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Bhikaji Hari Chaubal Vs. Radhabai Sitaram Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 181 of 1911
Judge
Reported in(1913)15BOMLR803
AppellantBhikaji Hari Chaubal
RespondentRadhabai Sitaram Kulkarni
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1905), section 102 - suit to recover share in kulkarni vatan - suit of small cause court nature - second appeal - high court.;the plaintiff sued to recover rs. 80, her share in a kulkarni a7atan which was received by the defendant (also a sharer) who had not paid the plaintiff her share for a certain number of years. the defendant admitted that the plaintiff had a share and that he had received it, but disputed only the quantum of the share. her claim was decreed in both the lower courts. on second appeal, she contended that no second appeal lay to the high court :-;that the suit was for money had and received by the defendant for the use of the plaintiff ; that the claim was of a small cause court nature; and that the claim being under rs. no second appeal..........the profits and admits that the plaintiff is a sharer, but only disputes the quantum of her share. the suit is, therefore, a suit for money had and received by the defendant for the use of the plaintiff: see harmukhgauri v. harisuhhprasad i.l.r. (1888) bom. 191 and damodar gopal dikshit v. chintaman balkrishna karve i.l.r. (1892) bom. 42. the claim was, therefore, a claim which could have been tried in a small cause court, assuming there was one having jurisdiction where the suit was instituted, and the claim being under rs. 500, it is a claim of a small cause court nature in respect of which no second appeal lies. we have been asked by the appellant's pleader to treat it as an application under section 115 of the civil procedure code, 1908. but if we were to accede to that.....
Judgment:

Basil Scott, Kt., C.J.

1. This is a suit by the plaintiff against the defendant alleging that they are both sharers in a Kulkarni Vatan, and that the defendant has received the profits of the office, and has not paid to her share for a certain number of years. The defendant admits that he has received the profits and admits that the plaintiff is a sharer, but only disputes the quantum of her share. The suit is, therefore, a suit for money had and received by the defendant for the use of the plaintiff: see Harmukhgauri v. Harisuhhprasad I.L.R. (1888) Bom. 191 and Damodar Gopal Dikshit v. Chintaman Balkrishna Karve I.L.R. (1892) Bom. 42. The claim was, therefore, a claim which could have been tried in a Small Cause Court, assuming there was one having jurisdiction where the suit was instituted, and the claim being under Rs. 500, it is a claim of a Small Cause Court nature in respect of which no second appeal lies. We have been asked by the appellant's pleader to treat it as an application under Section 115 of the Civil Procedure Code, 1908. But if we were to accede to that request it would not assist his client because Mr. Halbhavi, who first entertained the suit, had no Small Cause Court jurisdiction. Therefore, the first appeal was entertained by the appellate Court with jurisdiction. We dismiss the appeal with costs.


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