Chockiah Thevar v. Shanmugasundaram Chettiar

1. This is an appeal preferred against the decree and judgment of the learned District Judge of Tirunelveli in A.S No. 209 of 1953 setting aside the decree and judgment of the learned District Munsif of Tenkasi in O.S No. 184 of 1952. The facts are: The plaintiff sued the defendants for recovery of a sum of Rs. 570 paid by him as advance to the defendants with interest thereon in pursuance of the agreement for sale dated 6-12-1950, according to which the defendants agreed to sell the suit property to the plaintiff for Rs. 2250. The plaintiff agreed to purchase the property on the representations of the defendants that they had absolute title to the said property.

2. The plaintiff then discovered that the defendants had an other right in the suit property and there were two other encumbrances also on the said property, that these facts had deliberately been suppressed and that false representations of absolute title Bad been made thereby inducing the plaintiff to part with the sum of Rs. 570 and which he would not have otherwise done.

3. Therefore, the plaintiff asked the defendants to return the advance and on their failing to do so has filed this suit on the original side on the foot that as the defendants cheated the plaintiff and received Rs. 570 they had committed an offence punishable under S. 415, I.P.C, exempting this suit from the cognizance of the Small Cause Court under Article 35 of Sch. II, Provincial Small Cause Courts Act.

4. The learned District Munsif accepted the contentions of the plaintiff and rejected the defence of the defendants that they did not make fraudulent representations and thereby induce the plaintiff to part with the sum of Rs. 570 and that the plaintiff being none else than the brother-in-law of Tirumalaiyandi Tevar, he knew full well all the facts showing that the defendants had no absolute title to the property and knowingly entered into this transaction.

5. Therefore, he decreed the suit and on appeal by the defeated defendants the learned District Judge came to the conclusion that this was not a suit for compensation contemplated under Article 35 of Sch. II, Provincial Small Cause Courts Act and therefore this was a suit of a Small Cause nature, that the District Munsif had no jurisdiction to try the suit on the original side and purporting to follow the decision in — ‘Oor Nayakkan v. Arunachala Chettiar’, 1948 Mad 2 (AIR V 35) (A), directed the plaint to be returned for representation to the Court of the Sub-ordinate Judge of Tirunelveli to be filed on the Small Cause side.

6. The plaintiff has preferred the present appeal against the said decision. I may point out here that the defendant did not raise the question of jurisdiction at any time in the trial Court and only casually mentioned in the memorandum of appeal that the lower Court had no jurisdiction to try the suit on the Original Side as the suit was one of a Small Cause nature.

7. The principles which should guide us in determining whether a given suit is or is not of a Small Cause nature, are really well settled the jurisdiction of a Court with reference to the subject-matter of the litigation depends upon the nature of the claim brought before it. It is the nature of the claim and not the merits of the claim that is to be seen. Court should look only to original frame of suit and not the character which it ultimately assumes:—‘Lakshmandas v. Anna’, 32 Bom 356 (360) (B); — ‘Lala Bishun v. Mangal’, 24 All 457 (Note) (C) — ‘Peddappa v. Jenkatappa’, 1924 Mad 844 (AIR V 11) (D); — ‘Motabhai v. Surat City Municipality’, 20 Bom 675 (E); — ‘Ganappa Putta Hegde… v. Hammad Saiba….’, 1925 Bom 440 (AIR V 12) (F).

8. Now, the nature of the claim can only be ascertained by examining the allegations made in the plaint. — ‘Jaglal v. Harnarain Singh’, 10 All 524 (G); — ‘Raghubar Dayal v. Mulwa’, 1927 All 288 (AIR V 14) (H); — ‘Ganga Prasad…Defendant Applicant; v. Prabhu Dayal…Plaintiff Opposite Party.’, 1935 All 141 (2) (AIR V 22) (I); — ‘Bandhu Pandey v. Gauri Dat Pandey’, 1930 All LJ 1247 (J); — ‘Gorak v. Baldeo’, 1933 All 902 (AIR V 20) (K). The jurisdiction does not depend upon actual facts but upon allegations made concerning them even though they may be false, — ‘Padamsee v. Lakhmasee’, 1917 Cal 637 (1) (AIR V 4) (L).

