1. This is a reference by the Munsif of Kalna under Order 46, Rule 6, Civil P. C. It appears that the Chairman of the Kalna Municipality claimed arrears of taxes from the Province of West Bengal and instituted a suit before the Munsif of Kalna who is invested with Small Cause Court powers. The suit was registered as Small Cause Court Suit No. 347 of 1948. The plaintiff is claiming Rs. 8-4-0 on account of arrears of taxes and he has prayed for a decree for the amount of the claim with costs and such other relief as he may be entitled to.
2. On 27th May 1949 the suit was heard by the learned Munsif. The learned Munaif had doubts as to whether the suit was cognizable by a Court of Small Causes. In that view of the matter he has made this reference. No one has appeared for either party on this reference. 3. The jurisdiction of the Court of Small Causes is conferred by Section 15, Provincial Small Cause Courts Act which reads as follows :
'(1) A Court of Small Causes shall not take cognizance of the suits specified in Schedule 2 as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exceptions specified in that schedule 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 five hundred rupees shall be cognizable by a Court of Small Causes.'
4. Section 16 of that Act reads as follows: 'Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of a Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.'
5. This suit is of a civil nature and its value does not exceed Rs. 500. It is therefore clear that unless this suit is a suit which is specified in Schedule 2 to the Act the Court of Small Causes has jurisdiction to hear and determine the suit.
6. Questions have arisen in other High Courts as to whether any of the articles in Schedule 2, Provincial Small Cause Courts Act, bar the jurisdiction of the Small Causes Court in hearing and determining suits relating to taxes filed by municipalities. It wag urged in several cases that Article 13 of Schedule 2,. Provincial Small Cause Courts Act, bars the jurisdiction of the Small Causes Court in such matters. That article bars the jurisdiction of the Small Causes Court from trying a suit respectively called malikana and hakk, or of cesses or other dues when the ceases or dues are payable to a person by reason of his interest in immovable property in an hereditary office or in a shrine or other religious institution.
7. In dealing with this question, Fazl Ali J. in the case of Municipal Commissioners, Ranchi v. Mr. Mungia, A. I. R. (19) 1932 pat. 220 : (139 I. C. 104) observed as follows:
'The first point to be determined is whether a Municipality has any such 'interest in any immovable property' as is referred to in Article 13. Mr. Shiveshwar Dayal, who appears in support of the application, contends that the Municipality has no 'interest in immovable property' and clinches his argument by referring to the fact that in case any of the holdings which were to be sold are acquired by the Land Acquisition Department the Municipality could not claim any share in the proceeds of the sale or the compensation that might be payable upon such acquisition. Now although I recognise that the term 'interest' is wider than 'proprietary interest', yet having regard to the context in which the expression is used, it is in my judgment difficult to hold that the municipality has any such interest in the holdings situated within the municipal area as 19 contemplated by the use of the expression in Article 13.'
8. We respectfully agree with that observation. In order that Article 13 of Schedule 2 may apply the plaintiff must be claiming certain dues which are payable to him by reason of his interest in immovable property. It is quite clear that the taxes which are being claimed by the plaintiffs municipality here are not being claimed by reason of an interest of the municipality in the immovable property. The tax is due to the municipality by force of a statute, and not by reason of any interest of the municipality in the immovable property.
9. The learned Munsif in his letter of reference has referred to Section 167, Bengal Municipal Act which reads as follows:
'The sum due on account of any rate under this Act from any person in respect of any holding shall, subject to the prior payment of the land revenue (it any) due to the Government or of rent (if any) due to a landlord under the Bengal Tenancy Act 1885, thereupon, be a first charge upon the said holding.'
It is true that by virtue of that section the municipality has a charge on the holding in respect of which the municipality is claiming the rate. But the municipality is entitled to. file a suit to recover the money due to it and to ask for a simple money decree. It is not bound to enforce its rights as a charge-holder. Whether it will be open to the municipality later on to enforce the charge by a separate suit it is not necessary for this Bench to determine. The answer to that question will depend upon the true construction of Order 2, Rule 2, Civil P. C., and Order 34, Rule 14 of that Code.
10. The jurisdiction of the Court will depend upon the allegations made in the plaint. Here the only allegations made in the plaint ace that a certain sum of money is due to the plaintiff municipality on account of arrears of arrears of taxes. The plaintiff is claiming a simple money decree to recover the arrears of taxes. It is to be noticed that in the plaint no reference has been made to Section 167, Bengal Municipal Act. It is quite clear that the plaintiff municipality does not intend in this suit to en-force the charge which is given to them by Section 167, Bengal Municipal Act. As the plaint stands it is a simple money claim and by reason of Section 15, Provincial Small Cause Courts Act, the Small Cause Court will have jurisdiction to entertain and decide the suit.
11. The learned Munsif in his letter of reference has also referred to Section 7, Civil P. C., which inter alia provides that so much of the body of the Code as relates to the execution of decrees against immovable property shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887. The learned Munsif seems to have been of the opinion that inasmuch as he is debarred from executing a decree against immovable property he is also debarred from entertaining and deciding the suit. In our judgment, the question of the jurisdiction of the Court as to execution of a decree has no relevance whatsoever as to the question whether the Court has jurisdiction to try the suit. The learned Munsif has not been called upon at present to execute any decree which may or may not be passed by him. The only question at present before him is whether the suit which has been filed in his Court can be proceeded with.
12. In our judgment it is clear that the Court of Small Causes has jurisdiction to hear and determine the suit and we, therefore, direct that the Munsif do proceed with the suit before him.