1. Two grounds have been token in this case. The first is that the learned Judge was wrong in giving a decree So the plaintiff on a case which was not made in the plaint. This has prejudiced the defendant as he was unable to meet the plaintiff's case as placed before the Judge and accepted by him. The allegations in the plaint are to the effect that the plaintiff had some money deposit-ad with defendant No. 2 and that the plaintiff had taken Rs. 100 out of the money in order to pay certain taxes on timber cut by him. With regard to this case the Judge observes as follows: 'This Rs. 100, is described as plaintiff's money kept in deposit with defendant No. 2, but defendant No. 1 took that as a loan from defendant No. 2 and then promised to pay to the plaintiff. This of course is not proved.' Having disbelieved the plaintiff's case as set out in the plaint, the learned Judge proceeds to determine whether anything is due to the plaintiff from defendant No. 1 and he finds that Rs. 100 was due from the defendant No. 1 Jo the plaintiff on account of taxes on timber cut from the forest belonging jointly to the plaintiff and one Latifa Khatun. His further finding is that the defendant promised to pay this Rs. 100 to the plaintiff and he gave the plaintiff a decree. In my opinion, this is not the correct procedure to follow. If the Judge disbelieved the case as made in the plaint, his course was to dismiss the suit, or, if he was of opinion that in the interests of justice the plaintiff should be given an opportunity to amend the plaint, he should have given that permission so that the defendant might have notice of the case alleged against him and opportunity to meet it.
2. The second point is that on the findings of the Judge the suit is not cognizable by the Small Cause Court. The Judge has found that the money was payable to the plaintiff on account of taxes on timber out. On the authority of the decision of this Court in the cases of Abduluh Sarkar v. Asraf Ali Mandal (1908) 7 C.L.J. 152 and Bande Ali v. Amud Sarkar (1916) 19 C.W.N. 415 it is contended that a suit for recovery of royalty on timber cut is not cognizable by a Court of Small Causes. I do not know what the real contest between the parties was as it has not been disclosed on account of the plaintiff not making out this case in the plaint. This point really depends upon the first contention of the petitioner. I think that the proper order that should be passed in this case is that the case should be remitted to the Court below with a direction that if the Court is of opinion that the plaintiff has not proved his case as made in the plaint he should dismiss the suit, or, if it be of opinion that the plaintiff should be given an opportunity for amending his plaint, he should give such leave and give the defendant an opportunity of taking all objections that he may be advised to take in respect of the amendment so made.
3. The Rule is made absolute. Costs will abide the result. I assess the hearing fee at one gold mohur.