Shamsher Bahadur, J.
1. This petition is directed against the appellate judgment of the Senior Subordinate Judge, Delhi, who has affirmed in appeal the order of the trial Court directing the plaintiff to present the plaint before a Court of competent jurisdiction.
2. The suit was filed by the petitioner Prem Parkash for recovery of a sum of Rs. 600/- in respect of arrears of rent of shop No. 1864. The shop was under the tenancy of the plaintiff on a monthly rent of Rs. 106/4- with effect from 6th of August 1947. The rent was payable to the Custodian who was the landlord of the shop. The plaintiff entered into a partnership with the defendant for business which was to be carried on in the shop.
The partnership carried on business from 5th of January, 1948, till 16th of September, 1951, when it was dissolved. According to the plaint, it was agreed between the parties that whatever demand was made by the Custodian for rent would be shared equally between them. Furthermore, if one of the two parties to the agreement was made to pay the rent, the other party would be entitled to recover his share from the party who did not pay. The plaintiff paid a sum of Rs. 1200/- on 31st of August 1952 to the Custodian as rent and the present suit was instituted by him on 21st of July 1955 for recovery of Rs. 600/- from the defendant.
3. The trial Court holding that the suit was cognizable by the Court of Small Causes, directed the plaint to be returned for presentation to that Court. The plaintiff having failed in his appeal has not come in revision to this Court from this order.
4. Under Article 41 of Schedule II of the Provincial Small Cause Courts Act, 'a suit for contribution by a sharer in joint property in respectof a payment made by him of money due from a co-sharer......' is excepted from the purview ofthe Court of Small Causes, The lower appellate Court was swayed by the consideration that at the time when the suit was brought the partnership was not in existence and consequently there was no joint property in respect of which the contribution could have been claimed under Article 41.
In this view of the matter, the suit was held to be cognizable by the Court of Small Causes. I am of the view that both the Courts below have adopted an erroneous approach in coming to the conclusion that the suit is triable only by a Court of Small Causes. According to the averments in the plaint, which alone are to be taken into consideration in deciding the question of jurisdiction, the partnership was to carry on business in the shop, which though under the tenancy of the plaintiff was in fact a joint property.
The joint business of partnership was being carried on in the shop and there was an agreement that the rent which would be payable to the Custodian on demand by him or otherwise was to be shared equally between the partners. In fact the plaintiff was suing for his share of contribution from the defendant who admittedly according to the allegations in the plaint had not made payment of his share.
5. It was held by Sundara Aiyar, J., in G. Venkataratnam v. V. Venkataratnam, 15 Ind Cas 218 (Mad) that 'in the case of a dissolved partnership, a suit for contribution in maintainable by a partner who has paid the whole of the debt'. Mr. Yogeshwar Dayal for the respondent, on the other hand, has relied on the Single Bench authority of King J. in Chorotti v. Karunakaran Nair, AIR 1935 Mad 88 where it was held that
'Article 41 of the Provincial Small Cause Courts Act must be strictly construed and applies only to a suit where the plaintiff at the time of filing his plaint is a sharer in joint property and not to a suit brought by a person whose cause of action depends upon the fact that he once was a sharer in joint property'.
With great respect I am unable to agree with the view of King J. and prefer to adopt the view of Sundara Aiyar J. in 15 Ind Cas 218 (Mad). In a Division Bench authority of the Calcutta High Court, Stephen and Richardson JJ., in Batuk Nath v. Bepin Bihari, 17 Ind Cas 90 (Cal) held that
'although at the date of the institution of the suit, the defendant No. 1 had no interest in the tenure, yet the suit did not fall outside the scope of Article 41 of Schedule II of the Provincial Small Cause Courts Act'.
That was also a suit for recovery of arrears of rent. In another Bench decision of the Calcutta High Court consisting of Sir Asutosh Mookerjee and Beach-croft JJ. in Rajani Kanta Ghose v. Rama Nath Roy, 27 Ind Cas 56: (AIR 1915 Cal 310) it was mentioned at p. 58 (of I. C.) : (at pp. 311-312 of AIR) that if the claimant was a co-sharer at tile time when the money was due, the suit would not be cognizable by a Court of Small Causes. That was a case of a suit by some persons bound by a common liability who had discharged the joint obligation to compel their co-sharers to make good their shares.
It was held that the suit fell within the scopeof Article 41 and could not be tried by the Courtof Small Causes. In my opinion, the amount claimed by the plaintiff was in respect of the joint enter- prise and even though the partnership had ceasedto exist, when the suit was brought, the suit couldnot be tried by the Court of Small Causes. In thisview of the matter, I would allow this petition forrevision and remand this case for decision by theCourt in accordance with law. There would beno costs of this revision petition. The parties havebeen directed to appear before the Court of theSenior Subordinate Judge on 5th of June 1961.