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Case Number

Small Cause Court Suit No. 15090 of 1939

Judges

Sen, J.

Acts

sec. 38 of the Presidency Towns Insolvency Act.

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Smart Summary

Structured Summary of the Opinion (Sen, J.)

Factual and Procedural Background

The plaintiff, Ashutosh Dey, instituted a suit in the Court of Small Causes at Calcutta against five persons: (1) Foolchand Keshabdeo, (2) Jotindra Mohan Nundy, (3) Jagat Mohun Nundy, (4) Sudhangshu Mohun Nundy and (5) Sm. Radharani Dassi.

The plaintiff alleged that he and Defendants Nos. 2–5 were co-sharers of premises No. 8, Ram Kumar Rakshit Lane, that he held a 29/125th share and the other co-sharers 96/125th. He claimed his share of rent from Defendant No. 1 (Foolchand Keshabdeo) as tenant of those premises; alternatively he claimed that if Keshabdeo had paid rent to Defendants Nos. 2–5, those defendants should account to the plaintiff. Defendant No. 1 contended he was a tenant under Defendants Nos. 2–5 and had nothing to do with the plaintiff. Defendants Nos. 2–5 alleged they were sole owners and that the plaintiff had no share.

No oral evidence was given in the trial; certain documents were produced. The trial Judge entered a decree in favour of the plaintiff, holding that the plaintiff had the share claimed and that Keshabdeo was a tenant under the plaintiff and his co-sharers. An application to the Full Bench of the Court of Small Causes under section 38 of the Presidency Towns Insolvency Act was made; the Full Bench upheld the trial decision. Defendants Nos. 2, 3 and 4 then obtained a rule in this Court challenging that decision.

Legal Issues Presented

Whether the decision of the Court of Small Causes is such as would justify this Court in exercising its revisional powers under section 115 of the Code of Civil Procedure.

Arguments of the Parties

Petitioners' Arguments (Mr. Bose)

The jurisdiction of the Court of Small Causes was ousted because a substantial question of title to immovable property was raised, and therefore the learned Judge had no jurisdiction to pronounce judgment.
The learned Judge acted illegally and with material irregularity by failing to consider certain documentary evidence: an affidavit of assets filed in probate proceedings, an inventory filed in those proceedings, and a consent decree.
The learned Judge acted with material irregularity in giving the plaintiff a decree in the absence of any evidence that the plaintiff was the reversioner of Sudebi Dassi (alleged to be the last limited owner of the share claimed).
The learned Judge erred in giving the plaintiff a decree without expressly finding that a landlord–tenant relationship existed between the plaintiff and Defendant No. 1 (Keshabdeo).

Respondent's Arguments

The respondent relied on decisions of the Bombay High Court (including a Full Bench decision) that a Court of Small Causes may entertain suits where the principal relief sought is the payment of money even if the plaintiff's claim rests upon an incidental question of title to immovable property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Puttangowda Bin Mallangowda Patil v. Nilkanth Kalo Deshpande (Full Bench, Bombay High Court)	That a Court of Small Causes could entertain a suit the principal purpose of which was to determine a right resulting in payment of money (e.g., recovery of value), even though the plaintiff's claim proceeded on the basis that title to land (and trees on it) belonged to him — i.e., title may be incidental where the relief sought is monetary.	The Court referred to and relied on this Full Bench decision to support the conclusion that the Small Causes Court had jurisdiction because the question of title in the present suit was incidental to a claim for rent/money.
Rajendra Mullick v. Nanda Lal Gupta (this Court)	Observation that if the question of title was the sole question the jurisdiction of the Small Causes Court would be ousted; on the facts of that case the question of title was incidental and the Small Causes Court therefore had jurisdiction.	The Court observed that Rajendra Mullick does not assist the petitioners because, as in that case, the title question in the present matter was not the sole question — one central question is whether Defendant No. 1 is tenant under the plaintiff.
Lodai Mollah v. Kally Dass Roy	Where a person sued for rent sets up the title of a third party and alleges he holds under and pays rent to that third party, such third party ought not to be made a party so as to convert a simple suit for rent into one for determination of title to the property.	The Court distinguished Lodai Mollah: here the plaintiff claimed to be a co-sharer landlord and was obliged to join his alleged co-sharers as necessary parties; joining them did not convert the suit into an inappropriate title suit for the Small Causes Court.
Ameer Hossein Khan's case (Privy Council)	Authoritative interpretation of section 115(c) as addressing jurisdictional issues and irregularities in the exercise of jurisdiction, rather than being a wide provision for correcting all errors of law.	The Court expressed an inclination to follow this Privy Council approach as limiting the scope of revision under section 115(c) to jurisdictional and procedural mischiefs rather than routine errors of law.
Balakrishna Udayar v. Vasudeva Aiyar (Privy Council)	Statement that section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it; it is not directed against conclusions of law or fact where the question of jurisdiction is not involved.	The Court relied on this pronouncement to support the conclusion that section 115(c) does not permit interference with conclusions of law or fact that do not implicate jurisdictional error.
Shew Prosad Bangsi-dhar v. Ramchandra Haribux (Chief Justice Jenkins)	Statement that section 115 can be called in aid only when the failure of justice is due to one of the procedural faults indicated in that section; an error of law (not of procedure) does not justify interference under section 115.	The Court cited this passage to reinforce the view that errors of law by the Small Causes Court do not, without more, justify revision under section 115.

