BHIKAJI HARI CHAUBAL Vs. RADHABAI SITARAM KULKARNI

JUDGEMENT

(1.) THIS is a suit by the plaintiff against the defendant alleging that they are both sharers in a Kulkarni Vatan, and that the defendant has received the profits of the office, and has not paid to her share for a certain number of years. The defendant admits that he has received the profits and admits that the plaintiff is a sharer, but only disputes the quantum of her share. The suit is, therefore, a suit for money had and received by the defendant for the use of the plaintiff: see Harmukhgauri v. Harisuhhprasad (1888) I.L.R. 7 Bom. 191 and Damodar Gopal Dikshit v. Chintaman Balkrishna Karve (1892) I.L.R. 17 Bom. 42. The claim was, therefore, a claim which could have been tried in a Small Cause Court, assuming there was one having jurisdiction where the suit was instituted, and the claim being under Rs. 500, it is a claim of a Small Cause Court nature in respect of which no second appeal lies. We have been asked by the appellant s pleader to treat it as an application under Section 115 of the Civil Procedure Code, 1908. But if we were to accede to that request it would not assist his client because Mr. Halbhavi, who first entertained the suit, had no Small Cause Court jurisdiction. Therefore, the first appeal was entertained by the appellate Court with jurisdiction. We dismiss the appeal with costs.