9. But in construing the plaint, only the relevant allegations are to be considered and if a plaintiff inserts irrelevant allegations merely to show that the act amounts to a crime, those irrelevant allegations must be struck off and the Court should pay no regard to them. — ‘Nilakanth Ganesh v. Dhondya Garni’, 1942 Bom 316 (2) (AIR V 29) (M). Each case must be considered on its own allegations in the plaint and there may be circumstances in the past history of a case which may help in the interpretation of the plaint. — ‘Hukum Kandoo v. Jaintri Govind Rai’, 1931 All 595 (AIR V 18) (N); — ‘Bhan Datt v. Motilal’, 1932 All 472 (AIR V 19) (O).

10. Whether a suit is a Small Cause suit or not does not depend upon the defence that may be set up. — ‘Lala Ram v. Man Singh’, 1914 All 516 (AIR V 1) (P) — ‘Narpat Singh v. Jagoo Singh’, 1935 Oudh 413 (AIR V 22) (P1). The contention of the defendant cannot furnish any basis for determining the nature of the suit. — ‘Radhakisan v. Motilal’, 1933 Nag 82 (AIR V 20) (Q). The position of the defendant as disclosed in the written statement has no bearing on the question of jurisdiction. 10 All 524 (G); — ‘Zamin Shah v. Mukamil Shah’, 1938 Pesh 79 (AIR V 25) (R).

11. The nature of the defence cannot be examined for the purpose of determining the question of jurisdiction. — ‘Samir Khan v. Basi Ram’, 1925 All 821 (AIR V 12) (S); — ‘Samu Asari v. Anachi Ammal’, 1926 Mad 37 (AIR V 13) (T). If the allegations in the plaint make out a case which is excepted, it is immaterial what the defence raised is or what the actual findings arrived at by the lower Court are. — ‘Deoki Rai v. Haraldi Narayan’, 1926 All 760 (AIR V 13) (U); — ‘Kamal Krishna v. Madhusudhan’, 1930 Cal 240 (AIR V 17) (V); — ‘Jago v. Bajirao’, 1928 Nag 288 (AIR V 15) (W).

12. The jurisdiction does not depend upon the relief which the plaintiff might be ultimately entitled to obtain from the Court. — Tnayat Hussain v. Muhammad Askari’, 20 Ind Cas 421 (X). Neither an absurd prayer for an injunction in a purely money suit nor an omission of the word “compensation” in a suit which is essentially one for compensation but limited to the actual amount misappropriated and not including any prayer for damages, would alter the character of the suit and affect its being a suit of a Small Cause nature or not. — ‘Harbans Deo v. Raikumar’, 1930 All 702 (AIR V 17) (Y); — ‘Chote v. Jowahar’, 28 All 293 (Z); — ‘Raghubir Singh v. Singh Ram’, 1924 Lah 668 (AIR V 11) (Z1); — ‘Kashi Ram v. Desraj’, 1936 Lah 798 (AIR V 23) (Z2); ‘Harischandra v. Narayana’, 24 Mad 508 (511) (Z3).

13. If a suit of a Small Cause nature is brought before and tried by an ordinary Court, or vice versa, the trial is without jurisdiction, even though no objection is raised by the defendant as to the competency of the Court to entertain the suit. An objection as to jurisdiction cannot be given up by consent, nor can it be waived: — ‘Ramasamy v. R.G Orr’, 26 Mad 176 (Z4); — ‘Jadab Chandra v. Gopal Chandra’, 1924 Cal 837 (AIR V 11) (Z5); — ‘Davlatsinghji v. Khachar Hamir’, 34 Bom 171 (Z6); — ‘Abdur Rehman v. Bharma’, 1927 Bom 663 (2) (AIR V 14) (Z7); — ‘Abdul Kareem v. Burray Saib’, 1915 Low Bur 121 (2) (AIR V 2) (Z8); — ‘Nandlal v. Narayan’, 1920 Nag 39 (AIR V 7) (Z9); — ‘Haji Ahmed Hussain v. Sundar Lal’, 80 Pun Re 1893 (Z10).