Court's Reasoning and Analysis

The Court framed the sole question for decision as whether the decision of the Court of Small Causes warranted intervention under section 115 of the Code of Civil Procedure.

Step-by-step reasoning as stated in the opinion:

Jurisdictional character of the suit — The Court observed that although a substantial question of title to immovable property was involved, that question was incidental to the principal relief sought (recovery of rent or, alternatively, recovery of money paid). Because the suit was for recovery of rent/money, the Court of Small Causes retained jurisdiction to try it.
Authority relied upon — The Court relied on a Full Bench decision of the Bombay High Court (Puttangowda) and other Bombay authorities to show that a Small Causes Court may entertain suits seeking monetary relief even if title issues are incidentally involved. The Court found these authorities supportive of its view.
Assessment of contrary authority — The petitioners relied on Rajendra Mullick and Lodai Mollah. The Court explained that Rajendra Mullick itself recognized that where title is the sole question jurisdiction would be ousted, but on its facts title was incidental; accordingly that decision did not aid the petitioners. Lodai Mollah was interpreted narrowly: it prohibits converting a simple rent suit into a title determination by improperly joining a third party, but does not establish a general rule ousting Small Causes jurisdiction where necessary parties (as here, alleged co-sharers) must be joined.
Allegation of non-consideration of documents — As to the contention that the learned Judge ignored certain documents (affidavit of assets, inventory, consent decree), the Court stated that it was not shown that the Judge had not considered them; moreover, a Judge of a Court of Small Causes is not required to set out detailed reasons on every point — only the points for determination and the decision need be set out. Even if the documents had been ignored, the Court held that such omission would not fall within the mischief of section 115(c), which the Court interpreted as concerning jurisdictional and procedural errors rather than every error of law.
Scope of section 115(c) — The Court adopted the view of two Privy Council decisions (Ameer Hossein Khan and Balakrishna Udayar) and the reasoning in Shew Prosad Bangsi-dhar that section 115(c) is confined to jurisdictional or procedural irregularities and does not permit revisional interference with pure conclusions of law or fact where jurisdiction is not implicated.
Evidence on reversioner status — Concerning the contention that there was no evidence that the plaintiff was the reversioner of Sudebi Dasi, the Court found that proceedings before the Collector of Calcutta were in evidence and that the Collector's decision was to the effect that the plaintiff was such a reversioner; the relationship apparently was not challenged in the suit.
Finding of landlord–tenant relationship — Although the learned Judge did not set out an express, formal finding that the relationship of landlord and tenant existed between the plaintiff and Keshabdeo, the Court held that the judgment read as a whole implied such a finding; the absence of an express finding was not, in the Court's view, a proper ground for interference under section 115.

Holding and Implications

Holding: The rule obtained by Defendants Nos. 2, 3 and 4 is discharged with costs.

Implications:

The revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure was not invoked: the Court found no jurisdictional error or procedural irregularity warranting interference with the decision of the Court of Small Causes or its Full Bench.
Direct effect on the parties: the decree of the Court of Small Causes (as affirmed by its Full Bench) in favour of the plaintiff stands; the petitioners' challenge in this Court fails and they are ordered to pay costs.
The opinion does not purport to lay down any broad new precedent beyond affirming the narrow interpretation of section 115(c) (following cited Privy Council authority) and applying existing authority on the incidental nature of title questions in suits for monetary relief.

Solicitors recorded in the opinion: S.K. Butt for the Petitioner; Nahar & Datta for the Respondent.

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Ashutosh Dey, v. Foolchand Keshabdeo And Anr.

