ANIL KUMAR ROY Vs. MANSANATH SHAW

JUDGEMENT

(1.) This Rule was obtained against order No. 113 dated January 10, 1974 in Money Suit No. 209 of 1963. It appears that the plaintiff instituted the suit on December 12, 1963 claiming (a) a sum of Rupees 4981.09 for removing silted earth; (b) an amount of compensation for Rs. 500/- as defendant's employee and (c) a salary for two months from June 6, 1962 to August 6, 1962 at the rate of Rs. 120/- for Rs. 240/-. In all the claim thus was laid at Rs. 4572.34 giving a credit of Rs. 1142 towards payment of claims (a) and (b) above. It appears that the trial of the suit commenced as early as February 4, 1967 and thereafter on the defendant's application in course of hearing two new issues were framed on February 12, 1973. Issues Nos. 6 and 7 so framed are as follows; "(6) Is the plaintiff's claim regarding Rs. 500/-and Rs. 120/-(?) mentioned in paragraphs 3 and 5 of the plaint are cognizable by this Court (7) Is the plaint liable to be returned." This order framing additional issues was not challenged by the plaintiff and the issues were taken up for hearing on January 10, 1974 and by the impugned order the learned Munsif held that the two claims mentioned in issue No. 6 are also cognizable by him. The defendant petitioner, as already stated, has obtained this Rule again against this order.

(2.) Mr. Radhakanta Bhattacharya appearing for the defendant petitioner submitted that the claims noted in issue No. 6 are not excepted from cognizance of the Small Causes Court under provisions of Section 15 of the Provincial Small Cause Courts Act, 1887. Accordingly this claim can only be tried in a Small Cause Court and not by the Court of the learned Munsif which court has been trying this suit also on these claims. We referred to the decision in Karam Singh v. Kunwar Sen, reported in ILR (1942) All 862 at p. 865 = (AIR 1942 All 387 at p. 389) where it was held that different causes of action can be joined in any suit but subject to the condition that the Court has jurisdiction in respect of all the causes of action involved. In Maharaja Bahadur Singh v. Felani Mai, reported in AIR 1947 Cal 407 in was observed by a Division Bench of this Court that "The provisions of Section 16 cannot be allowed to be evaded by the plaintiff adding to his plaint a claim based on another cause of action which cannot be entertained by the Court of Small Cause." It may be mentioned here that Section 16 of the Act provides that except as expressly provided in law a suit cognizable by a Court of Small Causes shall not be tried by any other court having jurisdiction within the local limits of the Jurisdiction of the Court of Small Causes by which the suit is triable. Mr. Bhattacharya accordingly contended that, in view of the position that the two claims of issue No. 6 were not excepted by the Second Schedule, such claim could only be tried by a court of Small Causes.

(3.) Mr. Arun Kishore Das Gupta, Advocate, appearing for the plaintiff opposite party has submitted that the suit was filed as early as in 1963 and came up for peremptory hearing after protracted adjournments caused by the defendant. At no point of time the objection as to jurisdiction was taken. Even in the written statement there was no whisper about it and accordingly the defendant should not be permitted to take this objection at this stage. In support he relied on a decision in Ranjit Kumar Pal Choudhury v. Murari Mohan Pal Choudhury, in which it was held that omission of the defendants to raise the plea of multifariousness for a period of more than twelve years from the date of the framing of the issues was fatal to their claim. Mr. Das Gupta also relied on a decision of Rai Yatindra Nath Chaudhury v. Hari Charan Choudhury, reported in 20 Cal LJ 426 = (AIR 1915 Cal 87) in which it was held that neither Order 41, Rule 2 of the Code of Civil Procedure nor Order 15, Rule 3 (1) has any application for trial of certain issues without evidence long after the date fixed for first hearing.