S.S Dhavan, J.:— This is a defendant's second appeal against the concurrent decisions of the courts below decreeing the plaintiffs-respondents' claim for Rs. 200/- as compensation for the removal of a tree belonging to the plaintiffs. It raises an interesting question of law — namely whether that suit for the recovery of damages for a tree alleged to have been dishonestly removed by the defendant from the plaintiffs' land is not excepted from the jurisdiction of the court of small causes under clause (35)(ii) of the Second Schedule of the Provincial Small Cause Courts Act because the defendant was acquitted by a competent criminal court on the finding that the tree belonged to him. The plaintiffs and the defendant are residents of the same village and their plots of land adjoin. The plaintiffs alleged that the tree stood on their, plot and they felled it but the defendant dishonestly removed it with the intention of stealing it and misappropriated the timber. He alleged that he filed a criminal complaint against the defendant under section 379, I.P.C which was dismissed by the Magistrate. He valued the timber at Rs. 200/- and prayed for a decree for this amount. The defendant contested the suit and claimed that the tree stood somewhere near the boundary of the two plots and this fact was really responsible for the dispute between the parties. The court Amin reported that the tree stood on the plaintiffs' land and his report was accepted by both the courts below which have decreed the suit. The defendant has now come to this Court in second appeal.

2. Sri. J.N Chatterji, learned counsel for the appellant did not challenge the findings of fact recorded by the court below, but he raised a question of jurisdiction. He contended that the plaintiffs' suit, being one for the recovery of an amount less than Rs. 500/-, was cognizable, by a court of small causes, and therefore the jurisdiction of any other civil court was barred under section 10 of the Provincial Small Cause Courts Act. Sri. Chatteriji conceded that ordinarily a suit for compensation for an act which is an offence punishable under Ch. 17, I.P.C or would be an offence but for the provisions of Chapter 4 of that Code, would come within the prohibition of the Second Schedule, Clause (35)(ii) of the Act; but he contended that in the present case a criminal court of competent jurisdiction had acquitted the defendant and held that the tree belonged to him and therefore it could not possibly be said that the act of the defendant was an offence under the Indian Penal Code. Sri. Chatterji pointed out that the defendant had been acquitted not on the ground that he bona fide believed that the tree belonged to him and was thus protected under Ch. 4, I.P.C, but because it had been held that the tree was his own property and no offence had been committed by him. The plaintiffs themselves had admitted in their plaint that the defendants had been acquitted, and after a finding of the criminal Court that the defendants' act was not an offence under-the Penal Code it was not open to the civil court to speculate whether the plaintiffs' allegations disclosed any offence punishable under that Code. Learned counsel argued that cl. (35)(ii) only excepts from the jurisdiction of the Small Cause Court a suit for compensation for an act which is an offence, and it would be absurd for the civil court to say that the plaint discloses such an offence after a competent criminal court had held that the act of the defendants was no offence.

3. The argument raises an interesting point of law which is not exactly covered by any previous, decision. At first sight it appears plausible. It is true that the defendant was acquitted by the criminal court on the ground that the tree removed by him was his own and therefore it may be said that court held that the act of the defendant (for which the plaintiffs claim compensation in the present suit) was not an offence under the I.P.C even without the protection of Chapter 4 of that Code. The question, however, is whether the verdict of the criminal court must operate as res judicata when the civil court has to decide the question of its own jurisdiction to try the suit. In my opinion, it does not.

4. The policy of the Provincial Small Cause Courts Act is that suits of a small valuation should be tried expeditiously by a special court but that disputes involving complicated or Substantial questions should be tried by the Ordinary courts even if the valuation is small. The excepted suits are contained in a long list in the Second Schedule of the Act. These are suits in which the dispute is incapable of being decided in a summary manner. Included in cl. (35) of the list are suits for compensation for loss caused by the death of a person as the result of a wrongful act, for wrongful arrest, malicious prosecution, libel slander, adultery or seduction, breach of terms of marriage, inducing another person to break a contract made with the plaintiff, obstruction of an easement or diversion of a water course, for an act which is an offence punishable by the Penal Code or would he an offence hut for the protection of Chapter 4 of the Code (I nave omitted the other items in Clause (35) of the Act.).

5. The question which arises in this case may be stated thus: How is the court to determine whether a particular suit comes within any of the categories enumerated in cl. (35) and therefore not cognizable by the small cause Court?

