M DORASWAMI IYENGAR Vs. KNARAYANA AIYANGAR

JUDGEMENT

(1.) THE first point in this appeal is whether the cognisance of the suit by tin City Civil Court is barred by Section 3 of the City Civil Court Act, VII of 1892. THE appellant relies on Section 41 of the Presidency Small Cause Courts Act XV of 1882 and contends that, because an application to eject a tenant could be filed in the Small Cause Court, the present suit before the City Civil Court is barred. We do not think this contention is tenable. THE present suit before the City Civil Court is obviously not cognisable by the Small Cause Court (Vide Section 19 of Act XV of 1882). What is cognisable is merely an application. Order VI Rule 3 of the Rules for the Presidency Small Cause Courts no doubt says that an application of Section 4) of the Presidency Small Cause Courts Act shall, ube in the form of a plaint but, on this ground, the application does not become a suit. We therefore feel ,that the present suit was not cognisable by the Small Cause Court as a suit and therefore Section 3 of the City Civil Court Act does not prohibt its being filed before the City Civil Court. THE cases of Abdul Rahiman Sahib V/s. Gangadtwam Iyer (1916) 4 L.W. 402, has no bearing on the point before us. It decides that suits under Secs.47 and 49 of the Small Cause Courts Act should be filed before the High Court. Kalyan Chand Lalchand V/s. Sitabai (1913) I.L.R. 38 Bom. 309, and Venkata Cliandrappa Nayani Varu V/s. Venkataram Reddi (1898) I.L.R. 32 Mad. 256, deal with the construction of Section 11 of the Civil Procedure Code and therefore cannot help us in construing Section 3 of the City Civil Court Act.

(2.) COMING to the merits, it has been contended that the evidence does not support the finding that the plaintiff is a tenant under the Official Assignee and that the first defendant is a sub-tenant under the plaintiff. It is also contended that the title of the plaintiff is really a title to the whole leasehold interest of the insolvent Srinivasa Aiyangar by assignment from the Official Assignee and as he has not got a registered instrument, the plaintiff is not in a position to prove this title. It seems to us that the evidence of the plaintiff supported as it is by Ex. E which the lower court has found to be genuine, conclusively shows that the original arrangement entered into by the second defendant, Venkatapathy Aiyangar with the Official Assignee was really on behalf of the plaintiff, that the second defendant was benamidar for the plaintiff, that the second defendant (representing the plaintiff) was a tenant under the Official Assignee and that the first defendant was a sub-tenant under the plaintiff. Whether the transaction between the Official Assignee and the plaintiff actually amounts to an assignment or only a lease of the lease-hold right need not be decided. It is enough that the first defendant holds as tenant under the plaintiff and the amount of Rs. 9-8-0 which he has been paying to the plaintiff is clearly as balance of rent of Rs. 30 for which he has been holding the premises under the plaintiff he having paid Rs. 20-8-0 directly to the Official Assignee. The findings of the City Civil Judge are correct. The appeal fails and is dismissed with costs.