K THANKAPPAN PILLAI Vs. KALIANI AMMA AMUKUTTY AMMA

JUDGEMENT

(1.) This Revision Petition is filed by the defendant in a small cause suit. The suit was for recovery of arrears of rent of a shop building and for compensation for the loss caused by the destruction of a wall of the building, by the dismantling and removal of an almyrah built into the wall and by the removal of electric bulbs etc. The defendant raised a preliminary objection that the suit as framed cannot be taken cognizance of by the Small Cause Court since the claims were excepted from the cognizance of a Court of Small Causes by the schedule items 9 and 36(j) of the Kerala Small Cause Courts Act, (Act 8 of 1957). That objection was repelled by the learned Subordinate Judge and the trial of the suit was ordered to be proceeded with.

(2.) The Revision Petition has only to be allowed. S.12 of the Kerala Small Cause Courts Act enjoins that A Court of Small Causes shall not take cognizance of the suits specified in the Schedule as suits excepted from the cognizance of a Court of Small Causes. Item (9) in the schedule is a suit for the recovery of rent, other than house-rent unless the Judge of the Court of Small Causes has teen expressly invested by the Government with authority to exercise jurisdiction with respect thereto. The character of the building and the purpose to which it is adapted or can be adapted is the test to be applied to determine whether a building is a house. In this case it is common cause that the building is a shop building and is used as a tea shop. It is also not disputed that the Munsiff has not been expressly invested with authority to exercise jurisdiction with respect to shop buildings.

(3.) Item (36), Clause (j) of the Schedule excepts from the cognizance of a Small Cause Court a suit for compensation for an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code would be an offence punishable under Chapter XVII of the said Code. There is a definite allegation in para 6 of the plaint that with a view to wreak vengeance for the institution of rent control proceedings and a suit for injunction restraining waste, in respect of the shop building against the defendant, the defendant destroyed the northern wall of the building with the intention of causing wrongful loss to the plaintiff and thereby caused a loss of Rs. 100/-. This allegation makes out the ingredients of the offence of mischief which is an offence punishable under Chapter XVII of the Penal Code. It was argued by the learned counsel for the respondent that since the commission of the offence was denied by the defendant this case is taken out of the purview of item (36) (j). It is well settled that the jurisdiction of a Court with reference to the subject matter of the litigation depends upon the nature of the claim brought before it. If the allegations in the plaint make out a case which has been excepted under the Act it is immaterial what the defence raised is or what the actual findings arrived at by the Court are.