Sham Chand and Others vs Bahadur Upadhia

John Edge, Kt., C.J. and Blennerhassett, J.—This was a suit by the zamindar to recover his haq-i-chaharum, which was payable by the custom of the place to the zamindar on a sale. The suit was brought more than three years after the sale and within six years from the sale. The question is whether Article 62 or Article 120 of the second schedule of Act No. XV of 1877 applies. The Courts below applied Article 62. The first Court dismissed the suit on the ground of limitation: the Lower Appellate Court dismissed the appeal on the same ground.

The Courts below relied upon the decision of this Court in Raghunath Prasad v. Girdhari Das Weekly Notes, 1893, page 65. A Division Bench there decided that Article 62 applied to the suit. On behalf of the plaintiffs appellants it was contended that Article 62 did not apply. Article 62 is as follows: "For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff''s use." The Full Bench of this Court in Nanku v. The Board of Revenue for the N.W.P. ILR All. 444, decided that a suit for haq-i-chaharum was not a suit which could be brought'' in a Court of Small Causes. The claim in that case was for Rs. 115 annas 8 as haq-i-chaharum. Section 6 of Act No. XI of 1865 enacted the law at that time in force as to cases cognizable by Courts of Small Causes, and it is quite clear that u/s 6 of that Act, if a suit for haq-i-chaharum was a suit for money had and received by the defendant to the plaintiff''s use, it was, subject to the amount being within the jurisdiction of the Court, a suit cognizable by Court of Small Causes.

The result appears to us to be, applying the Full Bench decision, that a suit for haq-i-chaharum is not a suit for money payable to the plaintiff for money had and received to the plaintiff''s use. The same view of the application of the Full Bench decision was taken in Kirath Chand v. Ganesh Prasad ILR All. 358.

Following the Full Bench judgment, which we think was right, we allow this appeal with costs here and in the Courts below, and, setting aside the decrees of the Courts below, we remand this case to the first Court u/s 562 of the CPC to be disposed of on the merits.