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Kali Krishna Tagore Vs. Izzatannissa Khatun and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal557
AppellantKali Krishna Tagore
Respondentizzatannissa Khatun and anr.
Cases ReferredMohesh Mahto v. Piru I.L.R.
Excerpt:
second appeal - code of civil procedure (act xiv of 1882), section 586--suit for compensation for use and occupation of land valued at less than rs. 500--provincial small cause courts act (ix of 1887), sections 15 and 23, schedule ii, article 8. - .....as to the first branch of this argument, i do not think that the effect of the transfer of a suit cognizable by a court of small causes is to make it any the less cognizable by such court. section 23 of act ix of 1887 simply enacts that, 'not with standing anything in the foregoing portion of the act, when the right of a plaintiff and the relief claimed by him in a court of small causes, depend upon the proof or disproof of a title to immoveable property, or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title.' that does not alter the nature of the suit. the section is evidently intended to enable courts of small causes to save their time by.....
Judgment:

Maclean, C.J.

1. I think that this preliminary objection must prevail. In Section 586 of the Code of Civil Procedure it is provided that no second appeal shall lie in any suit of the nature cognizable in a Court of Small Causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 500. If we turn to the Small Cause Courts Act (IX of 1887) we find this provision in Sub-Section 2 of Section 15 of the Act, 'Subject to the exceptions specified in that schedule,' that is, the second schedule of the Act, 'and to the provisions of any enactment for the time being in force, all suits of a civil nature, of which the value does not exceed Rs. 500, shall be cognizable by a Court of Small Causes.' If the matter stood there, there could be no reasonable doubt that this was an action cognizable by the Small Cause Court, and therefore within the meaning of Section 586 of the Code of Civil Procedure, and consequently no second appeal would lie.

2. But it has been ingeniously argued on behalf of the appellant that Section 23 of the Act of 1887 makes a difference in the case. That section provides as follows: 'Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property, or rather title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.' That section is an enabling section only; and enables the Court, at any stage of the proceedings, to return the plaint in order that it may be presented to any Court which could determine the title. But, as was pointed out in the course of the argument, the section does not say that such suits shall not be cognizable by the Small Cause Court. It could easily have said so; it could easily have said, if that were the intention of the Legislature, that a suit, where the issue depended upon the proof or disproof of the title, would cease to be cognizable by the Small Cause Court. It appears to me, therefore, that that section only does not make a case such as this, less a case cognizable by the Small Cause Court, as to which, under Section 586 of the Code of Civil Procedure, no second appeal lies.

3. But that does not quite dispose of the matter. One other point was urged before us. It was urged that this particular case came within the exception of article 8 in the second schedule of Act IX of 1887: an exception that takes the case out of the operation of Section 15 of the Act. It was stated that this was a suit for the recovery of rent. I think that when one looks at the plaint, and when one applies one's knowledge of what the term 'rent' ordinarily means, it is not easy to arrive at the conclusion that this is a suit for the recovery of rent. It is an action for the recovery of damages. The conclusion at which I arrive appears to me to be consistent with the principle laid down by a Full Bench of this Court in the case of Mohesh Mahto v. Piru I.L.R. 2 Cal. 470 and with the view held by the High Court at Madras in the case of Muttukaruppan v. Sellan I.L.R. 15 Mad. 98.

4. For these reasons I think the preliminary objection must prevail, and this appeal must be dismissed with costs.

Banerjee, J.

5. I am of the same opinion. The preliminary objection being that a second appeal is barred by Section 586 of the Code of Civil Procedure, the question for consideration is whether the suit was of the nature cognizable in the Court of Small Causes, the amount being admittedly below Rs. 500. The learned Vakil for the appellant contended that the suit was not of that nature for two reasons---first, because, though the plaint was originally filed in the Court of Small Causes, it was returned by the Judge of the Small Cause Court under Section 23 of Act IX of 1887 for presentation to the Court having jurisdiction to determine the question of title that was involved in the case; and, secondly, because, having regard to the nature of the claim, the suit ought to be treated as one for rent, and therefore excepted from the jurisdiction of the Court of Small Causes under Article 8 of the second schedule of Act IX of 1887.

6. As to the first branch of this argument, I do not think that the effect of the transfer of a suit cognizable by a Court of Small Causes is to make it any the less cognizable by such Court. Section 23 of Act IX of 1887 simply enacts that, 'not with standing anything in the foregoing portion of the Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes, depend upon the proof or disproof of a title to immoveable property, or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.' That does not alter the nature of the suit. The section is evidently intended to enable Courts of Small Causes to save their time by returning plaints in suits which involve indirectly enquiry into questions of title which may take time; and a comparison of Sub-Section 2 of Section 15 of the Small Cause Court Act of 1887, with Section 16, will clearly show that a suit which under any of the provisions of that enactment may be tried by an ordinary Civil Court, not with standing that it is cognizable by a Court of Small Causes, does not cease to be a suit of that description by the mere fact of its being tried by such Court. The effect of the trial of such a suit by the ordinary Civil Court was considered by a Full Bench of this Court in a case tried under the old law, that is, the case of Mohesh Mahto v. Piru I.L.R. 2 Cal. 470; and it was held that a second appeal would not lie in such a case.

7. Then, as to the second branch of the argument, I do not think that this suit can be treated as one for rent in any sense of the term. It is clear from the plaint that what is claimed is not any sum payable by the defendant as holding lands under the plaintiff as his tenant. What is claimed is a sum of money which, the plaintiff says, ought to have come to his hands in the first instance, but which the defendant wrongfully realised from the actual occupants of the land who are stated to be the tenants of the plaintiff. It was argued that as part of the claim consisted of road cess and public works cess, and as road cess and public works cess are realisable under the Cess Act as rent, the suit should, so far as the claim for road and public works cesses was concerned, be treated as one for rent. But on looking at the 6th paragraph of the plaint, I find that cesses are introduced, not as independent items of the claim, but as merely furnishing data far the assessment of the damages claimed in the suit. Both branches of the argument, therefore, upon which it is sought to take the case out of the description mentioned in Section 586 of the Code of Civil Procedure, fail; and the preliminary objection must be allowed, and the appeal dismissed with costs.


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