LALJI PANDEY Vs. BERHAMDEO PANDEY

JUDGEMENT

(1.) This is a reference under Rule 7 of Order XLVI of the Code of 1908 by the District Judge of Mozafferpore and raises questions of considerable nicety and importance. It appears that on the 30fch January 1911, Lalji Pandey and others, as plaintiffs, instituted a suit in the Court of the Small Cause Court Judge of Mozafferpore against the defendants, Burhamdeo Pandey and others, for recovery of what was described as damages for use and occupation of certain land. The substance of the case for the plaintiffs was that they were the superior landlords of the disputed land; that the defendants were in occupation and were bound to cultivate the lands; that they had omitted wilfully to raise any crops, and that consequently during the years 1315 to 1318, the plaintiffs were deprived of their share of the crops. The plaintiffs, therefore, sought to recover Rs. 29-10-3 as the money value of what would have been their share of the produce which might have been grown in the land. The defendants entered appearance and on their objection on the 22nd March 1911, the Small Cause Court Judge held that the suit was not triable as a Small Cause Court suit: he, therefore, returned the plaint to the plaintiffs for presentation to the proper Court. The plaintiffs thereupon applied to the District Judge for revision of this order on the ground that the nature of the suit had been misunderstood by the Small Cause Court Judge and that it was, as a matter of law, cognizable by that Court. The learned Judge has made a reference to this Court, and has expressed an opinion that upon the decision in Kunjo Behari Singh v. Madhab Chundra Ghose 23 C. 884 and Kali Krishna Tagore v. Izzatunnissa Khatun 24 C. 557 the view taken by the Small Cause Court Judge would not be supported.

(2.) At the hearing of the reference the authorities on the subject have been clearly analysed and placed before us with great care by the learned Vakil for the plaintiff, while the case for the defendants (who have not entered appearance) has been presented by Moulvi Muhammad Mustafa Khan, who at the request of the Court undertook to argue the case as amicus curiae, and we are indebted to him for the very full and able argument that he has addressed to us.

(3.) The question for decision is, whether the suit is excluded from the cognizance of the Small Cause Court by reason of Article 8 of the Second Schedule of the Provincial Small Cause Courts Act of 1887. That Article provides that a Small Cause Court shall not take cognizance of a suit for recovery of rent other than house rent. On behalf of the plaintiff it has been contended that the suit is for the recovery of damages and is consequently cognisable in a Court of Small Causes; on behalf of the defendants, the contrary view has been presented that if the plaintiffs are entitled to recover any sum, that sum is in the nature of rent, and a claim in respect thereof must be enforced in the ordinary Civil Court.