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Kaniram Malpani, Managing Member of Magniram Kishenlal Firm Vs. Parmananda Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal528
AppellantKaniram Malpani, Managing Member of Magniram Kishenlal Firm
RespondentParmananda Tewari and ors.
Excerpt:
- .....for recovery of a sum of rs. 500 only alleged to be due on certain khata account. the trial court passed a decree against defendant 2 alone. on appeal by the plaintiff this was altered and the appellate court gave the plaintiff a decree against defendants 1 and 2 to the exclusion of the other defendant. against this decision there was a second appeal taken to this court by defendant 1 and jack j. reversed the decision of the courts below and dismissed the plaintiff's suit in its entirety.2. in our opinion this appeal must succeed upon a short point, viz., that the second appeal to this court was barred under the provisions of section 102, civil p.c. it appears clear from the allegations made in the plaint that the suit was of a nature cognizable by a court of small causes and it is not.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal under Clause 15 of the Letters Patent and it is directed against a judgment of Jack J., dated 15th December 1937. The appellant before us is the plaintiff and the suit was one commenced by him against three defendants for recovery of a sum of Rs. 500 only alleged to be due on certain khata account. The trial Court passed a decree against defendant 2 alone. On appeal by the plaintiff this was altered and the Appellate Court gave the plaintiff a decree against defendants 1 and 2 to the exclusion of the other defendant. Against this decision there was a second appeal taken to this Court by defendant 1 and Jack J. reversed the decision of the Courts below and dismissed the plaintiff's suit in its entirety.

2. In our opinion this appeal must succeed upon a short point, viz., that the second appeal to this Court was barred under the provisions of Section 102, Civil P.C. It appears clear from the allegations made in the plaint that the suit was of a nature cognizable by a Court of Small Causes and it is not disputed that the amount or value of the subject-matter in dispute does not exceed Rs. 500. In these circumstances no second appeal was competent and consequently the judgment passed in second appeal by Jack J. must be set aside. It is true that this question was not specifically raised before Jack J. and Mr. Ahmed who appears for the appellant frankly confesses that he was under a misapprehension as regards the value of the suit. Be that as it[ may, as it is a question affecting the jurisdiction of the Court we must allow it to be raised even for the first time before us and the second appeal must be deemed to be incompetent in law. The result is that the appeal is allowed, the judgment of Jack J. is set aside and that of the lower Appellate Court restored. As this point was not taken by the learned advocate in the memorandum of appeal to this Court we make no order as to costs either in this Court or in the Court below. The plaintiff is however en-titled to his costs in the first Appellate Court.

Narsing Rau, J.

3. I agree.


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