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Jodha Bijal Vs. Maganlal Chhaganlal Desai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 429 of 1928
Judge
Reported inAIR1930Bom80; (1929)31BOMLR1307
AppellantJodha Bijal
RespondentMaganlal Chhaganlal Desai
Excerpt:
.....schudle ii, clause 35(j)-suit to recover rent levied in excess-claim for interest over the amount-suit of a small cause court nature-trial of the suit as an ordinary suit by a judge having no small cause court powers-high court-revision-trial set aside and suit ordered to be re-heard-civil procedure code (act v of 1908), section 115.;the plaintiff, a tenant, filed a suit to recover the excess of rent) exacted from him by his landlord (defendant) with interest, in a court of a subordinate judge with small cause court powers. the subordinate judge decided to try the suit as an ordinary suit, and transferred it to another judge who had no small cause court powers. the second judge tried the suit as an ordinary suit, and decreed it. on appeal, the district judge reversed the decree. the..........who directed that it should be tried as an ordinary suit. subsequently it was transferred to the joint subordinate judge who had no small causes court powers and he tried it as an ordinary suit. we think the cause of action was not one under the second schedule, clause 33 (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).3. the joint subordinate judge decreed the plaintiff's claim. the district court reversed his decree. the plaintiff applies here in revision. we think that on the authority of koilipara seetapathy v. kankipati subbayya i.l.r.(1908) mad. 323parameshwaran nambudiri v. vishnu embrandri (1904) i.l. mad 478 and abdul majid v. bedyadhar saran das i.l.r(1916) ......
Judgment:

Norman Kemp, Kt., A.C.J.

1. These are revision applications against the decision of the District Judge of Broach and Panch Mahals reversing the decision of the Joint Second Class Subordinate Judge of Godhra who passed a decree in favour of the plaintiffs for the excess rent recovered from them. The plaintiffs are the tenants and the defendants the Inamdars of the village. All the suits and appeals were heard together. Suit No. 10 of 1926, out of which revision application No. 429 of 1928 arises, is the main appeal and our decision in it applies to all.

2. The facts have been stated at considerable length in the Judgments of the lower Courts. We are of opinion that Suit No. 10 of 1926, out of which revision application No. 429 of 1929 arises, was for recovery of the amount paid under threat of seizure plus the penalty and interest by way of damages for the detention of the money. This being so, it was a suit cognizable by a Court of Small Causes. The plaintiff filed it as a Small Causes Court suit before the Subordinate Judge with Small Causes Court powers who directed that it should be tried as an ordinary suit. Subsequently it was transferred to the Joint Subordinate Judge who had no Small Causes Court powers and he tried it as an ordinary suit. We think the cause of action was not one under the Second Schedule, Clause 33 (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).

3. The Joint Subordinate Judge decreed the plaintiff's claim. The District Court reversed his decree. The plaintiff applies here in revision. We think that on the authority of Koilipara Seetapathy v. Kankipati Subbayya I.L.R.(1908) Mad. 323Parameshwaran Nambudiri v. Vishnu Embrandri (1904) I.L. Mad 478 and Abdul Majid v. Bedyadhar Saran Das I.L.R(1916) . All. 101 the procedure which we might have followed would have been to set aside the lower appellate Court's decree. But sitting as we are in revision we think that the trial of the suit as an ordinary suit has prejudiced the parties because the Joint Subordinate Judge was not a Judge of sufficient seniority to be entrusted with Small Causes Court powers and therefore not a proper tribunal for the trial of this suit. We do not mean to infer from this that he had no jurisdiction to try the suit because failure to comply with Section 16 of the Provincial Small Causes Courts Act seems to us to be merely a defect in procedure in proceeding in a Court other than the Small Causes Court having jurisdiction to try the case. Had the suit been tried as a Small Causes Court suit there would have been no appeal from the decree under Section 27 of the Small Causes Courts Act. But the suit would then have been tried by a Judge invested with Small Causes Court powers and therefore one whose decision the Legislature invested with finality.

4. We, therefore, set aside the orders of the two Courts below and direct that the plaint be returned to the proper Court for trial. Each party to pay his own costs.


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