1. This appeal arises out of a suit filed by the plaintiff for recovery of Rs. 380-7-0 which, according to him, was levied by the Municipal Borough of Dharwar by a distress warrant illegally. The plaintiff also claimed interest on this amount of Rs. 380-7-0. The trial Court decreed the claim of the plaintiff to the extent of Rs. 178-12-0. The plaintiff appealed to the District Court, and that Court confirmed the decree of the trial Court. From that decree the appellant has tome to this Court in second appeal.
2. A preliminary point has been raised on behalf of the respondent that no second appeal lies inasmuch as the subject-matter of this suit does not exceed Rs. 500 and it is a suit of a nature cognisable by the Court of Small Causes. Now looking at the frame of the suit, it is clear to my mind that what the plaintiff asks in this suit is for a refund of the; amount recovered by the Municipality illegally from him, and his suit clearly falls under Section 72 of the Indian Contract Act, 1872, for return of the money paid under coercion. If the plaintiff's suit had been confined merely to the refund of this amount, no difficulty would have arisen because the suits that are excluded from the jurisdiction of the Small Causes Court are enumerated in the Second Schedule to the Provincial Small Cause Courts Act, and the only relevant article is Article 35(j) which provides that a suit for compensation for illegal, improper or excessive distress, attachment or search, or for trespass committed in, or damage caused by, the illegal or improper execution of any distress, search or legal process is a suit which. is excepted from the cognizance of a Court of Small Causes. Now to the extent that the plaintiff's suit is for the refund of the amount paid by him under illegal distress, it is clearly not a suit for compensation for illegal distress or for damages caused by illegal distress, and, as I said, if the plaintiff's suit had been confined to that claim, there would have been no difficulty in deciding that that was not a suit which was excluded from the cognizance of the Small Causes Court. But the difficulty arises from the fact that in addition to the claim for refund of the distress amount the plaintiff has also asked for interest on the amount. In the trial Court an issue was raised to the effect whether the plaintiff was entitled to claim interest by way of damages; if so, at what rate? And the issue was answered by the trial Court that the plaintiff was entitled to claim six per cent. interest per annum on Rs. 178-12-0 by way of damages.
3. Now the short question that arises in this appeal is whether the plaintiff's claim for interest is a claim in the nature of compensation for illegal distress or for damage caused by illegal distress. To my mind what the plaintiff is claiming is interest on the amount which he paid to the Municipality under coercion and because he was deprived of the use of that money. It is interest claimed for wrongful detention of the money by the Municipality. If that be so, then the plaintiff's claim for interest would not fall under Article 35(j) of the Second Schedule to the Provincial Small Cause Courts Act, and the suit being in the nature cognisable by the Court of Small Causes and the subject-matter of the suit being under Rs. 500, no second appeal would lie. The difficulty is caused by two conflictinr Court, both decisions of a division bench. The first decision is reported in Kalyan Municipality v. Govind (1924) 27 Bom. L.R. 447. That was a decision of Sir Norman Macleod, Chief Justice, and Mr. Justice Crump. In that case the plaintiff filed a suit against the Municipality of Kalyan for the refund of Rs. 563-0-1 levied from him by the Municipality for general sanitary cess and shop tax in regard to his property situated within the Kalyan Municipal area. He also claimed Rs. 6-10-9 as interest on the above sum to the date of the suit at the rate of six per cent. per annum. Sir Norman Macleod, delivering the judgment of the Court, took the view that if the plaintiff had confined his claim to the amount taxed and illegally recovered by him, then it would have been a suit triable by the Small Causes Court, and consequently there would be no second appeal. But the plaintiff asked for interest on that sum and that could only have been awarded as damages or compensation for the amount having been illegally recovered from him. Now with great respect to the learned Chief Justice, the interest claimed was not for compensation for illegal distress or for damage caused to the plaintiff for detention of the money recovered by the Municipality; the interest claimed, as the facts of the case show, was on the sum of Rs. 363-0-1, which was the amount which the plaintiff claimed as refund, and the only basis of that claim was and could be that the amount had been wrongfully detained by the Municipality of Kalyan. The other decision is also a decision of a division bench reported in Jodha v. Maganlal : AIR1930Bom80 . The Court there consisted of Sir Norman Kemp, Acting Chief Justice, and Mr. Justice Murphy; and the Acting Chief Justice delivered the judgment of the Court. The question there also was whether the suit filed was or was not cognizable by the Small Causes Court; and Sir Norman Kemp, Acting Chief Justice, at p. 1309 of his judgment states:
We think the cause of action was not one under the Second Schedule, Clause 33(j), [this is apparently a mistake for 35(j)] merely because there was a claim for interest. The interest was claimed by way of damages for detention of the money and not as compensation under Clause (j).