Sen, J.:— One Ashutosh Dey instituted a suit in the Court of Small Causes at Calcutta against five persons, (1) Foolchand Keshabdeo, (2) Jotindra Mohan Nundy, (3) Jagat Mohun Nundy, (4) Sudhangshu Mohun Nundy and (5) Sm. Radharani Dassi.

2. The Plaintiff's case was that he and the Defendants Nos. 2 to 5 were co-sharers with respect to premises No. 8, Ram Kumar Rakshit Lane. He claimed that he had a 29|125th share therein, and the other co-sharers had 96|125th share. He alleged that the Defendant No. 1 (Foolchand Keshabdeo) was a tenant of these premises under himself and his co-sharers, and he claimed his share of the rent from Keshabdeo. In the \ alternative he claimed that if Keshabdeo had paid all the rent to the Defendants Nos. 2 to 5 those Defendants should pay the Plaintiff his share of the rent. The Defendant, Keshabdeo, took up the position that he was a tenant under Defendants Nos. 2 to 5 and that he had nothing to do with the Plaintiff.

3. The Defendants Nos. 2 to 5 claimed that they were the sole owners of the premises and that the Plaintiff had no share therein.

4. No oral evidence was given, but certain document's were adduced Inevidence. The learned Judge passed a decree in favour of the Plaintiff, holding that the Plaintiff had the share claimed by him in the premises and he found that Keshabdeo was a tenant under the Plaintiff and his co-sharers. Against this decision an application was made to the Full Bench of the Court of Small Causes under sec. 38 of the Presidency Towns Insolvency Act. The Full Bench upheld the decision of the trial Judge. Thereupon the Defendants Nos. 2, 3 and 4 moved this Court and obtained a rule.

5. The only question for determination is whether the decision of the Court of Small Causes is such as would justify this Court in exercising its revisional powers under the provisions of sec. 115 of the Code of Civil Procedure.

6. Mr. Bose on behalf of the Petitioners raises the following points:—

(1) He says that inasmuch as a substantial question of title to immovable property was raised the jurisdiction of the Court of Small Causes was ousted, and the learned Judge had no jurisdiction to pronounce judgment.

(2) He contends that the learned Judge acted illegally and with material irregularity in the exercise of his jurisdiction inasmuch as he did not consider certain pieces of documentary evidence, namely, an affidavit of assets filed in probate proceedings, an inventory also filed in those proceedings and a consent decree.

(3) He contends that the learned Judge acted with material irregularity in giving the Plaintiff a decree in the absence of any evidence to show that the Plaintiff was the reversioner of one Sudebi Dassi whom the Plaintiff alleged to be the last limited owner of the share claimed by him in these premises.

7. Lastly he contends that the learned Judge has erred in giving the Plaintiff a decree without finding that the relationship of landlord and tenant existed between the Plaintiff and Defendant No. 1.

8. In my opinion, although a substantial question of title to immovable property was involved in the suit, this question was merely an incidental one, and the Court, therefore, had jurisdiction to try the suit which was for the recovery of rent and in the alternative, for the recovery of money had by the Defendants on behalf of the Plaintiff.

9. In this connection I would refer to the decision of a Full Bench of the Bombay High Court in the case of Puttangowda Bin Mallangowda Patil v. Nilkanth Kalo Deshpande(1). The Plaintiff brought a suit in the Court of Small Causes to recover a sum of Rs. 12 as the value of certain trees felled by the Defendant. The Plaintiff's claim to relief proceeded on the basis that the trees belonged to him because the land on which they stood also belonged to him. The question was raised that the Small Causes Court had no jurisdiction to entertain the suit. The Full Bench held that a Court of Small Causes could entertain a suit, the principal purpose of which was to determine a right to immovable property provided the suit in form did not ask for that relief, but for the payment of a sum of money.

10. There are other cases of the Bombay High Court to the same effect. These cases are relied upon by the learned Counsel appearing on behalf of the Respondent.

11. Mr. Bose on the other hand relied upon the decision in this Court in the case of Rajendra Mullick v. Nanda Lal Gupta(2). In this case the learned Chief Justice made an observation that if the question of title was the sole question in the case, the jurisdiction of the Small Causes Court would be ousted. He held on the facts of the case before him that the sole question was not one of title and, therefore, the Court of Small Causes had jurisdiction. The facts of that case were these:—

The Plaintiff sued the Defendant for rent of certain premises. The Defendant stated that he had surrendered his lease to the Plaintiff and taken a fresh lease from a third party who had put him in possession. The Court of Small Causes referred the matter to this Court for their decision whether in these circumstances the Court of Small Causes could try the suit. This Court held that the question of title arose incidentally in the suit and, therefore, the Court of Small Causes had jurisdiction.

