NILKANTH GANESH RANADIVE Vs. DHONDYA GANU TANDLEKAR

JUDGEMENT

(1.) THIS is an application in revision against an order made by the Subordinate Judge of Mahad dismissing the plaintiff's suit with costs. The learned Judge tried the suit as a small cause suit, and the only point open on this revision application is whether he had jurisdiction to hear the suit as a small cause suit.

(2.) IN the suit the plaintiff claims Rs. 15 as damages incurred by him by reason of the defendant having wrongfully taken fruit from the plaintiff's tree. The pleadings show that there was a dispute as to the ownership of the tree from which this fruit was taken, and the suit is in its nature a civil suit for trespass, and as the damages claimed are only Rs. 15, prima facie it would be triable as a small cause suit. But it is argued that it is not so triable, because it falls within Article 35, Clause (ii), of the second schedule to the Provincial Small Cause Courts Act. That schedule contains exceptions to cases falling within the Act, and the particular item makes ah exception of a suit for compensation for an act which is, or, save for the provisions of Ch. IV of the INdian Penal Code, would be an offence punishable under Ch. XVII of the Code. Chapter IV of the Penal Code deals with exceptions with which we are not concerned in the present case. Chapter XVII deals with offences against property, and it is argued that this act by the defendant of wrongfully taking the fruit of the plaintiff's tree is an offence punishable under Ch. XVII, since it either amounts to theft or criminal trespass. But, in my opinion, this being a civil suit for damages for trespass, it was not necessary to allege in the plaint, nor has it been alleged, that there was any dishonest intention which would be necessary to make the act of the defendant one of theft; nor is it alleged that there was any intention to insult, intimidate or annoy, which would be necessary to constitute criminal trespass. It was not necessary for the purposes of this case to allege any of the ingredients which would constitute a crime.