1. This is a reference by the District Judge, Ajmer, under Order 46, Rule 7 of the Code of Civil Procedure.
2. The facts giving rise to it are that plaintiff Ram Prashad brought a suit against defendants Sohanpal and Kaluram for Rs. 100/- on 11th September, 1956. It was averred by him that defendant No. 1 was a Munim of the plaintiff and used to maintain all his account books and also used to handle the cash of his shop. On 11th September, 1953 (Bhadva Sudi 3, Smt. 2010), defendant No. 1 advanced a sum of Rs. 100/- to defendant No. 2 out of the plaintiffs cash amount which was kept at his shop. An entry to this effect was made by defendant No. 1 in the plaintiffs kachi rokar. The defendants failed to return the said amount and hence it was prayed that a decree should be given against both or any one of the defendant whoever is found liable to pay the said amount. On 15th April, 1958 the plaint was returned by the learned Judge, Small Cause Court, Ajmer, to be presented in the proper court since in his opinion it was not triable on account of the provisions of Articles 43A and 35 (h) (ii) of the Provincial Small Cause Courts Act.
On 17th April, 1958 learned counsel for the plaintiff presented the plaint before the Munsif, Ajmer City, but it was returned by that court on 19th August, 1959 to be presented in the proper court since the Munsiff thought that the suit was triable by the Small Cause Court. In view of the difference of opinion between the two courts, the matter was taken to the Court of District Judge, Ajmer. The learned District Judge has reported that the suit was triable by the Small Cause Court and that he ought not to have returned the plaint. He has also expressed an opinion to the effect that Articles 35(h)(ii) and 43-A of the Provincial Small Cause Courts Act are not applicable to the present case.
3. We have gone into the record and find that on 19th November, 1959 the plaintiff had presented an amended plaint and therein the name of defendant No. 1 Sohanpal was dropped. It is thus clear that the plaintiff made no claim against defendant No. 1 Sohanpal whom he considered to be the Munim. His claim was confined only to Kaluram and he wanted a decree for a specific amount on the ground that the said amount was lent to him from his shop by Sohanpal as his agent. In view of the fact that the plaintiff had not asked for accounts from his agent, the question of ac-counts in this case did not arise at all.
Similarly, Article 35 (h) (ii) could not come into play since it relates to a suit for the recovery of an amount which is found liable on account of an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code, will be, an offence punishable under Chapter XVII of the said Code. A mere perusal of the plaint shows that no such allegation was made either in the original plaint or in the amended one and thus the said provision could not be attracted. Similarly, Article 43A relates to a suit to recover property obtained by an act which is or save for the provisions of Chapter IV of the Indian Penal Code, would be, an offence punishable under Chapter XVII of the said Code. A comparison of Articles 35(h)(ii) and 43A would show that both contemplate the same kind of act on behalf of the defendant and the only difference between the two is that while (Article 35(h)(ii) is meant for recovering compensation for the act, Article 43A is for recovering the property itself of which the plaintiff might have been deprived on account of such an act.
The present suit was filed for the recovery of loan simpliciter and it was obviously wrong on the part of the Judge, Small Cause Court to refer to the said Articles to support the return of the plaint.
4. The reference is, therefore, allowed. The order of the Judge Small Cause Court, Ajmer, dated 15th April, 1958 is set aside, the record of the case is sent back to that court through the District Judge, Ajmer, and the said court is directed to entertain the suit and proceed to determine it according to law. No order as to costs.