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Chingan Gir and anr. Vs. Babu Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.322
AppellantChingan Gir and anr.
RespondentBabu Lal
Excerpt:
provincial small cause courts act (ix of 1887), scheduled ii, clause(11) - suit for damages for the cutting of plaintiff's trees by defendant--defendant not claming trees as his own but alleging non-existence of trees--jurisdiction of small cause court--plea of jurisdiction--duty of court--high court's power to interfere--revision--practice. - .....rupees, shall be cognizable by a court of small causes'. the second schedule clause (6) exempts a suit by mortgagee of immovable property for foreclosure or for sale from the cognizance of a small cause court; clause (10) excepts a suit to restrain waste and clause (11) a suit for the determination or enforcement of any right to or interest in immovable property. the present suit on the face of it did not come within any of these exceptions but was a suit simply for damages for the alleged cutting of plaintiff's trees by the defendant. the defence did not bring in issue the determination of any right to immovable property. the defendant did not claim that trees which had belonged to the plaintiffs were his by virtue of the mortgage or otherwise. the defence was that there were no trees.....
Judgment:

1. This application in revision has been referred to us by a Judge of this Court. The plaintiff instituted a suit in the Court of Small Causes at Allahabad claiming damages because the defendant had cut down certain trees belonging to him and converted the same to his own use. The defendant pleaded in the Small Cause Court that the plaintiffs had no trees and that he did not cut any down. The Small Cause Court found that the defendants had cut down trees belonging to the plaintiffs of the value of Rs. 100 and gave a decree for that amount and costs. The grounds of revision are that the relation of mortgagee and mortgagor exists between the defendants and the plaintiffs and that the defendant was the mortgagee in possession. It was contended on behalf of the defendant in this Court that the suit was altogether premature, and that the question of damage alleged to have been done by him must be decided when the mortgagor was redeeming. In connection with this argument Section 76 Clause (e) and the last part of the same, Transfer of Property Act, were quoted. It is strongly contended that the suit was not cognizable by a Small Cause Court, and that there was no jurisdiction to try it.

2. Section 15 of Act IX of 1887 provides that a Court of Small Causes shall not take cognizance of the suits specified in the second Schedule as suits exempted from the cognizance of the Court of Small Causes. Clause (2) of the same provides that 'subject to the exception specified in the schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees, shall be cognizable by a Court of Small Causes'. The second Schedule Clause (6) exempts a suit by mortgagee of immovable property for foreclosure or for sale from the cognizance of a Small Cause Court; Clause (10) excepts a suit to restrain waste and Clause (11) a suit for the determination or enforcement of any right to or interest in immovable property. The present suit on the face of it did not come within any of these exceptions but was a suit simply for damages for the alleged cutting of plaintiff's trees by the defendant. The defence did not bring in issue the determination of any right to immovable property. The defendant did not claim that trees which had belonged to the plaintiffs were his by virtue of the mortgage or otherwise. The defence was that there were no trees and none cut down. The jurisdiction of the Court of Small Causes was not in issue, so far as the record and any other information which we have is concerned. The question was not raised until the application was made in revision. The property involved was of a very small value. The mortgage, so far as we can ascertain, was a mortgage of certain fruit trees. The mortgage deed, which the defendant relies on, has been, according to the evidence of the defendant, destroyed.

3. We are not bound in every case to interfere in revision. The facts and circumstances of the present case are extremely doubtful. We are left in the dark as to the provisions and terms of the mortgage deed. We do not think that this is a case in which this Court ought to interfere. At the same time we wish to say that a Small Cause Court should be careful not to entertain suits which it is forbidden to entertain by the provisions of the Act under which they act. Whenever it is shown to a Court of Small Causes that a suit is inreality one, which it is forbidden to take cognizance of, it should at once stop farther proceedings. We dismiss the application with costs.


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