Deodutt Missr vs Benod Behari and others

Rowland, J.—This second appeal is presented by the plaintiff who was successful in the Court of first instance but whose suit was dismissed on appeal by the District Judge.

A preliminary objection had been taken to the heaving of this appeal on the ground that no second appeal lies, the suit being a suit of the nature of a Small Cause Court suit and valued at below Rs. 500; hence the appeal is barred by S. 102, Civil P.C. Before dealing with this Contention I will set out the main facts. The relief claimed in the suit is the setting aside of an ex parte decree obtained against the plaintiff for a sum of Rs. 75, as damages for alleged removal in 1334 of a Mahua tree. For the respondents reference has been made to Badiur Baharnan and Others Vs. Mokram Ali and Others, in which it was held Chat an appeal from an order dismissing an application under O. 9, R. 13, Civil P.C., would be barred if the suit leading to the application was not appeasable. That case however is not an authority bearing on the one before us, for we are not dealing with an application under O. 9, R. 13, but a suit alleging fraud and claiming to set aside the decree of a Court. That suit is of the nature of a title suit. It is not in any case cognizable by a Court of Small Causes, and therefore whatever its value a second appeal will lie.

Coining to the merits of the main appeal, it is pointed out that in the Munsif''s Court the plaintiff was successful, the Munsif holding that there had been no proper service of summons, that the alleged cutting of a tree fey the present plaintiff was false and that the ex parte decree had been obtained by fraud. The District Judge on appeal held that there had been no fraud practiced, that the process had been properly served and in addition a post-card had been sent to the plaintiff by registered post, and that the case of the plaintiff that no Mahua tree such as was referred to in the money suit had ever existed was inconsistent with the entry in the Record of Rights noting that such a tree was standing on plot 280 and therefore was untrue. All these findings of the appellate Court, it seems to me, are findings of fact which 1 am not entitled to go behind in second appeal.

It has been contended that the finding, regarding the service of process was arrived at by some reasoning as to genuineness of handwriting and it was suggested that the appellate Court''s procedure was wrong in not invoking the services of an expert in handwriting before forming an, opinion in a matter of this nature. The contention cannot be accepted. Whether an expert is examined or not generally depends on whether the parties apply to have one examined, and in this case there was no such application.

In short I find no point of law on which the decision of the District Judge can be assailed. The result is that the appeal must be dismissed with costs to the respondents who have appeared, Leave to appeal under the Betters Patent is refused.