RAMJI DAS AIYAR, THROUGH HIS AUTHORISED AGENT P V SUBRAMANIA AIYAR Vs. ANAINAR ROWTHEN ALIAS NMNAINAR ROWTHEN

JUDGEMENT

(1.) The petitioner in both cases, who is a landholder under the Estates Land Act, was the defendant in two Small Cause suits brought by two ryots within his estate for recovery with interest of certain sums of money paid by them under protest to the Collector about 9 months before the institution of the suits under Section 131 of the Act to set aside sales under the Act of their respective holdings for alleged arrears of rent due by them. Two objections were taken by the defendant- petitioner (1) that the Civil Court had no jurisdiction to entertain the suits by reason of Secs.189 and 213 of the Estates Land Act, and (2) that in any case the Small Cause Court has no jurisdiction as the suits were excluded by item 35 (j) of the second schedule of the Provincial Small Cause Courts Act. These objections were overruled by the Small Cause Court. The first point in these petitions is whether that view is correct. The petitioner also complains that after hearing the pleaders on the objection as to jurisdiction the Court gave final judgment for plaintiffs without going into the merits and giving him (petitioner) an opportunity of showing that the arrears for which the sales were held were legally due as pattas and muchilikas had been previously exchanged and that the view of the Lower Court that the question was res judicata by reason of the decision of the District Judge in two suits between the parties is wrong as Second Appeals Nos. 250 and 251 of 1929 had been filed in this Court against those decisions on 16th December, 1928, before the decision of the Lower Court. Those second appeals are still pending and in any view of the case, the cases will have to go back for trial on the merits. But in view of the questions raised as to jurisdiction it is necessary to decide it first.

(2.) Reading Secs.189 and 213 of the Estates Land Act together it is clear that if the suits can be described as brought by any person deeming himself aggrieved by any proceedings taken under any colour of the Act to seek redress by way of suits for damages, they should have been filed before the Collector and no Civil Court has any jurisdiction in the case. The District Munsif was of opinion that the suits were not for damages because all that is claimed is a refund of the excess rents which plaintiffs were compelled to pay to save their holding. As to the claim for interest he says that it can hardly be said to be one for damages for proceedings taken under colour of the Act. I suppose he meant that the interest arose not out of anything done under colour of the Act but out of unlawful detention by the defendant of the money unlawfully collected under colour of the Act. If so, it is a distinction without a difference. It cannot be that if the money was collected under colour of the Act, a suit for its recovery with the interest lost during its wrongful detention which is the natural consequence of such detention is not for redress for something done under colour of the Act. The real and the only question is whether a suit for refund of money wrongfully collected as arrears of rent under colour of the Act is a suit for damages within the meaning of the section. In my opinion it is. Arguments drawn from the old English forms of action and pleading are not, in my opinion, of much use to interpret the meaning of the expression "suit for damages" in this section. Forms of action are unknown in Indian practice. I, therefore, do not propose to examine whether these were cases in which the plaintiff might have waived the tort. Nor do 1 think that the respondents can get any support from the decision of the Privy Council in Kanhaya Lal V/s. National Bank of India, Ltd. (1913) L.R. 40 I.A. 56 : I.L.R. 40 C. 598 : 25 M.L.J. 104 (P.C.) for the distinction sought to be made between a suit for the recovery of the actual sum extorted by illegal process and a suit for damages for a larger or smaller amount. In my opinion it is not the amount that matters whether it be the same as, or more or less than the amount extorted by the nature of the claim. Where money is by abuse of the process provided by the Estates Land Act unlawfully collected as rent by a landford from a tenant a suit by the latter for its recovery Whether it be called one for money had and received, or one for compensation or one to enforce the obligation declared by Section 72 of the Contract Act is, in my opinion, one for damages under Section 213. This view is all but concluded by the observation of the Judges in The Rajah of Visianagaram v. Narasimha Raju (1916) 3 L.W. 517. That was a suit by the plaintiff, a stranger whose lands were put up for sale by the landholder for arrears of rent due by a tenant on the footing that the lands were included in the holding. The plaintiff preferred a claim which was dismissed. Then he paid the alleged arrears under protest under Section 122 of the Act and brought a suit in a Civil Court for its recovery. The Judges differed on the question whether the plaintiff being a stranger and not the tenant was bound under Section 213 to bring the suit before the Collector. But they agreed that if the plaintiff were the tenant the claim was such that he would be bound to sue before the Collector. Seshagiri Aiyar, J., observed: Next coming to Section 213, I agree with Mr. Sarma that that section applies only where the relationship of landlord and tenant subsists and where the landlord has used the remedies given by the Act wrongfully.

(3.) He then went on to distinguish the case before him on the ground that the plaintiff was a stranger and continued: I take the scope of Section 213 to be to give a speedy remedy as between landlord and tenant in matters in regard to which the landlord, while purporting to invoke the aid of the Act, has failed to comply with the provisions enacted therefor. The object is to give a summary remedy to those against whom irregularities in procedure have been committed.