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Nannu Prasad Vs. Sukh Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All666
AppellantNannu Prasad
RespondentSukh Lal
Excerpt:
act no. ix of 1887 (provincial small courts act), schedule ii, article (31) - small cause court--jarisdiction--suit by joint owner to recover rent of a house received by the other joint owner--money had and received--revision--objection to jurisdiction not raised in court below. - .....placed on rameshar singh v. durga das (1901) i.l.r. 23 all. 437, uzir v. hari charan pal (1916) 37 indian cases, 671 and nand rani v. swashwaneswar mukerji (1910) 8 indian cases, 270. it seems to me that it is by no means clear that this case comes within the scope of those rulings. it appears (in this particular case that the rent had been paid for many years by the tenant to the uncle. i therefore do not see how it can be said that the uncle ' had wrongfully received ' the rent, the subject matter of this suit. it seems to me to be an ordinary suit for money had and received. in any case, i feel that substantial justice has been done and the only result of this application would be further litigation, and that between an uncle and a nephew, and i would hesitate to re-open the matter.....
Judgment:

Ryves, J.

1. This application arises out of a suit brought by a nephew against his uncle and a tenant. It appears that a house which jointly belonged to the nephew and uncle had for many years been rented by defendant No. 2 and the whole rent used to be collected by the uncle. No doubt, the nephew was entitled to a half share. This suit was brought to recover Rs. 130, being half of Rs. 260, which the uncle had been paid by the tenant. The suit was filed in a Court of Small Causes. Not only was no objection taken to the jurisdiction of that court, but in paragraph 8 of the written statement the uncle specifically stated that he raised no objection to the court trying the suit Of course it is not open to parties to waive a question of (sic)jurist diction, but for reasons to be stated later, I think this matter is of some importance. The court, from the judgment which it has recorded, tried the case apparently very fully, and came to what seems to me a very just decision. Having lost the suit in that court, the uncle applies to this Court for revision and for the first time raises the objection that the court below had no jurisdiction to try the suit, and he relies on article (31) of the schedule to the Act (Act No. IX of 1887). It is only the second part of that article which could apply, that is to say, ' a suit for the profits of immovable property belonging to the plaintiff which has been wrongfully received by the defendant ' is (sic)barced from the cognizance of a Court of Small Causes. Reliance has been placed on Rameshar Singh v. Durga Das (1901) I.L.R. 23 All. 437, Uzir v. Hari Charan Pal (1916) 37 Indian Cases, 671 and Nand Rani v. Swashwaneswar Mukerji (1910) 8 Indian Cases, 270. It seems to me that it is by no means clear that this case comes within the scope of those rulings. It appears (in this particular case that the rent had been paid for many years by the tenant to the uncle. I therefore do not see how it can be said that the uncle ' had wrongfully received ' the rent, the subject matter of this suit. It seems to me to be an ordinary suit for money had and received. In any case, I feel that substantial justice has been done and the only result of this application would be further litigation, and that between an uncle and a nephew, and I would hesitate to re-open the matter unless I am forced to, There is the authority of this Court in Bam Lal v. Kabul Singh (1902) I.L.R., 25 All., 135, and I would refer also to the case reported (in 37 Indian Cases, page 991 and 29 Indian Cases, 566) which give me a discretion. As I have already stated, I doubt as to whether article (31) strictly applies, and having also, I think, a discretion in the matter, I decline to interfere. The result is that the application is rejected with costs.


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