Moheshwari Prashad Bhagat vs Mahadeo Roy and Others

Dhavle, J.—This was a suit for the recovery of the price of nine trees said to-have been cut from the land of the plaintiff landlord and misappropriated by defendants 1 to 4 at the instance of defendants 5 to 9. The defence was that the trees stood in the mokarrari land of defendants-5 to 9 and that seven of them had been taken by defendants 1 to 3 with their consent and for a consideration or in accordance with custom. The plaintiff put his claim at Rs. 109. The trial Court dismissed the suit, and this dismissal was upheld in appeal by the Deputy Commissioner, Subordinate Judge of Palamau. The learned-advocate for the plaintiff has filed a second appeal and also an application in civil revision against the order of the lower Appellate Court.

It has been contended on behalf of the defendants-respondents opposite party that a second appeal is barred in this case by Section 102, Civil P.C. That Section bars a, second appeal in a suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the suit does not exceed Rs. 500. The learned advocate has contended that the present was a suit of the nature of a Small'' Cause Court suit, and in support of this contention he has referred, among other cases, to Damodar Jha v. Baldeo Prasad A.I.R (1930) Pat 575. The principle laid down in that case is that where

upon the case laid in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chap. 17, I.P.C., the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is one of wrongful or illegal cutting of trees which is not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred.

The learned advocate for the plaintiff does not contest this proposition of law, but has endeavoured to show that the plaint in the present case did disclose an offence punishable under Ch. 17, I.P.C. I have looked into the plaint and particularly para. 6 of it on which stress was laid for the plaintiff without being able to find all the ingredients of any offence coming within that Chapter. It must therefore be held that the second appeal is incompetent.

Coming now to the civil revision the learned advocate for the plaintiff points out that the trial Court has repeatedly referred to the absence of the khewat of one Janak Misser from the record and in effect blamed the plaintiff for failing to produce it. The plaintiff''s possession and right to recover in this suit depended inter alia on this khewat and the decision in a title suit which was brought by plaintiff''s predecessor against Janak Misser and won in the High Court. The learned advocate points to paras. 6, 7, 13, 15 and 20 of the grounds of appeal to the lower Appellate Court bearing inter alia on the mistake committed by the trial Court, for so it was, as regards the supposed non-production of the khewat of Janak Misser, which was actually on the record (Ex. C), and complains that the lower Appellate Court has nevertheless not referred to the point at all.

It is clear from the judgment of the Deputy Commissioner Subordinate Judge that he fell into confusion and misunderstood the nature of the title suit in those places where he speaks of the zarpeshgidars (and not the mokarraridars), and his remark "that it is not clear how she (the plaintiff''s predecessor-in-title) could eliminate the mokarraridars from the mokarrari possession" shows how he failed to appreciate the essentials of the plaintiff''s case. Janak Misser''s khewat No. 6, no less than the mokarraridars'' khewat No. 4, is found in Ex. C under khewat No. 3 which stands in the name of Mt. Jasoda Koeri, the predecessor-in-title of the plaintiff; and the Deputy Commissioner ought to have considered the bearing on the plaintiff''s title of the mokarraridars'' possession after deciding whether the mokarraridars (and not the zarpeshgidars of Janak) were represented in the title suit or were otherwise bound by the decision in that suit. It has been contended on behalf of the other side that this is not a matter for interference in the exercise of the revisional powers of this Court.

There can, of course, be no interference in revision merely because the decision of the Court below may be or is wrong. But what the lower Appellate Court has done here is to write two or three paragraphs of a decision (besides the introductory paragraphs) five or six months after the hearing of the appeal without any attempt to attend to the complaint of the appellant that the trial Court had failed to notice the khewat which was on the record or even to understand the appellant''s case. Mr. De has contended that Section 99, Civil P.C., prevents interference unless it can be said that the irregularity affects the merits of the case. The Section however applies to appeals. As regards revision, Section 115 entitles this Court to interfere when a lower Appellate Court fails to exercise the jurisdiction vested in it by law or acts in the exercise of its jurisdiction with material irregularity. It was the duty of the lower Appellate Court properly to dispose of the appeal, and this necessarily involved dealing with the points raised by the appellant and looking into the record, so far as may be necessary after making an effort to understand and appreciate the appellant''s case.

The failure of the lower Appellate Court in these respects means either that there was no more than a colourable exercise of jurisdiction by it or that it acted with material irregularity; and in either event this Court has power to interfere. The application in revision is therefore allowed, the decree of the lower Appellate Court set aside, and the lower Appellate Court directed to re-hear the appeal in accordance with the law. The costs of this hearing, including a hearing fee of two gold mohurs, will abide the event.