6. It is obvious that the court must follow a test which will be uniformly applied to all types of cases which are covered by cl. (35); for example, it cannot adopt one test for a suit for compensation for libel under (d) and another for a suit for compensation for an act which is an offence under the Penal Code. Secondly, the Court must decide the question of its jurisdiction on the well known principle that the allegations in the plaint determine jurisdiction. Thirdly, the Court cannot take any extraneous facts into consideration unless these are facts which it is bound to notice — such as a decree of a civil court operating as res judicata.

7. Applying these principles, it is clear that the Court can determine the question of its jurisdiction only by examining the plaint and deciding whether the relief claimed by the plaintiff falls within the prohibited categories of cl. (35). In the present case, the plaintiffs alleged that the defendants dishonestly removed a tree belonging to him and stole the timber. These allegations disclosed an offence punishable under Chapter 17 of the Penal Code. The fact that a criminal court had acquitted the defendants on the ground that the tree belonged to them cannot be considered in determining whether the plaint discloses a cause of action triable by the Court.

8. If Sri. Chatterji's argument is accepted, the civil court must he held to be bound by the verdict of the criminal court and accept its finding irrespective of its own opinion on the question whether the plaint discloses an offence punishable under the Penal Code. This will lead to curious results. Sri. Chatterji conceded that in an action for damages for a wrongful act which is also punishable as a crime the civil court is not bound by the findings of the criminal court. It will be inconsistent to hold that in determining the main controversy between the parties the Court can ignore the finding of the criminal court, hut in determining its jurisdiction at the outset it is bound by then. Moreover, the verdict of the civil court will he liable to fluctuations in accordance with the decision of the criminal courts. If on an examination of the plaint, it decides that it has jurisdiction to try the suit and passes a decree in the plaintiffs favour, but subsequently the criminal court acquits the defendant on the ground that the property removed by the defendant was his own, the jurisdiction of the civil court will he barred with retrospective effect and its decree nullified. At a later stage, if the decision of the criminal court of first instance is reversed on appeal by a higher court which holds the defendant guilty of theft, the jurisdiction of the civil court will be revived and its decree may be effective once again; and so the process revival and reversal would continue until the matter is finally decided by the Supreme Court. I am not inclined to accept the principle Which will render the jurisdiction and decision of the civil court able to such violent fluctuations the instance of a hierarchy of criminal courts. I think the question whether the plaintiffs' suit falls within the prohibited categories of cl. (35) must be decided according to the well recognised principle that the court must examine the plaint and consider whether it discloses a case which falls within or without those categories.

9. In Deoki Rai v. Harakh Narain Lal, AIR 1926 All 760, a Division Bench of this Court (Sulaiman and Boys, JJ.) took the view that the question whether a Suit falls within cl. (35)(ii) is to be determined in the first place by a reference to the plaint. In that case no criminal court had given its verdict before the suit was filed, but the principle enunciated by the Bench will apply to a case like the present one. As stated above, the findings of the criminal court are irrelevant in the determination of this question.

10. Sri. Chatterji relied on the following observation of Boys, J. in that case:

“Next we have to see whether the facts alleged in the particular plaint — if the fads had been alleged before a Magistrate — would have justified a Magistrate in holding that there were allegations of an offence coming within one or other of the definitions in Chapter 17 of the Penal Code.”

Learned counsel argued that this observation means that the civil court is to imagine itself in the position of a Magistrate and consider whether he would have held that the defendant had committed any offence; but there is no scope for speculation about what the Magistrate would or would not decide when a competent Magistrate had already decided the question and held that the defendant's act did not amount to an offence. I do not agree. Boys, J. made this observation to express in somewhat popular language what Sulaiman, J. had said already. It must be noted that the learned Judge began his judgment with the words ‘I agree’. He did not qualify his concurrence with the remarks that he wag doing it for reasons of his own. I do not think that much importance can be attached to the manner in which Boys, J. enunciated the same principle. Moreover, the learned Judge meant that the civil court has to place itself in the position of a Magistrate — in other words, to apply the principles of criminal law while considering whether the allegations in the plaint disclose any offence. He did not mean that instead of applying its own mind the civil court must accept the findings of another court in an entirely different case.

11. The objection raised against the jurisdiction of the Court must therefore fail.

12. It was not raised at any stage of the dispute below, but in view of the importance of the point involved I allowed Sri. Chatterji to argue this point before me.

13. No other question was raised.

14. The appeal is dismissed with costs. Leave to appeal is granted.

EF/K.S.B

15. Appeal dismissed.