Moulvi Syed Razaur Rahman vs Athar Hussain and Others

Ross, J.—This is an application for revision of an order passed by the Munsif of the Third Court of Gaya on the 14th April 1921. The plaintiff, who is the applicant, brought a suit far damages for wrongful destruction of his ancestral dwelling-house and removal of the materials thereof, in the Court of the Third Munsif of Gaya, on the 21st January 1921. The Munsif was of opinion that the suit was a suit cognizable by a Court of Small Causes and returned the plaint for presentation to that Court. The plaint was duly presented in the Court of Small Causes but the Judge of that Court, considering that the suit involved a question of title, directed that the plaint be returned to be filed in the proper Court. The plaint was refiled before the Third Munsif, who adhered to his previous order.

In my opinion, the order passed originally by the Munsif not haying been set aside, the same Court, when the plaint was refiled before it, had no alternative but to pass the order which, it has dona, It is contended that as the present application is directed only against that order, the plaintiff cannot have any remedy. I am unwilling to adopt that view, because if it is adopted, the plaintiff is without any remedy at all because the Munsif''s Court is closed to him. and the Small Cause Court Judge has refused to entertain his suit, and no application has been made against that order either. But as both the orders are before me, and the whole case, I think that 1 am entitled to make such an order as will enable the plaintiff to have his action tried.

In my opinion, the question of title arises only incidentally, if at all. The action is an action for damages and the suit is one cognizable by a Court of Small Causes. I, therefore, set aside the order of the Subordinate Judge returning the plaint and direct that the suit be tried as a small cause by the Court of Small Causes in Gaya. The time which has been taken in moving different Courts in bona fide prosecution of this suit will be excluded in computing the period of limitation.

There will be no costs of this application.

Let the plaint be sent to the Court of Small Causes, Gaya, in order to be registered and the suit tried there.