him, the suit does not come within the exception to clause (ii) of Article 35 of Schedule II of the Act but is a suit which was a Small Cause Court suit and should have been tried as a Small Cause Court suit and, as such, even the appeal in the Court below was incompetent and should be declared to have been decided without jurisdiction.
11. This necessitates a determination of the question as to whether the suit is a suit which comes within the exception provided by item (ii) of Article 35 of Schedule II of the Act.
12. The learned Advocate appearing to oppose the rule has in support of his contention relied on two decisions of the Indian High Courts and one decision of the Lahore High Court in the cases of Lalu Sardar and others v. Ohedali Mirdha (A I R 1919 Cal. 1035), Khuda Box and others v. Raghunandan Lal and others (A I R 1927 All. 381) and Kashi Ram v. Des Raj (A I R 1936 Lah. 798).
13. In the Calcutta case, the allegations in the plaint were that the defendant had forcibly, wrongfully and maliciously cut and taken away paddy grown by the plaintiff.
14. In the Allahabad case, the allegation was that the defendant had wrongfully cut and misappropriated from a plot situated in the plaintiff's zamindary the wood of a peepul tree. In this case the principle that was followed was that if the allegations in the plaint amounted to an assertion that the defend ants had committed an act which if proved against them in a Criminal Court would have rendered them liable to conviction on a charge of an offence under Chapter XVII of the Penal Code, then it would be a case which would fall within the ambit of this exception.
15. In the Lahore case again, the allegation was that the money had been stolen by the plaintiff's wife and made over to her paramour, the defendant in the suit who, in his turn, made it, over to his partner from whom the police in the course of an investigation in connection with a murder, seized the money. It‑ appears that on this charge of murder the defendant was actually tried and convicted in the Court of Session but was acquitted on appeal for the offence of murder and the Sessions Judge had directed the police to refund the money to the defendant on his furnishing security. On those facts it was held that the suit was really one for the recovery in respect of which an offence under section 379 of the Penal Code had been committed.
16. As against these, reliance has been placed on a large number of decisions in the cases of Kader Sheikh v. Najumaddi Sheikh (44 C L R 190), Damodar Jha v. Baldeo Prasad (A I R 1930 Pat. 575), Deokali v. Abhram Bali and others (A I R 1931 Oudh 49), Nilkanth Ganesh Ranadive v. Dhondya Ganu Tandlekar (A I R 1942 Bom. 316) and Bachittar Singh and others v. Rahim Bakhsh and others (A I R 1938 Lah. 759).
17. From a review of these decisions, it appears that the principle adopted in such cases is that in order to bring a suit within this ambit and to determine whether an act, sued upon, constitutes a crime or not the nature of the allegations in the plaint are only relevant and the allegations must be such that if those allegations are established, an offence under that Chapter of the penal Code would be made out. Thus, where, upon the facts as stated in the plaint, the case against the defendant is of an act merely wrongful or illegal but not necessarily penal so as to bring it within the provisions of the Penal Code, the juris diction of the Small Causes Court is not at all excluded.
18. Applying this principle to the allegations in the plaint in the present case, I find that there is no averment alleging a dishonest taking and that the present was not a case of merely mischief or of causing wrongful loss or damage to the plaintiff. In these circumstances, I am of the view that the suit does not come within the ambit of exception (ii) of Article 35 of Schedule II of the Act and that it was a suit which could have been tried in the Small Causes Court file of the learned Munsif.
19. Now, so far as the provisions of section 102 of the Code of Civil Procedure are concerned, I am also inclined to agree with the learned Advocate appearing in support of the Rue that it is of a wider scope and applies to all suits of a civil nature of which the value does not exceed Rs. 500 except those which are mentioned in Schedule II of the Provincial Small Cause Courts Act. The test, it is said, in deciding whether a second appeal lies or not, is to be found in the nature of the suit and not in the powers of the Court. Hence, whether the Court could or could not take cognizance of the case was not so material but the question was as to what was the nature of the suit.
20. The result, therefore, is that the preliminary objection is rejected.
21. I now take up for consideration the first point urged in support of the Rule, namely, as to the competency of the appeal in the Court below. Having held that the suit did not come within the exception to Article 35, Schedule II of the Provincial Small Cause Courts Act, I am bound to hold that the suit was one which was cognizable in a Court of Small Causes. The original hearing of the suit, however, is not invalidated by reason of this finding, for, it has been held in this Court in the case of Shamsuddin Pradhan v. Jasoda Kanta Sen and others ((1954) 6 D L R 277) that the failure to try it in the Small Cause Court file is an irregularity but not of such a nature as to cause a failure of justice. Although the trial is not invalidated, the character of the suit is not thereby altered and the decree is not appealable. This view finds support also from two decisions of the Calcutta High Court in the cases of Indra Chandra Mukherjee v. Srish Chandra Banerjee (I L R 40 Cal. 537) and Satyendra Nath Bisi and another v. Narendra Nath Sarkar (43 C W N 947). I, therefore, uphold also the contention of the learned Advocate that the appeal in the Court below was incompetent and the learned Subordinate Judge had no power to hear this appeal. The remedy open to the applicant was to move this Court under section 25 of the Provincial Small Cause Courts Act.
22. The question now is what is to be done at this stage. It is apparent that in a suit tried in the Small Cause Court file or in a suit of the nature of a Small Cause Court suit, the power of revision is given only to this Court and not to any subordinate Court. Therefore, the learned Subordinate Judge could no have heard this appeal nor could he treat it as a revision before him. The judgment and decree passed by the learned Subor dinate Judge must, therefore, be set aside as being without jurisdiction and this Rule made absolute.
23. This will not, in my opinion, however, preclude the appellant in the Court below from invoking the provisions of section 14 of the Limitation Act, if necessary, for moving this Court again under section 25 of the Provincial Small Cause Courts Act against the order of the Munsif who tried the suit.
24. I accordingly make this Rule absolute but, having regard to the special circumstances of this case, I make no order as to costs.
R. B. A. Rule made absolute.