1. This is a plaintiff's application in revision under Section 115, Civil P.C. The suit out of which the application arises was instituted by the plaintiff for (1) a declaration that he was not carrying on business within the limits of the Town Area Committee of Saidpur in the district of Ghazipur and was therefore not liable to pay tax, (2) for the refund of a sum of Rs. 143-14-0 illegally realised from the plaintiff by the Town Area Committee on account of tax, plus Rs. 35 as interest, and (3) for release of the goods belonging to the plaintiff which had been attached by means of a distress warrant. The suit was dismissed by the trial Court. The plaintiff - the applicant before me - appealed, but on the date of hearing neither he nor his counsel was present and the Court dismissed the appeal.
2. The plea taken before me by learned Counsel for the applicant is that the learned Judge of the appellate Court dismissed the appeal on merits and thereby acted without jurisdiction; he ought to have dismissed the appeal for default under Order 41, Rule 17, Civil P.C. Learned Counsel for the opposite party-concedes that the appeal was dismissed on merits and that it ought to have been dismissed for default under Order 41, Rule 17, Civil P.C., but he has advanced a preliminary objection to the effect that a second appeal from the decree of the appellate Court was competent to the High Court and therefore no revision lies. The answer which is given to this plea by learned Counsel for the applicant is that this was a suit of a small cause court nature and therefore a second appeal was barred under Section 102, Civil P.C. Learned Counsel for the opposite party meets this contention by pleading that this was not a suit of a small cause court nature at all; it was a suit which is excepted from the jurisdiction of the Small Cause Court under Article 19 of Schedule 2, to the Provincial Small Cause Courts Act, which provides that a suit for a declaratory decree is not triable by a Small Cause Court.
3. It is perfectly true that the Small Cause Court was not competent to try this suit in view of the fact that there was a prayer for a declaration, and it was no doubt for that reason that the suit was instituted as a regular suit in the Munsif's Court. On the other hand, it seems to me that the applicant's claim was substantially a claim for refund of the tax which, according to him, had been wrongfully realized and for release of the property which had been wrongfully distrained; but it was not possible for him to obtain these reliefs without also adding an incidental prayer for a declaration. In respect to this relief he paid no separate court-fee. In Veera Raghava Iyengar v. Vellai Mooppai ('12) 17 I.C. 704 a suit was instituted for recovery of rent along with a prayer for a declaration of right, and a Bench of the Madras High Court held that this was a suit of a small cause court nature and therefore no second appeal lay. The judgment is very short and may be usefully reproduced. It reads as follows:
The preliminary objection is taken that no second appeal lies in this case. We are of opinion that this contention should be upheld. The suit was one merely for recovery of rent. It is contended that the first prayer in the plaint is that the plaintiffs right to the melwaram of the land should be declared; but this can be treated as only incidental to the prayer for the recovery of rent. The cause of action, as stated in para. 10 of the plaint, is merely the non-payment of rent. No separate court-fee was paid for the declaration. There is absolutely nothing anywhere in the plaint to suggest that the prayer for declaration was treated as an independent one. The second appeal is dismissed with costs.
4. In Allah Bux v. Nurul Hasan ('31) 1931 A.L.J. 967, a Small Cause Court under Section 23, Small Cause Courts Act, returned a plaint for presentation to the proper Court, the reason being that a question of title appeared to be involved. It was held by a Bench of this Court, Sulaiman A.C.J. and Bajpai J., that the suit was nevertheless a suit of a small cause court nature and a second appeal was therefore barred under Section 102, Civil P.C. Sulaiman A.C.J., who delivered the judgment, said:
The transfer of a Small Cause Court suit under Section 23 makes it a regular suit and a first appeal no doubt lies. But the nature of the suit continues to be a small cause court one and a second appeal is barred under Section 102, Civil P.C. The mere fact that a question of title was considered to have been involved in the case or has been incidentally decided would not permit of a second appeal.
5. In my opinion the suit to which this application relates was a suit of a small cause court nature and therefore no second appeal lay. This application in revision is therefore competent. For the reasons given, I allow this application with costs and set aside the order of the lower appellate Court. Following the procedure which was adopted by a Bench of this Court in Nasir Khan v. Itwari ('24) 11 A.I.R. 1924 All. 144, I hereby pass the order which the appellate Court ought to have passed; that is to say. I dismiss the appeal to that Court for default. If the appellant desires to have his appeal restored, he must apply to the Court below Under Order 41, Rule 19, Civil P.C.