1. This application is for the revision of a decree and order of the Judge of the Small Cause Court at Orai, decreeing the suit of the plaintiff opposite party. The suit was for a sum of Rs. 240, said to be due as the rent of a shop and the plaintiff's case was that the business of a partnership had been carried on in that shop and that rent had always been Rs. 200, but that since his illness the defendant had been dishonestly carrying on his own business in the shop and had become liable for rent. The defendant raised the question of title to the shop, alleging that the shop had really belonged to his father, but that he had executed a fictitious sale-deed in favour of the plaintiff s father. The trial Court however without deciding this question of title to the shop, found that the defendant-applicant had been holding the shop from the plaintiff and had been paying rent to him as his tenant, and it therefore decreed the suit.
2. It is claimed in revision that as the question of title was raised the trial Court was bound either to decide it or to return the plaint for presentation in the proper Court under Section 23, Provincial Small Cause Courts Act, 1837. No doubt it is true that a question of title to immovable property is not one that can be decided in the Small Cause Court and I have been referred to the case of Alagirisami Naiker v. Inhasi Udayan (1881) 3 Mad. 127, to show that if a bona fide question of title arises incidentally in a Small Cause Court suit, the Court should determine it. The Court however evidently did not consider that the question was a bona fide one, or that it was necessary for the purposes of the suit to decide it. Under Section 23 of the Act, a Small Cause Court is given a considerable discretion and in the present case it did not consider that it was necessary to decide the question of title, and in the circumstances I cannot hold that it acted illegally. Another plea has been raised, and that is that according to the plaint the parties were partners and the partnership business was being carried on in the shop. The defendant could therefore not be made personally liable for the rent of the shop. The case set up in the plaint is not clearly this, that the business of the partnership was being carried on in the shop for the period of the suit. Moreover the defence that the defendant was not liable personally for rent for this reason was never set up in the trial Court. It has only been added as an additional ground in the application for revision, I do not think therefore that it would be proper to take notice of it at this stage. The result is that the application fails and is dismissed with costs.