Bhugwanbutti Chowdhrani v. A.H. Forbes

Rampini and Pratt, JJ.:— The suit out of which this appeal arises is one in which the plaintiff sought to recover the sum of Rs. 1,138-13-11, on account of cesses, etc. frond the defendant, who is the holder of a puntilease under her. The defendant does not dispute his liability. He only contests the rate at which he is sued.

The point, with regard to which the parties are at issue in this second appeal, is as to the rate at which the defendant is to pay road cess and public works cess. The plaintiff (second appellant before us) contends that the defendant is liable to pay these cesses at the rate of Rs. 415-10 per annum. The defendant maintains that it has already been decided in a previous litigation between the parties that he is not bound to pay on this account more than Rs. 165-15 per annum.

The District Judge found in favour of the defendant, hence this second appeal.

Mr. Hill, on behalf of the plaintiff, contends (1) that the suit in which the question of the defendant's liability to pay road cess, etc. was previously decided was one of a Small Cause Court nature, and that this Court accordingly held that no second appeal lay to it. Hence the Court in which that suit was originally decided was not a Court competent to decide the present one. (2) He points out that the former suit was instituted in the Court of a Munsif, who would have been incompetent to decide the present suit, in which the claim was for an amount in excess of the pecuniary judisdiction of a Munsif, and which was, therefore, instituted in the Court of a Subordinate Judge. Mr. Hill, in support of his first contention, has cited the cases of Bholabhai v. Adesang, Govind v. Bhondbarav, Vithinga Padayachi v. Vithilinga Mudah and Misir Raghobardial v. Skeo Baksh Singh which, it is said, lay down that to make a matter res judicata the two suits must be open to appeal in the same way. Mr. Bonnerjee, on the other hand, has called our attention to the case of Rai Charan Ghose v. Kumud Mohan Dutt(5) which is a decision of this Court and in which the contrary view his been held. We agree with the views expressed in this last-mentioned case and must, therefore, follow it.

As to the objection on the ground of the incompetency of the Munsif, who decided the former suit, to decide a suit of the value of the present suit, it appears that the claim on account of road cess and public works cess was below Rs. 1,000, and was therefore within the competency of a Munsif to try. The plaintiff in this suit joined several causes of action against the same defendant together, and hence instituted her suit in the Subordinate Judge's Court. She therefore joined together several suits. She cannot be allowed to evade the provisions of s. 13 in this way. It would have been perfectly competent for a Munsif to try the plaintiff's present suit for road cess and public works cess. The appeal; therefore, fails. We dismiss it with costs.

M.N.R

Appeal dismissed.