P L D 1956 Peshawar 43 (PLP)

MUHAMMAD SHAFI, J. C.‑Sayed Mahbub Peshawar City brought a suit on 1st July 1946, Mst. Fatima Bibi, his sister, Sayed Asghar Shah; Sayed Ahmad Shah and Sayed Maqbool Shah, his brothers for possession of 1/4th share in two rooms bearing Nos. 2858 and 2859, as well as for possession by pre‑emption of the remaining 3/4th share on payment of Rs.

300. The suit was contested but finally Shah Abdur Rashid Sub‑Judge 4th Class Peshawar, by his order dated 31st January 1950, granted plaintiff a decree for the possession of 2/9th share only, and dismissed his claim to the remaining claim. On 30th January 1953, Sayed Mahbub Shah instituted another suit against his sister Mst. Fatima Bibi, and one Khairullah for the recovery of Rs. 90, alleging that these two rooms had been given on rent by Mst. Fatima Bibi to defen dant No. 2, and she had been recovering from him a sum of Rs. 10 p. m. and that out of this amount according to the judgment referred to above he had been held entitled to 2/9th share, which came to Rs. 90 for three years viz. from 31st January 1950 to 31st January 1953, and that he should be granted a decree for the same. The suit was instituted in a Small Cause Court and a decree by the said Court was granted in his favour for Rs. 44 with proportionate costs. Mst. Fatima Bibi has come up in revision to this Court and the principal objection taken is that the learned trial judge had no jurisdiction to try the case, because the suit was excepted from the cognizance of that Court by Article 31, Schedule 2 of the Provincial Small Cause Courts Act IX of 1887. This Article excludes from the cognizance of the Small Cause Court a suit for an account . . . . . . including a suit for the profits of the immovable property belonging to the plaintiff, which had been wrongfully received by the defendant. There is a sharp difference of opinion between the High Courts over the question whether a suit by one of several joint landlords for recovery of certain sums which are alleged to have been collected by his co‑sharers from the tenants in excess of their legitimate share, falls under this Article or not. Some of the High Courts are of the opinion, that in case of such a suit the jurisdiction of the Small Cause Court is excluded only where it is for an account and not for a specific sum of money. Where, however, the suit is not for an account and there is no prayer in the plaint that any of the defendants should be made accountable to the plaintiff, the suit does not fall under this Article at all. On the other hand the other High Courts are of the view that this Article is not intended to apply only to a suit for an account, but it also applies to the suits which are not strictly speaking suits for accounts but which are analogous to suits for an account, and which should therefore be treated in the same way as a suit for an account so far as the cognizability by a Small Cause Court is concerned. Accordingly to them, then, a suit for mesne profits is in reality a suit for an account, because the plaintiff is impliedly asking the defendant to account for all rents and profits, which he has received. Such suits therefore are the suits, which are excluded by Article

31. I feel inclined to subscribe to the latter view. A suit for a specific sum of money as mesne profits technically speaking is a suit for an account, because in such suits the account might have to be examined; for example the Court might have to go into the question whether the defendant had spent any money in the recovery of the amount, or had spent any money on the repairs of the property etc. It might also be necessary for the Court to go into the question as to what actual amount the defendant had received in the case. From whatever point of view thus the case is looked at, a suit, which is on the face of it a suit for the recovery of a fixed amount is in reality a suit for an account, and, therefore, it is excluded from the jurisdiction of the Small Cause Court under Article

31. In the present case the plaintiff instituted a suit for the recovery of Rs. 90 on the allegation that the rent of the rooms, which the defendant had received was Rs. 10 p. m. The Court, however, went into the accounts and came to A the conclusion that the rent received by the defendant was not Rs. 10 but Rs. 5‑8‑0 p. m. This is clearly a suit for an account, which is excluded from the jurisdiction of the Small Cause Court. I consequently accept this revision petition, set aside the judgment and decree of the learned trial Court, and dismiss the plaintiff's suit on the ground that the trial Court had no jurisdiction to try it. The defendant shall have her costs throughout. Pleader's fee Rs.

5. A. H. Petition accepted.