With great respect to the learned Chief Justice Sir Norman Macleod, I feel that the view taken by Sir Norman Kemp is the more acceptable one. In my opinion where a plaintiff files a suit for refund of money paid under an illegal distress and claims interest thereon, his claim is not for compensation under Clause 35(7) but it is by way of damages for detention of the money recovered by the Municipality. As far as I can see, the facts in Kalyan Municipality v. Govind and Jodha v. Maganlal were common and so are the facts in the case before us. Under those circumstances I think that the decision in Kalyan Municipality v. Govind was wrongly decided, and I prefer the decision of Sir Norman Kemp reported in Jodha v. Maganlal. That being the position, it is clear that no second appeal lies under Section 102 of the Civil Procedure Code.
4. The suit was tried by the Extra Joint Subordinate Judge at Dharwar as an ordinary suit and not as a Small Causes Court suit and the learned Judge did not have Small Causes Court powers. The suit having been tried as an ordinary suit, an appeal was preferred to the lower appellate Court and in the nature of things an appeal did lie to the lower appellate Court. Therefore the only way we could entertain this appeal which has been filed as a second appeal would be by converting it into a revisional. application under Section 115 of the Civil Procedure Code. But it seems to me that that procedure would prejudice the appellant because if the suit had been tried by a Judge having Small Causes Court powers, the appellant would have had the right to come to the High Court under Section 25 of the Provincial Small Cause Courts Act. The provisions of Section 25 of the Provincial Small Cause Courts Act are much wider than the provisions of Section 115 of the Civil Procedure Code; and by the suit not having been tried by a Judge having the powers of a Small Causes Court, the appellant has been deprived of that right of coming to this Court under Section 25 of the Provincial Small Cause Courts Act. Under similar circumstances Sir Norman Kemp in the case to which I have just referred remanded the suit to the trial Court but directed that the suit should be tried by a Judge invested with Small Causes Court powers. I am, therefore, of opinion that in this case also the suit should be remanded to the First Class Subordinate Judge at Dharwar who, I understand, is invested with Small Causes Court powers, for trial on merits.
5. As regards the costs of the appeal, as there were two conflicting decisions of our Court and as the matter is not free from difficulty, I think the fairest order to make with regard to the costs of this appeal would be that the costs of this appeal will be costs in the trial Court and will abide the result of the trial.
6. I agree and should like to add a few words.
7. It was possible for the plaintiff to so frame his prayer in the plaint as to indicate that what he was claiming was compensation for the amount having been wrongfully recovered from him under an illegal distress. In that case the measure of the damage suffered by him might have been the interest which he would have earned but for the distress and the loss of that interest might be attributed to the distress. A claim for compensation for such loss might fall under article 35(j) of the second schedule to the Provincial Small Cause Courts Act. But in this case the plaintiff has not asked for such compensation, but for interest on the amount illegally recovered from him. That claim is clearly in respect of wrongful detention of his money. The plaintiff has specifically stated in the plaint that he wants to reserve his right to file a separate suit for damages. Although the prayers in the plaints in the two conflicting cases of Kalyan Municipality v. Govind (1924) 27 Bom. L.R. 447 and Jodha v. Maganlal : AIR1930Bom80 were almost identically worded, different interpretations were placed upon them in the two cases. In the former case Macleod C.J. regarded a claim for interest as a claim for damages or compensation 'for the amount having been illegally recovered from him', whereas in the latter case Kemp Ag. C.J. regarded the claim as damages for detention of the money and not as compensation under Clause (j). The real question in such cases is whether damages are claimed for wrongful deprivation of the use of the money by the plaintiff and interest is mentioned only as a method of measuring those damages, or whether interest is claimed on the money wrongfully detained by the defendant. On a correct reading of the wording of the plaint in the present case I agree that the suit as constituted falls under the latter class and is cognisable by the Court of Small Causes. I, therefore, agree with the order proposed by my learned brother.
8. I agree with the judgments delivered by my learned brothers and have nothing more to add.