Kisangopal Ganeriwala vs Ram Lal

Macpherson, J.—These are two applications u/s 25, Provincial Small Cause Courts Act, and Section 115, Civil P.C.

The plaintiff who is the petitioner averred in each case as follows: The defendant took from him a lease of a house belonging to him on a monthly rent of Rs. 15 agreeing to vacate on 1st Srawan 1335 B.S. (that is, practically for a year) and in default to pay Rs. 30 per month as damages. Defendant failed to give up possession and plaintiff served on him a notice to quit. The suit was to recover damages for eight months at the rate of Rs. 30 id being further stated that the rent (Rs. 180) for the year covered by the lease had been paid in advance and that the plaintiff reserved the right to bring a suit for ejectment at some future date.

The defence so far as material was that the kabuliyat represented a benami transaction defendant and his brothers being the servants of the plaintiff and accustomed to execute such benami documents in his favour that the plaintiff had no right at all to the house and that in any event the suit should not be tried as a small cause.

The Judge held that the suit ought not to be tried as a small cause and directed the plaint to be returned to be presented to the Court having jurisdiction to determine the title.

Mr. C.C. Das in support of the rules practically adopts the argument which found favour in the decision of a single Judge of the Allahabad High Court in Muhammad Ilyas v. Hari Ram AIR 1926 All He also cited the decision in Umesh v. Rakhal 15 C.W.N. 666 and that of a Judge of this Court in Razaur Rahman v. Athar Husain AIR 1922 Pat 368 and contended that Section 23, Provincial Small Cause Courts Act, was not applicable and in any case the Judge in applying that enactment had not exercised a regulated judicial discretion since the suit being a simple one for house rent the plaintiff ought not to be referred to the regular Court.

On behalf of the opposite party the decision of a Division Bench of this Court in Ganga Prasad v. Nandu Ram [1917] 1 Pat. 465 is relied upon. It was there held that when a plaint is returned u/s 23(1) of the Act this Court will not interfere under any of its powers unless the Small Cause Court has in the first instance exercised its discretion ignorantly or perversely or unless the Court has exceeded its jurisdiction or has ignorantly or perversely refused to exorcise or has made only a colourable pretence at exorcising a jurisdiction vested in it by law and has thereby caused injury to the parties which would be irreparable if not set right.

It will be observed that in respect of the decision in Umesh v. Rakhal 15 C.W.N. 666 which was cited there the learned Judges observed that the Divisional Bench of the Calcutta High Court declined to believe that there could be any intricate question of title in a dispute over the carcass of a goat.

The decision of a single Judge of this Court does not help the petitioner since the only question in that case which related to damages for wrongful destruction of the ancestral dwelling house, was whether the Munsif or the Judge of the Small Cause Court who had both declined jurisdiction should hear the suit. The decision in (Hakim) Mohammad Ilyas Vs. Hari Ram and Others, besides being that of a single Judge and relating to a much less intricate dispute as to title must give way to the decision already cited of the Divisional Bench of this Court.

It is manifest that a question of title is here involved and that the plaintiff has postponed bringing a suit in respect of the title for ulterior reasons and that he was not ready to proceed with his small ''cause seven months after it was instituted. In my view the Judge would, as was said in Ganga Prasad v Nanhu Ram [1917] 1 Pat. 465, "have been most unwise to adjudicate upon it summarily." So far from being irreparable or any injury being likely to befall anyone the plaintiff will have an opportunity of having his claim to ejectment adjudicated upon in combination with his present claim to damages. The application being without merit the rules are discharged with costs. Pleader''s fee one gold mohur in each case.