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Hara Mohan Saha Vs. Sudhanshu Bhusan Pal and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal83,85Ind.Cas.1002
AppellantHara Mohan Saha
RespondentSudhanshu Bhusan Pal and anr.
Cases ReferredKali Krishna Tagore v. Izzatannissa Khatun
Excerpt:
provincial small cause courts act (ix of 1887), section 28 - civil procedure code (act v of 1908), section 115, order vii, rule 10, order xliii, rule 1(a)--return of plaint by small cause court for presentation to ordinary civil court--return of plaint by civil court--order, whether appealable--revision--question of title--procedure in civil court. - .....which the plaintiff claimed to be his properly. the defendant disputed the plaintiff's title and claimed title to half of the property in himself. the learned small cause court judge was of opinion that the relief claimed by the plaintiff depended upon questions of title to immoveable property which the small cause court judge could not finally determine and he, therefore, made an order for the return of the plaint to be presented to a court having jurisdiction, to determine title. the order of the small cause court judge runs as follows: 'it is accordingly ordered that the plaint be returned to be presented to a court having jurisdiction to determine the plaintiff's claimed title to the immoveable property mentioned in the plant.' this is in accordance with the provisions of section.....
Judgment:

B.B. Ghose, J.

1. This Rule was obtained by the plaintiff in the Court below and the questions involved in this are of a somewhat peculiar nature. The plaintiff brought a suit against the defendants in the Court of Small Causes at Dacca, claiming Rs. 120 as damages against the defendants for use and occupation of a certain piece of land which the plaintiff claimed to be his properly. The defendant disputed the plaintiff's title and claimed title to half of the property in himself. The learned Small Cause Court Judge was of opinion that the relief claimed by the plaintiff depended upon questions of title to immoveable property which the Small Cause Court Judge could not finally determine and he, therefore, made an order for the return of the plaint to be presented to a Court having jurisdiction, to determine title. The order of the Small Cause Court Judge runs as follows: 'It is accordingly ordered that the plaint be returned to be presented to a Court having jurisdiction to determine the plaintiff's claimed title to the immoveable property mentioned in the plant.' This is in accordance with the provisions of Section 23 of the Provincial Small Cause Courts Act. What happened afterwards was that the plaintiff in pursuance of that order presented the plaint to the Civil Side of the same Court, the Presiding officer being a Munsif having jurisdiction, to try & suit for the, money claimed in the plaint. The learned Munsif, however, thought that the value of, the entire property which the plaintiff claimed was Rs. 11,500 and as a suit of that value was beyond his jurisdiction he was of opinion that he could not entertain the suit and he made an order 'that the plaint should be returned to the filing Pleader for presentation to the proper Court according to the former return order under Section 23 of the Provincial Small Cause Courts Act.' This order is dated the 24th March 1924. The learned Vakil for the petitioner contends that the true meaning of the order made under Section 23 was that he should present his plaint to a Civil Court having jurisdiction only to try his suit as he valued it, that is to say, to give him relief to the extent of Rs. 120 and he had so presented the plaint to the Court having jurisdiction to try that suit and the order made, by the Munsif on the 24th March 1924 was, therefore, without jurisdiction.

2. A preliminary objection has been taken on behalf of the opposite party that as the order for return of the plaint is appealable, as it must have been passed under Order VII, Rule 10, C.P.C. from which an appeal is allowed under Order XLIII, Rule (a), his application for revision is incompetent. The learned Vakil for the, petitioner, however, relies on the case of Chander Badan Koer v. Sheodhar Prosad 18 Ind. Cas. 325 : 18 C.W.N. 380, where it was held by a Division Bench of this Court that if a plaint has been returned under Section 23 of the Provincial Small Cause Courts Act to be presented to another Court and it is presented to an ordinary Civil Court, any order for return of the plaint by the Civil Court afterwards is not an order under Order VII, Rule 10, C.P.C. and, therefore, no appeal lay from such an order. I am bound by the decision and I must hold that there was no appeal against the order of the Munsif dated the 29th March 1924.

3. The question then simply turns upon this as to whether the order of the Smell Cause Court Judge dated 15th February 1924 returning the plaint should be so construed that it should be presented to a Court having jurisdiction to try a question of title relating to immoveable property worth Rs. 11,000 odd or whether it was, an order simply that the plaint as framed should be presented to a Civil Court for decision. The question depends upon a consideration of the nature of the relief claimed by the plaintiff in the suit. It has been decided in a number of cases, of which 1 need only mention the case of, Kali Krishna Tagore v. Izzatannissa Khatun 24 C. 557 : 13 Ind. Dec. (N.S.), that when a suit is presented to a Civil Court in pursuance of an order made by a Small Cause Court Judge under Section 23 of the Provincial Small Cause Courts Act, the nature of the suit is not altered. It remains a. suit of the nature triable by a Small Cause Court, and although an appeal is allowed from the judgment passed, by a Munsif in such a case, a second appeal is incompetent on the ground that the suit is of a nature triable by a Small Cause Court. It seems to me, therefore, to be reasonably clear that when a plaint is presented to the Civil Court under an order made under Section 23 of the Provincial Small Cause Courts Act the case should be tried as framed and the question of title may be gone into only incidentally in order to decide the merits of the case. This is also apparent from the concluding words of Section 23 of the Provincial Small Cause Courts Act which are: 'Return the plaint to be presented to a Court having jurisdiction to determine the title.' It does not say, 'determine the title finally.' The only object as it seems to me of this section is to relieve the Small Cause Court from going into complicated questions of title. It does not mean that where the claim is one coming within the jurisdiction of the Provincial Small Cause Court, it should be converted into a claim for title to immeveable property when the plaint is directed to be returned under Section 23 of the Act.

4. On these grounds I am of opinion that the order of the learned Munsif dated the 23rd March 1924 is without jurisdiction and must be set aside. The Rule is absolute. The learned Munsif is direcled to entertain the plaint and try the suit, according to law.

5. The petitioner is entitled to his costs in this Court. I assess the hearing-fee at three gold mohurs.


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