RAJENDRALAL DUTT Vs. KSHETRAMANI DASSI

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit for recovery of house rent. Both the Courts below have decided the suit against the present appellant.

(2.) A preliminary objection was raised by the plaintiff-respondent regarding the maintainability of the appeal. It appears that the appeal has already been dismissed by this Court as against pro forma defendant No. 5. It is contended, therefore, on behalf of the plaintiffs-respondents that the whole appeal has become incompetent. This objection cannot, however, be sustained. It appears from page -2 of the Paper Book that by an amendment petition the plaintiff stated that she had purchased by a registered Kobala 1/7th share belonging to pro forma defendant No. 5. Reference may also be made to pages 17, 18 and 19 of the Paper Book. In the circumstances disclosed above, no relief was sought against pro forma defendant No. 5 and the dismissal of the appeal against him cannot jeopardise the maintainability of the appeal against the remaining respondents. The-present objection is overruled accordingly.

(3.) On behalf of the appellant only one point was pressed before me. It is contended that the trial Court viz., the 2nd Court of the Munsiff at Alipore was not competent to try the suit and as such the decree must be set aside. This objection was raised by the defendant in the trial Court itself but decided against him by the learned Munsiff. Originally this suit was filed as Small Causes Court Suit No. 1111 of 1939 in the Court of Small Causes at Sealdah. On the objection of the defendant the Small Cause Court Judge returned the plaint under Section 23 of the Provincial Small Cause Courts Act for presentation to the proper Court and then it was filed in the 3rd Court of Munsif at Alipur within whose jurisdiction the disputed property lies and here again the objection of the defendant regarding the competency of the Court having been dismissed, an appeal was preferred by him to the District Judge who dismissed the suit holding that it is not maintainable unless the entire rent due is claimed in the suit. There was an appeal to this Court and this Court sent back the case to the trial Court to be decided afresh according to law after giving the plaintiff an opportunity to amend the plaint. There was also a decision to the effect that the suit should be decided on the evidence already taken and such additional evidence, if any, as the parties might choose to adduce. The plaint has been amended accordingly & claim has now been laid at Rs. 1200/- and odd. By such amendment, however, the claim exceeded the pecuniary jurisdiction of the trial Court (3rd Court) and thereupon on the prayer of the District Judge the suit was transferred to the 2nd Court having pecuniary jurisdiction and this appeal is directed against the trial of the suit by the 2nd Court. The attempt of the defendant to get the District Judge to vacate the order of transfer was unsuccessful.