14. Where there is an entire absence of jurisdiction, no action on the part of the plaintiff or consent on the part of the defendant can invest the Court with jurisdiction: — ‘Ramprasad v. Sricharan’, 1918 Cal 946 (AIR V 5) (Z11). When the Judge has no inherent jurisdiction over the subject-matter of a suit the parties cannot by mutual consent convert it into a proper judicial process, although they may constistitute the Judge their arbiter and be bound by his decision on the merits when these are submitted to him:— ‘Ledgard v. Bull’, 9 All 191 (PC) (Z12).

15. No amount of consent can confer jurisdiction where no jurisdiction exists: — ‘Meenakshi v. Subramaniya’, 11 Mad 26 (PC) (Z13). See also — ‘Kalian Dayal v. Kalian Naser’, 9 Bom 259 (265) (Z14); — ‘Debi Singh v. Hanuman Upadya’, 3 All 747 (748) (Z15); — ‘Bibi Ladli Begam v. Bibi Raje Rabia’, 13 Bom 650 (653) (Z16); — ‘Seetapathi v. Subbayya’, 33 Mad 323 (Z17).

16. Bearing these principles in mind, if we examine the facts of this case we find that the suit was not of a Small Cause nature. On the facts specifically alleged in the plaint distinctly alleging the offence complained 1927 All 288 (AIR V 14) (H), undoubtedly this suit fell under Article 35 of Sch. II, Provincial Small Cause Courts Act. The loss to the plaintiff was occasioned by an offence falling under Chapter 17, Penal Code.

17. The test employed to find out whether the allegations in the plaint make out a case of offence against property, the object being that all suits where serious allegations of commissions of offence are made should be taken away from the jurisdiction of the Small Cause Courts which try suits summarily — ‘Soundaram Ayyar v. Sennia Naickan’, 23 Mad 537 (563) (FB) (Z18); — ‘Kunjo Behari Singh v. Madhub Chundra’, 23 Cal 884 (890) (FB) (Z19), is ff in a criminal Court the evidence carried the case no further than what is stated in the plaint, would a conviction follow: — ‘Bhagwan Prasad v. Petu Kewat’, 1935 All 33 (AIR V 22) (Z20). Section 415, Penal Code requires

1. deception of any person;

2.(a) fraudulently or dishonestly inducing that person

(i) to deliver any property to any person; or

(ii) to consent that any person shall retain any property; or

(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body reputation or property.

18. The Explanation to S. 415, I.P.C states that a dishonest concealment of facts is a deception within the meaning of that section. Illustration (i) to the section states:

“A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyances to B, and receives the purchase or mortgage money from Z.A cheats.”

19. It is unnecessary to reset the allegations in the plaint and the evidence which is adduced in support of it and the refutation sought to be made by the defendants that they did not cheat and which was not accepted by the learned District Munsif who came to the conclusion that the facts of this case clearly take the suit out of the category of suits of Small Cause nature, and the exemption under Article 35 of Sch. II, Provincial Small Cause Courts Act is clearly applicable. — ‘Man Singh v. Madho Singh’, 1924 All 430 (AIR V 11) (Z21). In the result, the decree and judgment of the learned District Judge, which are based upon no reasoning at all, are set aside and the appeal is remanded for disposal on merits by the learned District Judge, Tirunelveli. The appellant will get his costs of this appeal from the respondents.

S.L.L

20. Order accordingly.