12. In the present case also I would point out that the question of title to immovable property is not the sole question involved in the case. One of the questions involved is whether or not the Defendant Foolchand Keshabdeo is a tenant under the Plaintiff Ashutosh Dey. In my opinion the case relied upon by Mr. Bose does not help him and there is no decision placed before me which would indicate that in the circumstances of the present case the jurisdiction of the Small Causes Court would be ousted.

13. Mr. Bose also relied upon the well-known decision of Lodai Mollah v. Kally Dass Roy(3) and contended that where substantial questions of title have been raised in a suit for rent the Court should not entertain the suit, and it should direct the parties to have the question of title litigated in the proper Court.

14. Now, Lodai Mollah's case does not lay down any such principle. All that it says is this: where a person sued for rent sets up the title of a third party and alleges that he holds under and pays rent to him, such third party ought not to be made a party to the suit so as to convert a simple suit for rent into one for determination of title to the property in respect of which the rent is claimed.

15. In that case the Plaintiff sued certain persons for rent. Those persons set up title in somebody else. The Plaintiff did not join those persons as parties. But the Subordinate Judge insisted on their being joined as parties, and thereafter decided the question of title. This Court held that the procedure of the Subordinate Judge was erroneous.

16. The present case is quite different. Here the Plaintiff claims to be a co-sharer landlord with the Defendants Nos. 2 to 5. He was bound to add them as parties to this suit for rent inasmuch as he alone could not sue for rent. Therefore, there has been no error committed in making the Defendants Nos. 2 to 5 parties to this suit; nor is the fact of their being parties to the suit a circumstance which would oust the jurisdiction of the Court of Small Causes.

17. As regards the point that the learned Judge has not considered certain documents put in evidence, all I need say is that it has not been shown that the learned Judge has not considered them. The documents were there, and I must presume that the learned Judge did consider them. The judgment is that of a Court of Small Causes, and it is not necessary for a Judge of the Court of Small Causes to give the reasons for his decision on the points which arose for determination. All that he need do is to set out the points for determination, and his decision thereon. This the learned Judge has done. It is true he has given certain reasons for his decision in which he has not mentioned these documents. That does not show that he has ignored these documents.

18. Further, even if he ignored these documents, I am of opinion that such omission would not come within the mischief of sec. 115 (c). In my opinion sec. 115 (c) applies to errors committed in connection with the exercise of jurisdiction or errors committed in respect of procedure. It does not apply to every error of law committed by a Judge.

19. I am aware that there are authorities which have interpreted sec. 115 (c) in a manner which gives this Court a very extended power of interference in revision. I am inclined, however, to follow the two Privy Council decisions in Ameer Hossein Khan's case(4) and the case of Balakrishna Udayar v. Vasu-deva Aiyar(5). In the last mentioned case referring to sec. 115 their Lordships said this:—

“It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.”

20. I was also referred in this connection to the case of Shew Prosad Bangsi-dhar v. Ramchandra Haribux(6) where Chief Justice Jenkins said:—

“It appears to me that sec. 115 can only be called in aid when the failure of justice, if any, has been due to one or other of the faults of procedure indicated in that section. If there was an error committed (by the Small Causes Court Judge) it was an error of law and not of procedure, and in my opinion Mr. Justice Fletcher had no power to interfere”.

21. As stated before, Mr. Bose also argued that there was no evidence to show that the Plaintiff was the reversioner of Sudebi Dasi, the last limited owner. I find, however, that there was such evidence. The proceedings before the Collector of Calcutta were put in evidence and the decision of the Collector was to the effect that the Plaintiff was a reversioner of Sudebi Dasi. The relationship between the Plaintiff and Sudebi Dasi was apparently never challenged in the present suit.

22. The last point of Mr. Bose is also not of substance.

23. The judgment read as a whole does imply a finding that the relationship of landlord and tenant exists between the Plaintiff and Keshabdeo. It is true that there is no express finding. That, in my opinion, matters little especially in the case of a judgment of a Court of Small Causes. In any case the absence of such an express finding is not a matter which would attract the interference of this Court under sec. 115 of the Code of Civil Procedure.

24. In these circumstances, I hold that this Rule must be discharged with costs.

Solicitors: S.K Butt for the Petitioner; Nahar & Datta for the Respondent.

C.C

Ashutosh Dey, v. Foolchand Keshabdeo And Anr.

Structured Summary of the Opinion (Sen, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Mr. Bose)

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ashutosh Dey, v. Foolchand Keshabdeo And Anr.

Comments