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Samir Khan and ors. Vs. Basi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All821; 87Ind.Cas.659
AppellantSamir Khan and ors.
RespondentBasi Ram and ors.
Excerpt:
- - 1 as earnest money and had failed to pay the balance......of rs. 25 per year as malikana and the decision of the court was that such a suit was not a suit cognizable by the mofussil small cause courts act of 1865. that act of 1865 is no longer in force and the full bench ruling was given on the language of that act. the case of the calcutta high court was that of sitab rai v. dubai nagesia (1907) 6 c.l.j. 218. the suit, as it was brought, contained a prayer for a declaration that a certain forest was a reserve forest. that itself would exempt the suit from the jurisdiction of a court of small causes. the head-note shows that their lordships laid down that no second appeal lay under section 586 of the civil p.c., where the original suit was of the nature cognizable in a court of small causes.5. the question whether a suit is cognizable by.....
Judgment:

Mukerji, J.

1. No second appeal lies in this case. The suit was brought by the plaintiffs-respondents on the allegation that they were the owners of certain groves, that they had sold the crop of the groves for a particular season to the defendants-appellants for a sum of Rs. 50, that they had paid Rs. 1 as earnest money and had failed to pay the balance.

2. The suit succeeded partly in the Court of first instance and wholly in the Court of first appeal.

3. The defence was that the defendants were the occupancy tenants of the land and the grove, and they never purchased any crop.

4. The first question that struck me at hearing of the appeal was that no second appeal lay to this Court. The learned Counsel for the appellants has relied on two cases: one decided by this Court and the other decided by the Calcutta High Court. The case of this Court was that of Churaman v. Balli (1887) 9 All. 591. In this case the suit was for recovery of Rs. 25 per year as Malikana and the decision of the Court was that such a suit was not a suit cognizable by the Mofussil Small Cause Courts Act of 1865. That Act of 1865 is no longer in force and the Full Bench ruling was given on the language of that Act. The case of the Calcutta High Court was that of Sitab Rai v. Dubai Nagesia (1907) 6 C.L.J. 218. The suit, as it was brought, contained a prayer for a declaration that a certain forest was a reserve forest. That itself would exempt the suit from the jurisdiction of a Court of Small Causes. The head-note shows that their Lordships laid down that no second appeal lay under Section 586 of the Civil P.C., where the original suit was of the nature cognizable in a Court of Small Causes.

5. The question whether a suit is cognizable by a Court of Small Causes or not must depend on the nature of the suit and not on the nature of the defence set up. Under Section 15 of the Provincial Small Cause Courts Act, 1887, all suits of a civil nature of value not exceeding Rs. 500 would be cognizable by a Court of Small Causes provided they are not specifically exempted from the cognizance of the Court. No clause in the second Schedule has been pointed out to me as showing that a suit of the nature of the present one was exempted from the cognizance of the Court of Small Causes. The suit was based on an allegation of pure contract and it was, therefore, cognizable by a Court of Small Causes. It is true that when an intricate question of title to property arises, a Court of Small Causes is authorised by Section 23 of the Provincial Small Causes Courts Act to return the plaint for presentation to a regular Court. But from this it does mot follow that merely because a question of title is raised in defence the character of the suit is changed.

6. Section 102 of the Civil P.C., is clear in its terms and lays down that no second. appeal shall lie in any suit of the nature cognizable by Courts of Small Causes where the amount or value of the subject-matter does not exceed Rs. 500. There is no proviso attached to the section such as would exempt cases, in which a question of title has been raised by the defendant, from the operation of the section.

7. I have no doubt, therefore, that no second appeal lies and the present appeal is accordingly dismissed under Order 51, Rule 11, Civil P.C.


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