1. This is an application in revision against an order made by the Subordinate Judge of Mahad dismissing the plaintiff's suit with costs. The learned Judge tried the suit as a small cause suit, and the only point open on this revision application is whether he had jurisdiction to hear the suit as a small cause suit.
2. In the suit the plaintiff claims Rs. 15 as damages incurred by him by reason of the defendant having wrongfully taken fruit from the plaintiff's tree. The pleadings show that there was a dispute as to the ownership of the tree from which this fruit was taken, and the suit is in its nature a civil suit for trespass, and as the damages claimed are only Rs. 15, prima facie it would be triable as a small cause suit. But it is argued that it is not so triable, because it falls within Article 35, Clause (ii), of the second schedule to the Provincial Small Cause Courts Act. That schedule contains exceptions to cases falling within the Act, and the particular item makes ah exception of a suit for compensation for an act which is, or, save for the provisions of Ch. IV of the Indian Penal Code, would be an offence punishable under Ch. XVII of the Code. Chapter IV of the Penal Code deals with exceptions with which we are not concerned in the present case. Chapter XVII deals with offences against property, and it is argued that this act by the defendant of wrongfully taking the fruit of the plaintiff's tree is an offence punishable under Ch. XVII, since it either amounts to theft or criminal trespass. But, in my opinion, this being a civil suit for damages for trespass, it was not necessary to allege in the plaint, nor has it been alleged, that there was any dishonest intention which would be necessary to make the act of the defendant one of theft; nor is it alleged that there was any intention to insult, intimidate or annoy, which would be necessary to constitute criminal trespass. It was not necessary for the purposes of this case to allege any of the ingredients which would constitute a crime.
3. Presumably this case was referred to a bench, because the learned Judge, who referred it, did not agree with the decision of Sir Norman Macleod sitting alone in Ayub Haji v. Jainuddin : (1926)28BOMLR540 . In my opinion, that case, which is indistinguishable from the present case, was wrongly decided. The learned Chief Justice held that the suit, which was one (like the present) for damages for trespass by removing fruit from a tree, and in which the only question at issue was as to the title to the tree, could not be tried by a Court of Small Causes. The only reason the learned Chief Justice gave was that he thought it undesirable to extend the jurisdiction of the Small Cause Court to cases relating to immoveable property by giving a limited interpretation to suits mentioned in the second schedule to the Act, which really means that the learned Chief Justice did not agree with the policy of the Legislature. But it is the policy of the Legislature which this Court has to enforce, and I entertain no doubt that this suit was triable by a Court of Small Causes. We were referred to a later decision of this Court in Sakhya v. Sadashiv (1929) 32 Bom. L.R. 181 in which the learned Judges pointed out that the question whether an act sued upon constituted a crime must depend on the nature of the pleadings, and particularly the plaint. I agree with that view, subject to this qualification, that I think that for this purpose a consideration of the plaint must be confined to what is relevant. If a plaintiff inserts in his plaint irrelevant allegations merely in order to show that the act complained of amounts to crime, I should say that those irrelevant assertions might properly be struck out, and the Court should pay no regard to them. I appreciate that there may be cases of trespass in which it would not be irrelevant to assert dishonest intention in order to found a claim for aggravated damages, but normally in a civil suit for trespass allegations which tend to show that the act complained of amounted to a crime would be irrelevant. However, in the present plaint there was no such allegation. The application fails and must be dismissed with costs.
4. I agree.