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Kshetra Nath Bhuiya Vs. Kali Dasi Dasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.929
AppellantKshetra Nath Bhuiya
RespondentKali Dasi Dasi
Cases Referred and Kriahnaswami Aiyangar v. Poovanna Nadar
Excerpt:
provincial small cause courts act (ix of 1887), section 16, schedule ii, clause 31 - civil procedure code (act v of 1908, order xlvi, rules 6, 7--suit to recover specific sum of money--suit for accounts--jurisdiction of small cause courts--doubt--reference to high court. - .....where, at any time before judgment, a court in which a suit has been instituted doubts whether the suit is cognizable by a court of small causes or is not so cognizable, it may submit the record to the high court with a statement of its reasons for the doubt as to the nature of the suit. the munsif had held, in a carefully written judgment, that the suit was cognizable, hot by his court, but by the court of small causes. if the judge of the court of small causes was of a different opinion, he might reasonably have entertained a doubt as to the forum, where the suit should be instituted and thus referred the matter to this court for decision. on the other hand, if the small cause court judge was so confident of the correctness of his view as to entertain no doubt whatsoever in the matter.....
Judgment:

1. We are invited in this Rule to determine the forum where the plaintiff can obtain relief in respect of his claim. The plaintiff sues to recover from the defendant a sum of Rs. 466. He asserts that he was entitled to get Rs. 448 for salary, Rs. 367 as money borrowed for the benefit of the defendant, and Rs. 76 as house rent, that is, Rs. 891 in the aggregate; he then allows credit for Rs. 425 and claims to recover Rs. 466. The plaint adds that if the correctness of the amounts is questioned, the amount due may be determined on examination of the accounts. The suit thus framed was instituted in the Court of the Munsif of Jessore on the 11th December 1913. Summons was served upon the defendant in due course. She entered appearance and pleaded that the suit was cognizable by the Court of Small Causes and was consequently not triable by the Munsif under Section 16 of the Provincial Small Cause Courts Act. An issue was thereupon raised, whether the suit was cognizable by a Court of Small Causes. The Munsif came to the conclusion that the suit was so cognizable, and, on the 23rd December 1914, returned the plaint to the plaintiff fir presentation to the proper Court. The plaint so returned was presented in the Court of Small Causes at Jessore on that very day. Summons was again served upon the defendant, who appeared and filed a written statement on the 12th April 1915. As that written statement is not before use we do not know, whether objection was taken by the defendant to the jurisdiction of the Small Cause Court to entertain the suit. It is plain that on the principle that no litigant is permitted to take up inconsistent positions in Court, such objection could not have been taken by her, for at her instance the Munsif had held that the Small Cause Court and that Court alone had jurisdiction to entertain the suit. We find, however, the following order recorded by the Small Cause Court Judge on the 23rd April 1915: 'This Court has no jurisdiction, Return for presentation to the proper Court.' The Small Cause Court Judge does not assign, it will be observed, any reasons in support of his conclusion, he makes no endeavour to meet the grounds assigned by the Munsif in support of his order. The plaintiff took the plaint again to the Court of the Munsif and filed it on the same day. On the 2nd June 1915 the Munsif held, and, in our opinion, very properly held, that so long as his previous order stood; he could not entertain the suit. Accordingly he returned the plaint to the plaintiff a second time for presentation to the proper Court. The plaintiff thereupon applied to this Court and obtained the Rule how under consideration; his prayer is that either the Munsif or the Small Cause Court Judge be directed to entertain and try his suit which was instituted more than two and a half years ago.

2. Before we determine the question of the forum of the suit, we cannot but observe that the Subordinate Judge should never have followed the procedure he adopted to the manifest harassment of the plaintiff. He should have taken action under Rule 6 or Rule 7, Order XLVI, of the Code. Rule 6 provides that where, at any time before judgment, a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit. The Munsif had held, in a carefully written judgment, that the suit was cognizable, hot by his Court, but by the Court of Small Causes. If the Judge of the Court of Small Causes was of a different opinion, he might reasonably have entertained a doubt as to the forum, where the suit should be instituted and thus referred the matter to this Court for decision. On the other hand, if the Small Cause Court Judge was so confident of the correctness of his view as to entertain no doubt whatsoever in the matter within the meaning of Rule 6 (1), he might, at any rate, have sent the record to the - District Judge with a request that action might be taken by him under Rule 7. The lamentable result of the course adopted by the Small Cause Court Judge has been that the plaintiff has been driven from Court to Court and has not been able yet to obtain trial of his suit on the merits, while his summary order leaves us even now entirely in the dark as to the grounds for his view of the scope and nature of the suit.

3. As regards the nature of the suit, we are clearly of opinion that the view taken by the Munsif is correct. The suit, as already stated, is for recovery of money and is, prima facie, cognizable by a Court of Small Causes. Reliance, however, appears to have been placed before the Munsif on Clause 31 of the Second Schedule to the Provincial Snail Cause Courts Act, which excludes from the jurisdiction of Small Cause Courts a suit for accounts. In oar opinion, the present suit cannot be properly described as a suit for accounts. A suit for the recovery of a specific sum of money does not assume the character of a suit for accounts, merely because in the determination of the question in controversy accounts may have to be examined. This has been pointed out in a long series of decisions, amongst others in Hansraj v. Ratni 27 A. 200 : A. W. N. (1904) 227; Konduru Runga Reddi v. Subbiah Setty 28 M. 394; Sankara Reddy v. Errama Reddi 4 Ind. Cas. 618 : 19 M. L. J. 113; Kailas Chandra v. Kiranenda Ghosh 10 Ind. Cas. 883 : 24 C. L. J. 187; Maroli v. Balaji 14 Ind. Cas. 786 : 8 N. L. R. 36; Kadar Rowther v. Vencatachellapathy Chetty 14 Ind. Cas. 573; Indar Mal v. Baldeo Das 23 Ind. Cas. 424 : 12 A. L. J. 230 and Malaya Pillai Nadan v. Venganan Chetty 24 Ind. Cas. 764 : 1 L. W. 180. There cannot in essence be a suit for accounts by the plaintiff against the defendant, unless the defendant is under a liability to render accounts to the plaintiff. This was recognized in the cases of Chidrie Kristappa v. Siddamsetti Yamanappa 13 Ind. Cas. 159 : 11 M. L. T. 13 : (1912) M. W. N. 36; Varadarajulu Chettiar v. Pattra Narayanaswamy Chetty 20 Ind. Cas. 518 : 24 M. L. J. 693 : 14 M. L. T. 46 : (1913) M. W. N. 879 and Kriahnaswami Aiyangar v. Poovanna Nadar 28 Ind. Cas. 955. In the present case, there is no allegation that the defendant is under a liability to the plaintiff to render accounts in the well-known technical sense of the term. We are accordingly of opinion that this is not a suit for accounts and is cognizable by a Court of Small Causes.

4. The result is that this Rule is made absolute, the order of the Small Cause Court Judge, dated the 23rd April 1916, is set aside and the ease is remitted to him in order that he may take cognizance of it and try it on the merits. The plaint which has been filed in this Court will be received here and transmitted to the Small Cause Court Judge. As the application has not been contested by the defendant, there will be no order for costs.


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