P L D 1960 Dacca 907 (PLP)

8. As against this, the learned Advocate appearing to oppose this Rule on behalf of the plaintiff has taken firstly a preliminary objection as to the maintainability of this application. It is contended on his behalf that since this was a suit for the recovery of damages on the basis of a wrongful taking, the act of taking alleged was of such a nature that it would have also amounted to an offence punishable under Chapter XVII of the Penal Code. The suit was, therefore, not cognizable by a Court of Small Causes by reason of the provisions of section 15 (1) of the said Act, read with item (if) of Article 35, Schedule II thereto. Subsection (1) of section 15 of the Provincial Small Causes Courts Act reads as follows: "A Court of Small Causes shall not take cognizance of the suit specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes." Article 35 of Schedule II, item (ii), read as follows: "A suit for compensation . . . . . . . . . . (ii) 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." My attention is also drawn to the averments in the plaint and it is pointed out that these averments alleged that the cutting and taking away of the paddy also amounted to an offence of mischief, if not exactly of theft, and hence, this was a suit which come directly within the provisions above quoted and could not be taken cognizance of at all by a Court of Small Causes. Since there was an appeal in the Court below, there should have been a second appeal in this Court and not merely an application in revision.

9. As against this, the learned Advocate appearing in support of this Rule relies on section 102 of the Code of Civil Procedure which provides that no second appeal shall lie in any suit of the nature cognizable by a Court of Small Causes when the amount or value of the subject‑matter of the original suit does not exceed Rs. 500, and it is urged that in this section the words "of the nature cognizable by Courts of Small Causes" are of a wider connotation and are not limited to suits directly cogniz able by the Court of Small Causes which under section 16 of the Provincial Small Cause Courts Act could not have been tried by any other Court having jurisdiction within that area, for, obviously in suits which are directly cognizable by a Court of the Small Causes ,section 27A' of the Provincial Small Cause Courts Act provides that a decree or order made by a Court of Small Causes shall be final and thus, apart from" the power given to the High Court under section 25 of the 'said Act to call for the records and to satisfy itself that a case decided by a Small Causes Court has been decided according to law, no appeal lies from a decree or order of a Small. Causes Court.

10. Now, according to the learned Advocate appearing in support of this Rule, if the suit does not come within the scope of Article 35 (ii) of Schedule, II of the said Act, then the suit is a suit cognizable by the Court of Small Causes and certainly a suit of the nature cognizable by the Court of Small Causes. So, in any event, a second appeal does not lie 'to this Court, as contended by the learned Advocate appearing to oppose this Rule. According to him, the suit does not come within the exception to clause (ii) of Article 35 of Schedule II of the Act but is a suit which was a Small Cause Court suit and should have been tried as a Small Cause Court suit and, as such, even the appeal in the Court below was incompetent and should be declared to have been decided without jurisdiction.

11. This necessitates a determination of the question as to whether the suit is a suit which comes within the exception provided by item (ii) of Article 35 of Schedule II of the Act.

12. The learned Advocate appearing to oppose the rule has in support of his contention relied on two decisions of the Indian High Courts and one decision of the Lahore High Court in the cases of Lalu Sardar and others v. Ohedali Mirdha (A I R 1919 Cal. 1035), Khuda Box and others v. Raghunandan Lal and others (A I R 1927 All. 381) and Kashi Ram v. Des Raj (A I R 1936 Lah. 798).

13. In the Calcutta case, the allegations in the plaint were that the defendant had forcibly, wrongfully and maliciously cut and taken away paddy grown by the plaintiff.

14. In the Allahabad case, the allegation was that the defendant had wrongfully cut and misappropriated from a plot situated in the plaintiff's zamindary the wood of a peepul tree. In this case the principle that was followed was that if the allegations in the plaint amounted to an assertion that the defend ants had committed an act which if proved against them in a Criminal Court would have rendered them liable to conviction on a charge of an offence under Chapter XVII of the Penal Code, then it would be a case which would fall within the ambit of this exception.

15. In the Lahore case again, the allegation was that the money had been stolen by the plaintiff's wife and made over to her paramour, the defendant in the suit who, in his turn, made it, over to his partner from whom the police in the course of an investigation in connection with a murder, seized the money. It‑ appears that on this charge of murder the defendant was actually tried and convicted in the Court of Session but was acquitted on appeal for the offence of murder and the Sessions Judge had directed the police to refund the money to the defendant on his furnishing security. On those facts it was held that the suit was really one for the recovery in respect of which an offence under section 379 of the Penal Code had been committed.

