Achambhit Jha vs Bankey Behari Lal and Others

Wort, J.—In support of this rule Mr. B.C. De contends that the plaint disclosed a criminal offence against his client and consequently under Article 35, Small Cause Courts Act, the jurisdiction of the Small Cause Judge was ousted. The relevant portion of Article 35 provides:

For an act which is, or, save for the provisions of Chap. 4, I.P.C., would be an. offence punishable under Chap. 17 "of the said Code,

By a reference to Chap. 4, I.P.C. it will be seen that that chapter in the first part deals with the immunity of certain classes of persons from liability in criminal matters, the latter part of the chapter dealt with what might brieflly be described as the right of private defence; and it will be seen therefore that no assistance can be got from reference to this particular chapter of the Penal Code in connexion with this matter. Mr. De had argued that he was entitled to succeed in this application if it were shown that the plaint disclosed a criminal offence disregarding any defence which he might have set up in a criminal prosecution. That was the reason for reference to Chap. 4, I.P.C. But agreeing with the argument which had been advanced, namely, the matter is to be determined by a reference to the plaint, it remains to be seen whether the plaint in this case does disclose a criminal offence. The cause of action was, to use the English juridical expression, an action in conversion or detenue, the plaintiff claiming. Rs. 109 to be the value of the timber cut by the defendant-tenant. The plaint mentioned the appropriation by tlie defendant and also went on to allege that the right of cutting the timber still remained in the plaintiff. Can it be said that the plaint necessarily implied a criminal offence? It might have been otherwise had the plaint alleged a misappropriation dishonestly to bring it within the definition of "theft" under Sections 378 and 379, I.P.C. But in my judgment it cannot be said that there was an anpropriate allegation to disclose a criminal offence.

The next argument is based on the provisions of Articles 4 and 11, Small Cause Courts Act, Article 4 excludes from the jurisdiction of the Small Cause Court Judge a suit for the possession of immovable property and Article 11 excludes from the jurisdiction of Small Cause Court a suit for the determination of or enforcement of any other right to, or interest in, immovable property.

It is argued that this action is nothing more than an action for enforcement of right in immovable property. It is true that the right to cut timber did relate to and was in effect a right in immovable property or, more accurately stated, raised the question of a right in immovable property, yet I agree with the argument advanced by the learned advocate on behalf of the respondent that the question in order to exclude the jurisdiction of the Court must be a direct question for determination and not merely incidental for the purpose of deciding whether the plaintiff is entitled to relief or not. It may be a hardship on the part of the defendant that he is excluded from a right of appeal, but it seems to me that neither on the first point (sic)oor on the second point can it be stated that the Small Cause Judge had no jurisdiction to try this suit. The rule is therefore discharged with costs; hearing fee two gold mohurs.