RAM CHANDRA PANDEY Vs. MAHESHWARI SINGH

JUDGEMENT

(1.) This is a defendant's second appeal against the concurrent decisions of the courts below decreeing the plaintiff-respondents' claim for Rs. 200/- as compensation for the removal of a tree belonging to the plaintiffs. It raises an interesting question of law--namely whether the suit for the recovery of damages for a tree alleged to have been dishonestly removed by the defendant from the plaintiffs' land is not excepted from the jurisdiction of the court of small causes under Clause (35) (ii) of the Second Schedule of the Provincial Small Cause Courts Act because the defendant was acquitted by a competent criminal court on the finding that the tree belonged to him. The plaintiffs and the defendant are residents of the same village and their plots of land adjoin. The plaintiffs, alleged that the tree stood on their plot and they felled it but the defendant dishonestly removed it with the intention of stealing it and misappropriated the timber. He alleged that he filed a criminal complaint against the defendant under Section 379, I. P. C. which was dismissed by the Magistrate. He valued the timber at Rs. 200/- and prayed for a decree for this amount The defendant contested the suit and claimed that the tree stood somewhere near the boundary of the two plots and this fact was really responsible for the dispute between the parties. The court Amin reported that the tree stood on the plaintiffs' land and his report was accepted by both the courts below which have decreed the suit. The defendant has now come to this Court in second appeal.

(2.) Sri J.N. Chatterji, learned counsel for the appellant did not challenge the findings of fact recorded by the court below, but he raised a question of jurisdiction. He contended that the plaintiffs' suit, being one for the recovery of an amount less than Rs. 500/-, was cognizable by a court of small causes, and therefore the jurisdiction of any other civil court was barred under Section 10 of the provincial Small Cause Courts Act. Sri Chatteriji conceded that ordinarily a suit for compensation for an act which is an offence punishable under Ch. 17, I. P. C. or would be an offence but for the provisions of Chapter 4 of that) Code, would come within the prohibition of the Second Schedule, Clause (35) (ii) of the Act; but he contended that in the present case a criminal court of competent jurisdiction had acquitted the defendant and held that the tree belonged to aim and therefore it could not possibly be said that the act of the defendant was an offence under the Indian penal Code. Sri Chatterji pointed out that the defendant had been acquitted not on the ground that ha bona fide believed that the tree belonged to him and was thus protected under Ch. 4, I. P. C., but because it had been held that the tree was his own property and no offence had been committed by him. The plaintiffs themselves had admitted in their plaint that the defendants had been acquitted, and after a finding of the criminal court that the defendants' act was not an offence under the Penal Code it was not open to the civil court to speculate whether the plaintiffs' allegations disclosed any offence punishable under that Code. Learned counsel argued that Clause (35) (ii) only excepts from the jurisdiction of the Small Cause Court a suit for compensation for an act which is an offence, and it would be absurd for the civil court to say that the plaint discloses such an offence after a competent criminal court had held that the act of the defendants was no offence.

(3.) The argument raises an interesting point of law which is not exactly covered by any previous decision. At first sight it appears plausible. It is true that the defendant was acquitted by the criminal court on the ground that the tree removed by him was his own and therefore it may be said that that court held that the act of the defendant (for which the plaintiffs claim compensation in the present suit) was not an offence under the I. P. C. even without the protection of Chapter 4 of that Code. The question, however is whether the verdict of the criminal court must operate as res judicata when the civil court has to decide the question of its own jurisdiction to try the suit. In my opinion, it does not.