JAWAHARLAL Vs. DHURIA

JUDGEMENT

(1.) This is plaintiff's appeal. He filed a suit claiming damages against the defendants. It was pleaded that cattle belonging to the defendants had caused damage to mustard crop of the plaintiff. Trial Court granted damages to the extent of Rs.250/-. Nine of the defendants preferred an appeal against the decree passed by the trial Court. Name of Jamuna Prasad, defendant No. 10 did not figure in the memo of parties. This appeal was allowed by the first appellate Court. The plaintiff feeling aggrieved by the judgment and decree of the first appellate Court has preferred the present appeal.

(2.) A preliminary objection has been raised by the counsel for the defendant that this appeal is not competent in view of the bar created by Section 102 of the Code of Civil Procedure, 1908. His contention is that the matter in this appeal is such as would fall within the purview of Small Cause Court, the claim being less than Rs. 3,000/-. Accordingly, I have treated this appeal as revision. Such a course is permissible. See R. W.S.S. of India v. Union of India, AIR 1971 SC 2083 where the Supreme Court approved the exercise of jurisdiction under Section 115 by converting the appeal into revision.

(3.) Two contentions with regard to the maintainability of the appeal before the first appellate Court have been raised. According to the counsel for the plaintiff, an appeal could be preferred only on questions of law and the appeal was not competent in view of the bar created by Section 96(4) of the Code of Civil Procedure, 1908. He has also stated that as the name of defendant No. 10 did not figure in the memo of appeal, the appeal as framed was incompetent.