Raghosaran Prasad vs (Lale) Bishundeo Narain

Dhavle, J.—In this case the petitioner himself brought a suit in the Small Cause Court at Darbhanga, or rather on the Small Cause Court side of the Court of the Subordinate Judge of Darbhanga for the recovery of the price of certain articles alleged to have been sold and lent to the defendant. The Judge of the Court below disbelieved the plaintiff''s evidence and dismissed the suit. The petitioner now asks this Court in revision to hold that the suit was not cognizable by the Court of Small Causes at all. Reference is made to Cl. (2), Art. 35 of the Act under which a suit for compensation :

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" is excluded from the cognizance of a Small Cause Court.

The learned advocate for the petitioner contends that his suit was a suit of that character. He has shown me a translation of the plaint and drawn attention in particular to para. 4 of that document. The paragraph speaks of the purchase by the defendant of things worth Rs. 195 in all out of which Rs. 15 was paid then and there, the defendant promising to pay the rest by instalments. It goes on to say that later on the defendant borrowed other things, of which the price is stated, and :

taking advantage of the mother of these plaintiffs being a pardanashin lady, the minority of these plaintiffs and the mis management of the estate, has not till now paid the balance of Rs. 180 nor. has he re-returned the shamiana and darries worth Rs. 145.

I do not see anything in this para graph nor have I been referred to any other portion of the plaint for anything that will make out allegations amounting to an offence under Chap. 17, I.P.C. whether or not Chap. 4, I.P.C. had any application at all. The learned advocate has cited the case of Deoki Rai Vs. Harakh Narain Lal . in support of the proposition that where there are allegations in the plaint making out a ease which is excepted under Art. 35 (ii), it is immaterial what the defence is or what the actual findings arrived at by the lower Court are. That proposition may be conceded but does not really help the petitioner, and I notice that in that case their Lordships came to the conclusion that the plaint :

clearly set out the elements necessary to constitute the offences of theft and mischief.

The learned advocate has contended that the allegations in the present case do amount to the offences of cheating and criminal misappropriation or criminal breach of trust, and in reply to the enquiry where the men''s rea necessary for this offence is to be found, he has submitted that it must be gathered from the circumstances. I see nothing in the circumstances, defendant taking and other things and failing to pay their price, to suggest a criminal intent at all. The learned advocate lays stress on the defendant''s promise to pay the rest of the price by installments and his failure to pay even one installment, but such a failure is clearly more a civil than a criminal matter. It seems to me impossible to hold on the plaint as it stands that any case of an offence under Chap. 17, I.P.C. was even attempted to be made out. There is also a further consideration that arises in the present case. The learned advocate has asked not only that the proceedings below should be declared to have been without jurisdiction, but that the plaint should be returned to him for presentation to the proper Court. In the case of Deoki Rai Vs. Harakh Narain Lal . which he cited there is a reference to Kunwar Pal and Another Vs. Bakhshi Madan Mohan, in which it was observed that it did not lie in the mouth of a party once to deny that an offence had been committed and on another occasion to assert the contrary. In the present case the petitioner himself brought the suit in the Small Cause Court below, and it is he that asks this Court to say that that Court had no jurisdiction. No attempt is made to explain why in that event the petitioner chose to move the Small Cause Court at all. The learned advocate has drawn my attention to a decision of Foster, J., in Jaikali Shah v. Baldeo Prasad, (Civil Revision No. 181 of 1923 as an example of a case where a petitioner himself brought a suit on the Small Cause Court side and had afterwards had the plaint returned to him by a revision in the proper Court. That decision, however, is easily distinguishable from the facts of the present casein that case the petitioner came to this Court for a larger relief than had been awarded to him by the lower Court, and when it was found that the matter was not at all cognizable by the Court of Small Causes, then and not because of a set purpose of the petitioners to obtain a return of the plaint which he had himself presented to the Court of Small'' Causes in order to harass the enemy, was it that the plaint was returned. I do not say that in no circumstances should a plaint be returned for proper presentation even at the instance of a petitioner who filed it in the wrong Court below but I would certainly have declined to do so in the present case, even apart from the fact that the petitioner had failed to satisfy me that the matter was not cognizable by the Court of Small Causes.

The application fails and is dismissed with costs; hearing fee two gold mohurs.