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Sheikh Uzir Vs. Hari Charan Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.671
AppellantSheikh Uzir
RespondentHari Charan Pal and ors.
Cases ReferredSubbu Reddi v. Veera Reddi
Excerpt:
landlord and tenant - suit for rent by co-sharer landlord, or in the alternative for refund of excess collected by other sharers, maintainability of--necessity of distinct averments in plaint--jurisdiction of small cause court--provincial small cause courts act (ix of 1887), schedule ii, article 31. - .....assume that the court possesses considerable latitude of judicial discretion to afford suitable relief to a plaintiff on the basis of the general prayer, which, it may be observed, is superfluous under order vii, rule 7, civil procedure code, yet it is plain that though a general prayer may well cover any other relief arising out of the same cause of action, it does not cover a relief arising from a different cause of action: mohummud zahoor ali khan v. musammat thakoranee rutta koer 11 m. i.a. 468 at p. 474 : 9 w. r. (p. c.) 9 : 2 suth. p.c.j. 107 : 2 sar. p.c.j. 320 : 20 e. r. 177. sital das babaji v. i'ertap chunder sarma 8 ind. cas. 408 : 11 c. l.j. 2. basawan kurmi v. nakchhedi pande 27 a. 174 : a. w. n. (1904) 207 : 1 a. l.j. 628. gopi narain khana v. bansidhar 32 i.a......
Judgment:

1. In this Rule the question for consideration is, whether the Small Cause, Court Judge properly made a decree against the petitioner. The plaintiff instituted this suit for recovery of arrears of rent from the 1st defendant, who was described in the plaint as the principal defendant. Three other persons were joined as pro forma defendants. The allegations in the plaint do not establish any cause of action against these persons, indeed, the only prayer was that a decree for Rs. 12 might be made in favour of the plaintiff against the defendant, that is, the principal defendant. At the trial, it transpired that the 2nd defendant (who was alleged by the plaintiff to be his co-sharer) had realised from the tenant defendant the amount claimed. The Court thereupon proceeded to dismiss the suit as against the tenant and make a decree against the 2nd defendant. The second defendant, who is the petitioner in this Court, contends that the decree should be set aside on two grounds; first, that as the plaint does not disclose a cause of action against him, he could not be justly made liable; and secondly, that even if the plaintiff were allowed to put forward a claim against him, such claim would be excluded from the jurisdiction of the Small Cause Court by the second portion of Article 31 of the Second Schedule of the Provincial Small Cause Courts Act. In our opinion these contentions are well founded.

2. As regards the first ground, it is not disputed that there was no prayer for relief as against the 2nd defendant and the facts set out in the plaint do not disclose a cause of action against him. It is argued, however, that the Court was competent to make a decree against him on the basis of the general prayer in the plaint. There is clearly no force in this contention. No doubt, a suit is maintainable by one of several joint land-lords for recovery of balance of rent due from a tenant; and in the alternative, for recovery of sums which may have been collected by his co-sharers in excess of this legitimate share, Ahamudin v. Grisa Chunder Shamunt4 C. 350 : 1 Shome L.R. 169 : 2 Ind. Dec. (N.S.) 222. Sham Singh v. Kishun Sahai 6 C. L.J. 190. Srinivasa Raghva Ayyanyar v. Pichaikaran 29 M. 184. Yerukola v. Mudiya Kamudu 4 Ind. Cas. 34 : 19 M. L.J. 399 : 5 M.L.T. 282. But, if relief is sought in the alternative in this manner, Foundation for the claim must be laid in the allegations. Assume that the Court possesses considerable latitude of judicial discretion to afford suitable relief to a plaintiff on the basis of the general prayer, which, it may be observed, is superfluous under Order VII, Rule 7, Civil Procedure Code, yet it is plain that though a general prayer may well cover any other relief arising out of the same cause of action, it does not cover a relief arising from a different cause of action: Mohummud Zahoor Ali Khan v. Musammat Thakoranee Rutta Koer 11 M. I.A. 468 at p. 474 : 9 W. R. (P. C.) 9 : 2 Suth. P.C.J. 107 : 2 Sar. P.C.J. 320 : 20 E. R. 177. Sital Das Babaji v. I'ertap Chunder Sarma 8 Ind. Cas. 408 : 11 C. L.J. 2. Basawan Kurmi v. Nakchhedi Pande 27 A. 174 : A. W. N. (1904) 207 : 1 A. L.J. 628. Gopi Narain Khana v. Bansidhar 32 I.A. 123 : 27 A. 325 : 9 C.W.N. 577 : (P. C.) : 2 A. L.J. 336 : 2 C. L.J. 173 : 7 Bom. L.R. 427 : 15 M. L.J. 191 : 8 Sar. P.C.J. 799. Debi Doyal Sahoo v. Bhan Pertap Singh 31 C. 433 : 8 C.W.N. 408. The relief granted must be consistent with and be founded on the allegations in the plaint; no decree can be properly made against a defendant, who, on the face of the plaint, is not called upon to meet any claim. From this point of view alone, the decree cannot be sustained.

3. As regards the second ground, it is clear that the claim against the 2nd defendant as now put forward, is in substance a claim for recovery of profits of immoveable property wrongfully received by him; it is not a suit for money had and received, as in Narayan Bhaskar Khot v. Balaji Bapuji Khot 21 B. 248 : 11 Ind. Dec. (N.S.) 168. Damodar Gopal Dikshit v. Chintaman Balkrishna Karve 17 B. 42 : 9 Ind. Dec. (N.S.) 28. Vasudeo v. Damodar 6 Bom. L.R. 370. Girjabai v. Raghunath 7 Bom. L.R. 741 : 30 B. 147. Anguh Singh v. Amardat Singh 4 O. C. 89. Subbu Reddi v. Veera Reddi 7 Ind. Cas. 390 : (1910) M. W. N. 399 : 8 M.L.T. 281. Consequently, on the special facts of this case the suit as against the 2nd defendant would not be cognizable by a Court of Small Causes.

4. The result is that this Rule is made absolute and the decree of the Small Cause Court Judge set aside. The petitioner is entitled to his costs in this Court. We assess the hearing-fee at one gold mohur.


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