Bandhu Pandey v. Gauri Dat Pandey

1. This is a Letters Patent appeal by the defendant against a judgment of a learned single Judge of this Court accepting the appeal of the plaintiff and remanding the case for decision on the merits. In Letters Patent appeal orally an objection has been taken that no second appeal lay to this Court, because the suit was one of a nature cognizable by a small causes court and the amount or value of the subject-matter did not exceed Rs. 500 and therefore under Section 102 of the Civil Procedure Code, no second appeal lay. The suit was brought by the plaintiff as a mortgagee under a usufructuary mortgage which embraced certain jungle land on which trees and Dak jungle grew and the usufructuary mortgage also embraced an occupancy tenancy. The plaintiff sued for damages for cutting the Dak jungle and removing fruit of the trees by the defendants and the amount claimed was Rs. 50 on each count, in all Rs. 100. There was nothing in the plaint to allege that the defendants acted with any criminal intention and it merely set forth that the defendants cut the Dak and took away the fruits. The written statement pleaded that the plaintiff had no concern with the jungle lands and that the defendants were entitled to act as they did.

2. It is argued that this case was excluded from the jurisdiction of the small causes court because of Article 35(ii), Second Schedule, Small Cause Court Act. This states that jurisdiction of the small causes court does not lie in

a suit for compensation for an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code, would be, an offence punishable under Chapter XVII of the said Code.

3. The question therefore is whether this suit was for compensation for an act which would be punishable as theft, etc., under Chapter XVII of the Indian Penal Code.

4. There was nothing in the plaint to indicate that the defendant acted with such knowledge or intention as would constitute an offence under Chapter XVII of the Indian Penal Code.

5. It was argued by the learned counsel for the plaintiff that we ought to have regard to the evidence in the case in addition to the pleadings in his plaint. We do not accept that proposition, but in any case it has not been shown that it was established by evidence in the case that the defendant acted in any manner which would deprive the small causes court of jurisdiction to try the suit. In actual fact the suit was filed on the regular side in the court-of the Munsif and was decided as a regular suit and dismissed and the plaintiff brought an appeal before the lower appellate court.

6. The matter of how far suits of a similar nature are excluded from the jurisdiction of the small causes court by Article 35(ii) of Schedule II has been considered in a number of rulings. Of these rulings, we would refer to one of the latest reported in Regbubar Dayal v. Mulwa. In that ruling, it was held that merely removing fruit or cutting trees under a bona fide claim of right, or as a result of a dispute, was not necessarily criminal offence and that a suit for compensation for such act would lie in the court of small causes. The present case is very similar and we consider that the present case could have lain in the court of small causes. Accordingly no appeal lies to this Court in view of the provisions of Section 102, Civil Procedure Code.

7. It was urged that this Court might take cognizance of the matter in revision under Section 115, Civil Procedure Code. But the learned single Judge has not purported to deal with the matter in revision and what we are called upon to decide is whether a second appeal lay to this Court. We consider that no second appeal lay to this Court and accordingly the judgment of the learned single Judge was a judgment passed without jurisdiction. We therefore, allow this Letters Patent appeal and we set aside the judgment of the learned single Judge of this Court and restore the decree of the lower appellate court dismissing the suit of the plaintiff. In the circumstances each party will pay their own costs in the two hearings in this Court.

8. Appeal allowed.