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Khenta Kamini Dutt Vs. Aswini Kumar Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal424
AppellantKhenta Kamini Dutt
RespondentAswini Kumar Dutt and ors.
Cases ReferredKunjo Behari Singh v. Madhub Chandra Ghose
Excerpt:
- .....him (per petheram, c.j., at p. 889). a suit in which accounting is involved is not necessarily a suit for account. trevelyan, j., also at p. 890 says:but the jurisdiction of the small cause court is in my opinion only excluded by the act where such suit is a suit for an account, that is, a suit which seeks for a decree, not for a definite sum of money but ordering the defendant to account to the plaintiff for moneys received by him. the machinery necessary for the putting in force of that decree is of a kind with which the small cause courts have never been supplied, and it has always been the object of the legislature to confine small cause courts to simple suits which are concluded by the first decree. a suit for an account is a suit which seeks for discovery in pursuance of that.....
Judgment:

Mukerji, J.

1. The only ground on which this rule has been issued is that the Small Cause Court had no jurisdiction to try the suit in view of Article 31, Schedule 2, to the Provincial Small Cause Courts Act.

2. There were two defendants in the suit, defendant 1 being the principal defendant and defendant 2 the pro forma defendant.

3. The plaintiffs claimed to recover Rs. 170 as house rent, together with Rs. 10 for compensation, against defendant 1 who was the tenant in the house. The claim against defendant 2 was worded thus in the plaint:

If it appears and is legally proved that defendant 1 has in good faith paid to defendant 2 the rent claimed or the rent for any month, then a decree may be passed against defendant 2 for such amount as may be so found to have been paid.

4. In the course of the trial the plaintiffs appear to have reduced their claim to two-thirds share of the rent, defendant 2 being entitled to the remaining one-third. Defendant 2 having admitted to have realized the rents and the learned Munsif having found that defendant 1 had made the payments in good faith, he passed a decree against defendant 2 for two-thirds of the amount which he had realized.

5. It is urged in support of the rule that the suit, in so far as it is against defendant 2, is to recover the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant. That no doubt is so. But, as pointed out by the Full Beach decision of this Court in the case of Kunjo Behari Singh v. Madhub Chandra Ghose [1896] 23 Cal. 884 [F.B.], the only class of suits excluded by Article 31 are those in which the plaintiff claims an account of the moneys which the defendant has received and to an acoount of which the plaintiff is entitled because the moneys belonged to him (per Petheram, C.J., at p. 889). A suit in which accounting is involved is not necessarily a suit for account. Trevelyan, J., also at p. 890 says:

But the jurisdiction of the Small Cause Court is in my opinion only excluded by the Act where such suit is a suit for an account, that is, a suit which seeks for a decree, not for a definite sum of money but ordering the defendant to account to the plaintiff for moneys received by him. The machinery necessary for the putting in force of that decree is of a kind with which the Small Cause Courts have never been supplied, and it has always been the object of the legislature to confine Small Cause Courts to simple suits which are concluded by the first decree. A suit for an account is a suit which seeks for discovery in pursuance of that decree.

6. It is clear from these observations that unless a decree for accounts is asked for, a suit for money against a person who is alleged to have wrongfully realized moneys due to the plaintiff does not come within the article. The plaintiff in a suit of the present nature can have a deoree for money so long as he is able to prove what moneys were so realized by the defendant.

7. The ground of the rule in my opinion fails. In view of the limited character of the rule it is not necessary for me to consider whether on any other ground the rule may be supported, nor indeed have I been asked to do so. The rule is discharged with costs : 1 gold mohur.


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