1. The suit in this case was for recovering the amount due to the plaintiff under a contract entered into by him with the Government, whereby he undertook to repair a tank and to build a pipe sluice. The plaintiff's case was that the plaintiff had performed his part of the contract and was, entitled to the amount due to him under it. The defendant pleaded that the plaintiff had not carried out the work undertaken by him. The District Munsif dismissed the suit, but, on appeal, the plaintiff got a decree in the Subordinate Judge's Court. Defendant appeals to this Court.
2. A preliminary objection is taken that no second appeal lies in this case, as the amount sought to be recovered is less than Rs. 500 and the suit is of a small cause nature. It is contended for the defendant that a suit of this kind is exempted from the congnizanee of the Small Cause Court by Article 3 of the second Schedule of the Provincial Small Cause Courts Act. That Article is in these terms: A suit concerning an act or order purporting to be done or made by any other officer of the Government in his official capacity or by a Court of Wards, or by an officer of a Court of Wards in the execution of his office.' The question is whether this can be regarded as a suit concerning an act purporting to be done by an officer of Government in his official capacity. We are of opinion that it cannot. The Article applies to a suit relating to some distinct act done by an officer of Government. We do not think that a mere failure to carry out a contract can be regarded as such an act. In Bajmal Manikchand v. Hanmant Anyaba 20 B.k 697 it was held that the expression an act parporting to be done in Section 80 of the Civil Procedure Code was not applicable to the failure to perform a contract. Chhaganlal Kishore das v. Collector of Kaira 12 Bom. L.R. 825 merely held that Section 80 was not confined in its operation to torts but was applicable wherever there was a distinct act done by an officer of Government. In that case, there was a declaration made by an officer in virtue of a power vested in him under the statute and that was held to amount to an act. In Bunwari Lal Mooherjee v. The Secretary of State for India 17 C.k 290 the Calcutta High Court held that a suit for compensation for damages for injury done to an article of the plaintiff carried by a State Railway did not come within the purview of Article 3 and was congnizable by a Small Case Court. In Mothi Rangaya Chetty v. The Secretary of State for India in Council 15 M.L.J. 226 this Court held that a suit for damages sustained by the plaintiff in consequence of the Postal Department by delivering an article without collecting the value of it due from the addressee (the article being sent by V.P.P.) was not a Suit which could be held to relate to an act done by the Postal Officer concerned in his official capacity.
3. We must uphold the preliminary objection and dismiss the second appeal with costs.