KHINWA SINGH Vs. NEMI SINGH

JUDGEMENT

(1.) PLAINTIFF Khinwasingh, who is the appellant, admittedly purchased a she-buffalo from defendant Nemisingh on Mangsir Badi 7, Smt. 2009 (Novembers, 1952), for Rs. 400/- and took its delivery. About a week later, the police found that the buffalo belonged to one Pannalal who had entrusted it to the custody of one Paudan Singh and that Paudan Singh was guilty of criminal breach of trust in selling the buffalo to Nemisingh. The police therefore seized the buffalo from the plaintiff's custody on November 15, 1952, and it is admitted that the plaintiff has not been able to regain its possession. He therefore instituted the present suit for the recovery of Rs. 400/- on account of the failure of the consideration and Rs 100/- by way of damages. According to the plaintiff, the defendant knew all along that the buffalo belonged to Pannalal Baheti of Karel, who had entrusted it to Paudan Singh and that the defendant falsely represented to the plaintiff, for the purpose of cheating him that he had purchased the buffalo from Paudansingh as it belonged to him. Defendant Nemisingh resisted the suit and took the plea that he had purchased the buffalo from Paudan Singh on Bhadwa Badi 5, Smt. 2009, as evidenced by entry Ex. A-1 of that date in his 'khata' and that he had every right to sell it to the plaintiff, so that the plaintiff was not entitled to bring the suit. The learned Munsiff of Ajmer held that the plaintiff had not succeeded in proving his allegation about the alleged cheating and that there was no question of implied warranty under sec. 14 of the Sale of Goods Act. He therefore dismissed the suit on January 9, 1958, and as the plaintiff's first appeal has been dismissed by the learned Civil Judge of Ajmer on August 31, 1959, he has preferred this second Appeal.

(2.) A preliminary objection has been raised on behalf of the defendant-respondent that this second appeal is not maintainable under sec. 102, Civil Procedure Code, because the suit was triable by a Court of Small Causes. It is true that so far as its valuation is concerned, the suit could be said to fall within the purview of a court of small causes, but it is excepted from such cognizance by virtue of item 35 (j) of the Schedule read with sec. 13 of the Rajasthan Small Cause Courts Ordinance, 1950. Under that item, a suit for compensation 'for an act which is, or, save for the provisions of Chapter IV of the Penal Code, would be an offence punishable under Chapter XVII of the said Code" is outside the purview of a court of small causes. A reading of paragraph 2 of the plaint shows that the plaintiff clearly alleged that the defendant cheated him in the transaction which has given rise to the present suit, and as all the ingredients of the alleged offence have been mentioned in that paragraph, I have no doubt that the suit was within the cognizance of the small causes court. Sec. 102 of the Civil Procedure Code cannot therefore bar this second appeal.