MATHURA Vs. RAGHUNATH SAHAI

JUDGEMENT

(1.) I do not think I should interfere in this case. The suit was brought in a Court of Small Causes and what the applicant seeks is that I should treat the matter as an appeal from the decree of that Court. However, a legal objection has been taken to the effect that the suit was not of a nature cognizable by a Small Cause Court-, and reference has been made to Article 35(ii) and Article 43(a). I do not think that these articles are applicable to the present case. According to the allegations in the plaint, the defendants against whom the suit was brought, had committed no criminal offence for which compensation was being claimed. The person who is said to have misappropriated the ornaments about which the suit was brought, was Tulshi Ram, the plaintiffs gumashta. The plaintiffs case was that Tulshi Ram, without authority from the plaintiffs, handed over the ornaments in suit, to the defendants. The defendants alleged that Tulshi Ram had pawned them with the defendants and that it was within the scope of his authority to do so. In a previous suit whish the defendants brought against the plaintiffs, they made a similar allegation and they sought to recover the amount of the alleged loan from the plaintiffs and for sale of the ornaments. That suit was dismissed as against the plaintiffs. The Court held that Tulshi Ram had no authority to pledge the ornaments, which were the property of the present plaintiffs, to the defendants. In the present suit also the Court below had found that Tulshi Ram had no authority to hand over the ornaments. The plaintiffs, it is true, in the previous suit which they brought, had alleged that Tulshi Ram had credited in the plaintiffs account the sum of Rs. 165 as received from the defendants and that the plaintiffs were prepared to give credit to the defendants for that amount, but the defendants denied the plaintiffs allegation and contented the claim upon the basis of the so- called pledge by Tulshi Ram. That suit was withdrawn with liberty to bring a fresh suit. In the present suit the plaintiffs claim the recovery of the ornaments and, in the alternative, for their value. As it was found that Tulshi Ram had no authority to pledge the ornaments or to sell them, the plaintiffs are entitled to recover the ornaments. The ornaments could not, however, be identified and, therefore, the only course left for the Court to do was to make a decree for an amount which would compensate the plaintiffs for the ornaments in the possession of the defendants. The Rs. 165 which Tulshi Ram received from the defendants and credited to the plaintiffs in their account was a matter between Tulshi Ram and the plaintiffs. Furthermore, the claim previously brought by the defendants to recover this sum from the plaintiffs was dismissed as against them. The defendants cannot, therefore, claim that sum as a condition product to the return of the ornaments or the payment of their value. The decree whish has been made by the Court below for an amount, which is much less than the amount claimed in the plaint, seems to be a reasonable decree. I accordingly dismiss this application but, having regard to the circumstances of the case, I make no order as to costs.