SANWNLEY MAIN Vs. ZABUNISSA BEGUM AND BANDEGI SAHEB

JUDGEMENT

(1.) The defendant No. 1 is the revision petitioner against whom the claim of the respondent for a sum of Rs. 500 in relation to a chit fund was decreed by the Fourth Judge, City Civil Court. This decree was upheld by the Additional First Judge of City Civil Court. The petitioner, however, preferred a Second Appeal; but as no second appeal was permissible under section 102, Civil Procedure Code, the appeal was admitted as a revision petition.

(2.) The argument advanced by the learned counsel for the petitioner against the decree passed is twofold. He contends that the suit as filed was of a small cause nature and could be heard and decided only by a small cause Court and the Judge of the City Civil Court had therefore no jurisdiction to try the suit in view of the provisions of section 8 of the Hyderabad Small Cause Courts Act. The second argument is that the chit fund being virtually a partnership business and the partnership of the subscribers being not registered no suit could be brought by the plaintiff in view of the provisions of section 69 of the Partnership Act. Admittedly both these objections were raised neither in the Court of the first instance nor in the Court of first appeal. Even in this Court, the only objection raised in the memorandum of appeal was that the case being of a small cause nature, the trial Court had no jurisdiction to pass a decree. The plea of partnership is raised for the first time to-day. It is no doubt well settled that a legal issue based on facts admitted or proved beyond controversy may be raised even in the Court of the last resort; but, neither from the pleadings nor from the evidence adduced, it can be stated that it is admitted by the parties that the chit fund was a partnership firm within the meaning of the term in the Partnership Act (IX of 1932). Even the rules of the chit fund have not been produced in the case. Thus a plea which required proof cannot be permitted to be advanced at this stage. That apart, as held in M.A. Ahmed v. The Deccan Commercial Bank 33 Deccan Law Reporter 476 , chit fund business is not a partnership business requiring registration as contemplated by the Partnership Act.

(3.) The next point that remains for consideration is, whether the decree passed by the Fourth Judge in a case which is of a small cause nature is void in law. As pointed out above, section 8 of the Hyderabad Small Cause Courts Act is specific and precludes Courts other than Small Cause Court from trying cases of a small cause nature. The said section reads as follows:-