GURUNATHAPPA DEEKAPPA Vs. DHARWAR MUNICIPALITY

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff for recovery of Rs. 380-7-0 which, according to him, was levied by the Municipal Borough of Dharwar by a distress warrant illegally. The plaintiff also claimed interest on this amount of Rs. 380-7-0. The trial Court decreed the claim of the plaintiff to the extent of Rs. 178-12-0. The plaintiff appealed to the District Court, and that Court confirmed the decree of the trial Court. From that decree the appellant has tome to this Court in second appeal.

(2.) A preliminary point has been raised on behalf of the respondent that no second appeal lies inasmuch as the subject-matter of this suit does not exceed Rs. 500 and it is a suit of a nature cognisable by the Court of Small Causes. Now looking at the frame of the suit, it is clear to my mind that what the plaintiff asks in this suit is for a refund of the; amount recovered by the Municipality illegally from him, and his suit clearly falls under Section 72 of the Indian Contract Act, 1872, for return of the money paid under coercion. If the plaintiff's suit had been confined merely to the refund of this amount, no difficulty would have arisen because the suits that are excluded from the jurisdiction of the Small Causes Court are enumerated in the Second Schedule to the Provincial Small Cause Courts Act, and the only relevant article is Article 35(j) which provides that a suit for compensation for illegal, improper or excessive distress, attachment or search, or for trespass committed in, or damage caused by, the illegal or improper execution of any distress, search or legal process is a suit which. is excepted from the cognizance of a Court of Small Causes. Now to the extent that the plaintiff's suit is for the refund of the amount paid by him under illegal distress, it is clearly not a suit for compensation for illegal distress or for damages caused by illegal distress, and, as I said, if the plaintiff's suit had been confined to that claim, there would have been no difficulty in deciding that that was not a suit which was excluded from the cognizance of the Small Causes Court. But the difficulty arises from the fact that in addition to the claim for refund of the distress amount the plaintiff has also asked for interest on the amount. In the trial Court an issue was raised to the effect whether the plaintiff was entitled to claim interest by way of damages; if so, at what rate? And the issue was answered by the trial Court that the plaintiff was entitled to claim six per cent. interest per annum on Rs. 178-12-0 by way of damages.

(3.) AS regards the costs of the appeal, as there were two conflicting decisions of our Court and as the matter is not free from difficulty, I think the fairest order to make with regard to the costs of this appeal would be that the costs of this appeal will be costs in the trial Court and will abide the result of the trial. Lokur, J.