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Smt. Gurudasi Devi Vs. Chandi Charan Kundu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 563 of 1951
Judge
Reported inAIR1952Cal736,56CWN12
ActsProvincial Small Cause Courts Act, 1887 - Section 15(1) - Schedule - Articles 30 and 31
AppellantSmt. Gurudasi Devi
RespondentChandi Charan Kundu and anr.
Appellant AdvocateSyama Charan Mitter, Adv.
Respondent AdvocateManindra Nath Ghose, Adv.
Cases ReferredKunjo Behary Singh v. Madhab Chandra Ghose
Excerpt:
- .....of by a division bench. the rule was accordingly transferred to this bench.2. the plaintiff opposite party no. 1 instituted in the 2nd court of the munsif at burdwan a suit, being s. c. c. suit no. 205 of 1950, against the petitioner and opposite party no. 2. the plaintiff's case inter alia was that he and the petitioner were co-sharers in respect of a property, a part whereof had been demised to opposite party no. 2, and that he was accordingly entitled to his share of the rent either from the opposite party no. 2 direct or from the petitioner sm. gurudasi debi, if she had realised from the tenant rents in excess of her share. the plaintiff accordingly prayed for a decree for bs. 109-5-4, being his share of rent for the period may 8 to november 21, 1949 against opposite party no......
Judgment:

Mitter, J.

1. This Rule involves the interpretation of Article 31 of Sch. 2 to the Provincial Small Cause Courts Act (Act IX [9] of 1887). The rule was issued by Boxburgh J. and was thereafter partly heard by him. The learned. Judge was of the opinion that the matter involved a general question as to the jurisdiction of the Small Cause Court and was of such importance that it should be disposed of by a Division Bench. The rule was accordingly transferred to this Bench.

2. The plaintiff opposite party No. 1 instituted in the 2nd Court of the Munsif at Burdwan a suit, being S. C. C. Suit No. 205 of 1950, against the petitioner and opposite party No. 2. The plaintiff's case inter alia was that he and the petitioner were co-sharers in respect of a property, a part whereof had been demised to opposite party No. 2, and that he was accordingly entitled to his share of the rent either from the opposite party No. 2 direct or from the petitioner Sm. Gurudasi Debi, if she had realised from the tenant rents in excess of her share. The plaintiff accordingly prayed for a decree for Bs. 109-5-4, being his share of rent for the period May 8 to November 21, 1949 against opposite party No. 2, in the alternative against the petitioner, if it should be found that the petitioner had realised the whole of the rent payable by opposite party No. 2 for the said period. The Small Cause Court dismissed the suit as against opposite party No. 2, but decreed' the same as against the petitioner.

3. It is urged on behalf of the petitioner that by reason of Article 31 of Sch. 2 to the Provincial Small Cause Courts Act, the Small Cause Court at Burdwan had no jurisdiction to entertain the suit.

4. Section 15(1), Provincial Small Cause Courts Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the second Schedule as suits excepted from the cognizance of the Court of Small Causes. Articles 30 and 31 of the second Schedule are in these terms:

'(30) a suit for an account of property and for its due administration under decree;

(31) Any other suit for an account, including a suit by a mortgagor, after the mortgage has been satisfied, to recover surplus collections received by the mortgagee, and a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant;'

5. It is urged on behalf of the petitioner that the suit in question was of a kind which fell under Article 31 and that, therefore, the learned Court acted without jurisdiction in decreeing it as against him. In support of this contention reliance was placed on the decision of Ashutosh Mookerjee and Cuming JJ. in Uzir v. Hari Charan, A. I. R. 1917 Cal. 367. On the facts of that case it was held that the claim against the co-sharer defendants was in substance a claim for recovery of profits of immovable property wrongfully received by them and that the suit as against them was not a suit for money had and received. It was also held that a suit was maintainable by one of several joint landlords for recovery of balance of rent due from a tenant, and in the alternative, for recovery of sums which might have been collected by the co-sharer defendants in excess of their legitimate share. It is urged that a suit by one of several joint landlords for recovery of sums which may have been collected by his co-sharers from the tenant in excess of their legitimate share is not cognizable by a Court of Small Causes. In our view, this cannot be right. The head note to that effect is wrong. It is next urged that if the suit is for recovery of profits of immoveable property wrongfully received by a co-sharer, the suit must inevitably fall under Article 31, apart from any question of it being a suit for an account. In our view, this proposition is also wrong and we do not think that Mookerjee and Cuming JJ., sought to lay down that a suit simpliciter for the recovery of profits of immoveable property wrongfully received was excepted under Article 31. The language of Arts. 30 and 31 is too clear for any doubt that the suit to be excepted from the cognizance of a Court of Small Causes must be one for an account. As was pointed out by Trevelyan J., in the Full Bench case of Kunjo Behary Singh v. Madhab Chandra Ghose, 23 Cal. 884 (P. B.), the jurisdiction of the Small Cause Court is only excluded where a suit is a suit for an account. After having refer-' red to the observations of Trevelyan J., in that' case, Mookerjee J., in Kailas Chandra v. Kiranenda Ghose, 24 cal. L. J. 187, observed as follows :

'If in order to grant relief to the plaintiff, it is neces-sary to take account, the suit is one for account within the meaning of Article 31 although the plaintiff may have chosen to put a definite money value upon his claim. In fact, with a view to determine the jurisdiction of the Court, such money value is invariably put upon the claim by the plaintiff in a suit for account. But whether the suit is one for account within the meaning of Article 31, must depend upon the relation in which the parties stand to each other, and the nature of the investigation required to afford relief to the plaintiff.'

6. In another case, Khenta Kamini v. Aswini Kumar, A. I. R. 1928 Cal. 424, Mukerji J., in construing Article 31 observed:

'It is clear that unless a decree for accounts is asked for, a suit for money against a person who is alleged to have wrongfully realised moneys due to the plaintiff does not come withn the Article.'

7. In our view, there is no real conflict between the decision of Mookerjee and Gaming JJ. reported in Uzir v. Hari Charan, A. I. R. 1917 Cal. 367 and those to which we have already referred. If, however, the case of Uzir v. Hari Charan, purports to lay down that a suit simpliciter for recovery of profits of immoveable property wrongfully received by a co-sharer defendant falls under Article 31, we must respectfully dissent from it. In any event, we are bound by the decision in the Full Bench case of Kunjo Behary Singh v. Madhab Chandra Ghose, 23 Cal. 884 (P. B.). In our view, Article 31 is concerned with a suit which is a suit for an account and not merely a suit for the recovery of profits of immoveable property 'which have been wrongfully received. That being 1952 Cal. 93 & 94 the case, the question to be determined is whether the suit against the petitioner was a suit for an account. In our view, although the plaintiff asked for a named sum, the suit was one for an account of the moneys which the petitioner might have received from opposite party No. 2 in excesss of her share of the rent. Whether a suit is one for accounts within the meaning of Article 31 must depend upon the relation in which the parties stand to each other. It is true that the accounting, if any, is of the simplest kind, but the plaintiff was entitled to ask for an account of what had been received from the tenant and for a decree for that sum. Indeed, the allegation in the plaint was that the petitioner and Opposite Party No. 2 were in collusion and were attempting to deprive the plaintiff of his share of the rents. The suit as against the petitioner was a suit for an account and was accordingly excepted under Article 31 from the cognizance of the Court of Small Causes. In decreeing the suit the Court below acted without jurisdiction and the decree must, in the result, be set aside. The rule is accordingly made absolute. In the circumstances of this case, there will be no order as to costs.

Guha J.

8. I agree.


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