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Dharani Mohun Roy Vs. Prafulla Kumar Mitra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1161 of 1950
Judge
Reported inAIR1952Cal281,55CWN742
ActsPresidency Small Cause Courts Act, 1882 - Section 19
AppellantDharani Mohun Roy
RespondentPrafulla Kumar Mitra
Appellant AdvocateHemendra Chandra Sen and ;Satyendra Chandra Sen, Advs.
Respondent AdvocateBiman Chandra Bose, ; Rabindra Nath Mitra and ;Sunil Kumar Bose, Advs.
Excerpt:
- .....in section 19(p) of the presidency small cause courts act (xv (15) of 1882). he deemed it to be a suit for accounts.2. against this order, the plaintiff moved an. application under section 38 of the presidency small cause courts act. at the hearing of this application, it was held that no final order having been made disposing of the suit, the rehearing petition was not maintainable in law. ?3. two points have been urged before us on behalf of the plaintiff-petitioner. in the first place, it is contended that section 19(p) of the-presidency small cause courts act is no bar-to the entertaining of a suit of the nature as disclosed in the plaint. secondly, the decision by the court of small causes that section 38 of the presidency small cause courts act was not attracted is also.....
Judgment:

R.P. Mookerjee, J.

1. The plaintiff-petitioner had filed a suit in the Presidency Small Cause Court against the defendant who was a bustee sarkar under the former for realising rents and depositing the same with the plaintiff. It was alleged in the plaint that the defendant had not deposited the amounts realised by him in respect of various bills and in particular, in respect of 20 bills which had been realised by the defendant, but had not been duly credited in the office of the plaintiff. The plaintiff estimated that the total amount so misappropriated was Rs. 1170/3/. Giving up portions of the claim, Rs. 500/- only was claimed. The defendant denied his liability and the various allegations made in the plaint. He, on the other hand, alleged that arrears of salaries were due to the defendant, and the-latter was also entitled to compensation for wrongful dismissal. The learned Judge, however, returned the plaint for presentation to the proper Court, as in his view, the claim in suit fell within the exception provided in Section 19(p) of the Presidency Small Cause Courts Act (XV (15) of 1882). He deemed it to be a suit for accounts.

2. Against this order, the plaintiff moved an. application under Section 38 of the Presidency Small Cause Courts Act. At the hearing of this application, it was held that no final order having been made disposing of the suit, the rehearing petition was not maintainable in law. ?

3. Two points have been urged before us on behalf of the plaintiff-petitioner. In the first place, it is contended that Section 19(p) of the-Presidency Small Cause Courts Act is no bar-to the entertaining of a suit of the nature as disclosed in the plaint. Secondly, the decision by the Court of Small Causes that Section 38 of the Presidency Small Cause Courts Act was not attracted is also erroneous.

4. Clause (p) of Section 19 of the Presidency Small Cause Courts Act is in the following terms:-

'The Small Cause Court shall have no jurisdiction:

* * * * * (p) suits for an account of property and its due administration under the decree of the Court;'

5. There is no other provision under which a suit for accounts can be ruled out. The only question, therefore, ' is whether the expression 'suits for an account of property and its due administration' includes a suit for accounts sim-pliciter in which there is no prayer for administration. It is to be noticed that the provision contained in Clause (p) of Section 19 of the Presidency Small Cause Courts Act is in terms similar to Art. 30 in the second schedule of Provincial Small Cause Courts Act (IX of 1887). Art. 31 in the same schedule of the Provincial Act, however, introduces further provisions under which

'Any other suit for an account............and a suit for the profits on immovable property belonging to the plaintiff which have been wrongfully received by the defendant'

is excepted from the cognizance of the Small Cause Courts governed by the Provincial Act. There is no similar provision in the Presidency Small Cause Courts Act, and the only provision being Clause (p) of Section 19 of the Presidency Small Cause Courts Act, it will not be relevant to refer to decisions which are rested on Art. 31 of the second schedule to the Provincial Small Cause Courts Act.

6. For deciding as to what is the implication of the terms used in Clause (p) of Section 19 of the Presidency Small Cause Courts Act, we have no doubt that the provisions so laid down are referable only to administration suits. Reference may in this connection be made to Rule 13 of Order XX of the Code of Civil 'Procedure which provides for decrees in administration suits; such a suit is described as being 'a suit for an account of any property and for its due administration under the decree of the Court.' Rule 13 of Order XX of the Code of Civil Procedure corresponds in material particulars to Section 34 and part (i) of schedule I of the Administration of Estates Act, 1925 (15 George V c. 23). As far as we have been able to trace out the forms in which administration suits are so described in the Administration of Estates Act or in the Code of Civil Procedure and in other Indian statutes are taken from Section 10 of the Judicature Act being 38 and 39 Victoria C-77. There is no room for doubt that the expression 'a suit for an account of any property and for its due administration' refers to one particular type of cases viz. a suit for administration of an estate where an account has to be taken of property which is to be administered.

7. The view expressed by Costello, J. in 'RAMESWAR PRASAD v. RAMAPADA GHOSE', 55 Cal 1292 at p. 1298, is in consonance with the principles enunciated by us above. The Judge of the Presidency Small Cause Court who directed the return of the plaint on the ground that it was a suit for account was not justified in doing so.

8. In this view it is not necessary for us to decide whether Section 38 of the Presidency Small Cause Courts Act gives jurisdiction to the Full Bench to hear an application under this section when the trial Judge had returned a plaint for presentation to a proper Court.

9. This Rule is accordingly made absolute. The order passed by the learned Judge of the Court of Small Causes on the 29th November 1949 is set aside. The Court will proceed to try the suit according to law. Our attentioa was not drawn to any other provisions of the law under which the suit may not be maintainable in a Court of Small Causes & we are not expressing any opinions whether the suit is barred under any other provisions. As the only point urged before that Court or before this Court was rested on Clause (p) of Section 19 of the Presidency Small Cause Courts Act, the orders passed by the Full Bench accordingly must be set aside, in view of the directions given above.

10. There will be no order as to costs in this Court.

Guha, J.

11. I agree.


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