KESAVAN SREEDHARAN Vs. PARVATHI SUMATHI

JUDGEMENT

(1.) THE only question for decision is whether the courts below were right in ordering the plaintiff to file the suit as a small cause suit. THE suit which was for recovery of a sum of Rs. 260 and interest due under a promissory note executed by defendants 1, 3 and 5 and which should normally have been filed as a small cause suit was filed as an original suit by claiming a charge on the properties of the tavazhi of the defendants. THE plaintiff also applied for attachment before judgment of the properties over which charge was claimed and secured an order, exparte. THE fifth defendant filed a petition stating that the suit was triable as a small cause suit and that the plaintiff had claimed a charge in order to avoid filing it as a small cause suit, as he could not get an order of attachment if it was so filed. THE trial court upheld the fifth defendant's objection and directed the plaintiff to file the suit as a small cause suit. On appeal by the plaintiff the order was confirmed; hence this civil revision petition by the plaintiff.

(2.) THE courts below have held, and in my opinion rightly so, that the inclusion of a prayer for a charge on properties was nothing but a ruse to avoid filing the suit as a small cause one. In the circumstances of the case the plaintiff could by no conceivable means have thought that there was a possibility of his getting a charge on tavazhi properties in a suit on a promissory note executed by three members of the tavazhi. THE decision in Hanbans Deo v. Raj Kumar AIR. 1930 All. 702 covers the question. Mukerji, J. observed: "the suit was no doubt one cognizable by the Court of Small Causes, being a suit for money to be recovered on foot of a simple bond. But it is said that there was the prayer for an injunction to be issued against the defendant restraining him from transferring his immovable property and thereby hindering the execution of the decree. As we have already stated, that was a prayer which the plaintiff could never hope to gain. It was as absurd a prayer to be added to a suit for money as could possibly have been conceived. It has been held in numerous cases decided by this and other High Courts that a jurisdiction of a Court of Small Causes (for the matter of that of any other court) could not be ousted by adopting any dodge which is capable of being discovered. THE prayer was not a bona fide one and, if it was added, it could not oust the jurisdiction of the Court of Small causes from taking cognizance of the case. No authority is needed for such a clear proposition of law, yet the following cases may be referred to: see chhotu v. Jawahir (28 All. 293), Narayan Bhaskar v. Balaji Bapuji Khot (21 Bom. 248), Vinayak Gangadhar v. Krishnarao Sakharam (25 Bom. 625), and Harischandra deo v. Narayan (24 Mad. 508 ). We are therefore of opinion that the suit remained a suit for recovery of money on a simple money bond and therefore a suit cognizable by a Court of small Causes in spite of the fictitious prayer added to it. " A Bench of the High Court of Calcutta has also expressed the same view in Maharaja Bahadur Singh v. Felani Mai AIR. 1947 Cal. 407. Mitter, Ag. C. J. , stated; "in our view the provisions of S. 16, Provincial small Cause Courts Act cannot be allowed to be evaded by the plaintiff adding to his plaint a claim based on another cause of action which cannot be entertained by the Court of Small Causes. "

(3.) IT follows that the decisions of the courts below should be affirmed. The Civil Revision Petition is dismissed with costs. Dismissed.