RAMANATHAN CHETTY Vs. MARUTHAPPA KONE

JUDGEMENT

(1.) In this case, the plaintiff sued defendants Nos. 1 and 2 for rent due under a registered lease executed by them in favour of the plaintiff and the third defendant. The third defendant was made a party, because, defendants Nos. 1 and 2 stated that he had received the full amount due from them.. In his written statement, paragraph 10, the 3rd defendant pleaded that he appropriated the amount which he had thus recovered from defendants Nos. 1 and 2 towards certain sums of money due to him under what he alleged to be a marakal hootoo right. He did not say that the amount due under this marakal hootoo right had been ascertained and that an ascertained sum of money was due to him. Under these circumstances no question of set-off arises in this case. The real question to be discussed in this case is whether defendants Nos. 1 and 2 have paid the money honestly to the third defendant and whether that payment is a bar to the plaintiff recovering his share. That question should be decided by a Court of Small Causes z, and there is no necessity for directing the "plaint to be returned to the plaintiff for presentation to the proper Court.

(2.) Mr. Seshagiri Sastri raises a preliminary objection before me that this petition does not lie under Section 25 of the Small Cause Courts Act, because there is no case decided" by the Subordinate Judge sitting on the Small Cause side; and he quoted Subal Ram Dutt v. Jagadanunda Maxumdar 1 Ind. Cas. 288 : 13 C.W.N. 403 for the position that, unless there has been a decision on the merits, Section 25 has no application. With all respect, I am unable to follow this decision. The word decided" in Section 25 means "disposed of." It does not mean that there must be a decision upon the merits. I am fortified in this position by the decision of Mookerjee and Teunon, JJ., in Umesh Chandra Palodhi v. Rakhal Chandra Chatterjee 10 Ind. Cas. 8 : 15 C.W.N. 666 : 14 C.L.J. 118. The Subordinate Judge is wrong in thinking that any question of title has to be gone into in this case. I reverse his order and direct him to take back the case on his file and to dispose of it according to law. The costs will abide the result.

(3.) Civil Revision Petitions Nos. 1016 and 1017 of 1912 follow.