16. As against these, reliance has been placed on a large number of decisions in the cases of Kader Sheikh v. Najumaddi Sheikh (44 C L R 190), Damodar Jha v. Baldeo Prasad (A I R 1930 Pat. 575), Deokali v. Abhram Bali and others (A I R 1931 Oudh 49), Nilkanth Ganesh Ranadive v. Dhondya Ganu Tandlekar (A I R 1942 Bom. 316) and Bachittar Singh and others v. Rahim Bakhsh and others (A I R 1938 Lah. 759).

17. From a review of these decisions, it appears that the principle adopted in such cases is that in order to bring a suit within this ambit and to determine whether an act, sued upon, constitutes a crime or not the nature of the allegations in the plaint are only relevant and the allegations must be such that if those allegations are established, an offence under that Chapter of the penal Code would be made out. Thus, where, upon the facts as stated in the plaint, the case against the defendant is of an act merely wrongful or illegal but not necessarily penal so as to bring it within the provisions of the Penal Code, the juris diction of the Small Causes Court is not at all excluded.

18. Applying this principle to the allegations in the plaint in the present case, I find that there is no averment alleging a dishonest taking and that the present was not a case of merely mischief or of causing wrongful loss or damage to the plaintiff. In these circumstances, I am of the view that the suit does not come within the ambit of exception (ii) of Article 35 of Schedule II of the Act and that it was a suit which could have been tried in the Small Causes Court file of the learned Munsif.

19. Now, so far as the provisions of section 102 of the Code of Civil Procedure are concerned, I am also inclined to agree with the learned Advocate appearing in support of the Rue that it is of a wider scope and applies to all suits of a civil nature of which the value does not exceed Rs. 500 except those which are mentioned in Schedule II of the Provincial Small Cause Courts Act. The test, it is said, in deciding whether a second appeal lies or not, is to be found in the nature of the suit and not in the powers of the Court. Hence, whether the Court could or could not take cognizance of the case was not so material but the question was as to what was the nature of the suit.

20. The result, therefore, is that the preliminary objection is rejected.

21. I now take up for consideration the first point urged in support of the Rule, namely, as to the competency of the appeal in the Court below. Having held that the suit did not come within the exception to Article 35, Schedule II of the Provincial Small Cause Courts Act, I am bound to hold that the suit was one which was cognizable in a Court of Small Causes. The original hearing of the suit, however, is not invalidated by reason of this finding, for, it has been held in this Court in the case of Shamsuddin Pradhan v. Jasoda Kanta Sen and others ((1954) 6 D L R 277) that the failure to try it in the Small Cause Court file is an irregularity but not of such a nature as to cause a failure of justice. Although the trial is not invalidated, the character of the suit is not thereby altered and the decree is not appealable. This view finds support also from two decisions of the Calcutta High Court in the cases of Indra Chandra Mukherjee v. Srish Chandra Banerjee (I L R 40 Cal. 537) and Satyendra Nath Bisi and another v. Narendra Nath Sarkar (43 C W N 947). I, therefore, uphold also the contention of the learned Advocate that the appeal in the Court below was incompetent and the learned Subordinate Judge had no power to hear this appeal. The remedy open to the applicant was to move this Court under section 25 of the Provincial Small Cause Courts Act.

22. The question now is what is to be done at this stage. It is apparent that in a suit tried in the Small Cause Court file or in a suit of the nature of a Small Cause Court suit, the power of revision is given only to this Court and not to any subordinate Court. Therefore, the learned Subordinate Judge could no have heard this appeal nor could he treat it as a revision before him. The judgment and decree passed by the learned Subor dinate Judge must, therefore, be set aside as being without jurisdiction and this Rule made absolute.

23. This will not, in my opinion, however, preclude the appellant in the Court below from invoking the provisions of section 14 of the Limitation Act, if necessary, for moving this Court again under section 25 of the Provincial Small Cause Courts Act against the order of the Munsif who tried the suit.

24. I accordingly make this Rule absolute but, having regard to the special circumstances of this case, I make no order as to costs. R. B. A. Rule made absolute.