RAJAMMAL IYER Vs. KRISHNASWAMY AIYENGAR

JUDGEMENT

(1.) It is conceded for the respondent that the present suit is not one or an account, as the Subordinate Judge seems to have thought, as there is no question of accounting in this case. It was, however, suggested that the last clause of Art. 31 of Schedule II of the Provincial Small Cause Courts Act, IX of 1887, will apply, but this suit is not for profits but only for money which plaintiff has been obliged to pay as profits to the decree-holder in Original Suit No. 47 of 1914, on the file of the District Munsif's Court of Tiruvalur, under the decree against him, as part of the damages, the price of the property lost by the vendor's title being defective, being the other part. The suit is really one for damages for breach of covenant for title and is clearly not excluded from the cognisance of the Small Cause Court. The order of the lower Court, in so far as it holds that the suit is not within its jurisdiction, cannot thus be supported.

(2.) The lower Court has also purported to act under Section 23 of the Provincial Small Cause Courts Act, in ordering the return of the plaint, on the ground that an account of the value of the entire lands sold and the value of the lands taken away from the plaintiff by the decree- holder and the profits due to the plaintiff have to be ascertained and also some questions of ownership of the land might arise. In the first place, when the Court ruled that it had no jurisdiction over the suit, it had no power to act under Section 23; for, that is a discretionary power that a Court having jurisdiction over the suit exercises. Secondly, there does not seem to be any proper ground for an order under Section 23 here. On the pleadings no question has been raised as to title of immoveable property nor any other question of title which the Court could not finally determine. Though, ordinarily, a discretion exercised by a Small Cause Court under Section 23 will not be interfered with in revision, in the particular circumstances of this case I think the order should not be sustained, it being with out jurisdiction on the view of the lower Court and it being passed without any ground to support it.

(3.) The order of the lower Court is set aside and it is directed to take the suit On its file and dispose of it according to law; costs will abide and follow the result.