1. This rule was issued on the opposite party to show cause why the order of the Subordinate Judge of Dacca, dated 17th February 1927, entertaining and allowing an appeal preferred by the opposite party from a decision of the Munsif of Dacca, dated 30th September 1926, should not be set aside.
2. It appears that the plaintiff, who is the petitioner before this Court, instituted a suit in the Court of the Munsif of Dacca for recovery of a certain sum as the price of trees which had been cut by the defendant. The defendant is plaintiff's tenant, and the plaint alleged that the defendant had, as such tenant, no right to cut away and misappropriate any tree without the permission of the plaintiff either under the local custom or under the law, and, as the defendant wrongfully and illegally cut away two hijal trees from the land, he was liable to pay compensation.
3. The Munsif decreed the plaintiff's suit and ordered that 'the suit be decreed in part for Rs. 5-2-6 with proportionate costs.' The suit was valued at less than Rs. 100 and it is admitted that the Munsif who tried the suit was vested with powers of a Small Cause Court Judge to try cases up to the value of Rs. 100.
4. It is argued that the present suit was a suit of a Small Cause Court nature and, although the Munsif tried it under his ordinary jurisdiction, no appeal lay from the decision of the Munsif to the Subordinate Judge; and, in support of this contention, reliance is placed on a decision of the learned Chief Justice in the case of Mohini Mohan Ray v. Ramdas Paramhans : AIR1924Cal487 . This position is not controverted by the learned vakil for the opposite party. The question, therefore, on which this rule turns is this: namely, whether on a true reading of the plaint it can be said that the suit was one which was exempted from the jurisdiction of the Court of Small Causes by reason of the provisions in Article 35, Clause (ii) Provincial Small Cause Courts Act, which excludes cases which fall under Ch. 17, I.P.C., from the cognizance of a Small Cause Court.
5. It appears to me, from the allegations in the plaint, that the allegations do not constitute mischief within the meaning of Section 426, which falls under Ch. 17, I.P.C. The dispute is between the landlord and a tenant, and the question asto whom the right to the trees, or the right to the timber when the trees are felled, belongs, is often a question of considerable difficulty. The tenant, for aught one knows, might bona fide believe that he was entitled to cut the trees, and if, under such bona fide belief, he cut the trees the provisions of Ch. 17, I.P.C., would not be applicable to his act. I think, therefore, that the suit was one which was not excluded from the cognizance of the Court of Small Causes. That being so, no appeal lay to the Subordinate Judge.
6. The result is that the order of the Subordinate Judge is set aside and the decree of the Munsif is restored, but, in the circumstances of the present case, as no objection was taken to the competency of the appeal before the Subordinate Judge by the petitioner, he is not entitled to costs in this Court.