BHAGWAN PRASAD Vs. PELU KEWAT

JUDGEMENT

(1.) THIS is an application in revision by the defendants and arises out of a Small Cause Court suit for recovery of Rs. 35 the value of a nim tree alleged to have been cut and appropriated by defendants 1 and 2. The lower Court decreed the suit to the extent of Rs. 20. One of the grounds taken in the lower Court and urged in this Court relates to the jurisdiction of the Small Cause Court to entertain the suit. It is contended that the allegations in the plaint charge defendants 1 and 2 with the offence of criminal misappropriation, and therefore the suit falls within the purview of Art. 35(11), Schedule 2, Provincial Small Cause Courts Act. The defendants contention is so far right that if the plaintiff's allegation contained in his plaint amounts to an averment that the defendants were guilty of criminal misappropriation the suit was one which should have been instituted in a regular civil Court. I have been taken through the plaint by the learned advocate for the applicants and find that besides defendants 1 and 2 two other persons were impleaded as defendants 3 and 4 who are alleged to be the agents of the zamindars. The plaintiff alleges that defendants 1 and 2 are patwaris of two joining circles who generally act in a highhanded manner and in abuse of their position. The plaint goes on to allege that they cut the nim tree and in a subsequent departmental enquiry which resulted in the dismissal of defendants 1 and 2 defendants 3 and 4 stated that the tree in question had been cut by defendants 1 and 2 with the permission of the zamindar to whom it belonged. One of the defences in the present case was that the tree in fact belonged to the zamindar with whose permission it had been cut. Reading the plaint as a whole I am of opinion that it is consistent with an allegation which falls short of an averment of criminal offence. Defendants 1 and 2 are alleged to have cut the nim tree at the instance of defendants 3 and 4. It may be that the plaintiff alleges that defendants 3 and 4 had No. authority to allow defendants 1 and 2 to cut the tree, but there is no allegation to the effect that defendants 1 and 2 knew that the tree belonged to the plaintiff and not to defendants 3 and 4 who permitted them to cut it, nor is there any allegation that at the time when defendants 1 and 2 were cutting the tree the plaintiff protested and asserted his right. The test in my opinion is whether if in a criminal Court the evidence carried the case no further than what is stated in the plaint a conviction should follow. I have no doubt that no criminal Court would have convicted defendants 1 and 2 if the evidence had carried the case no further than what is alleged in the plaint. There is no allegation expressed or implied that defendants 1 and 2 acted dishonestly and could not have honestly believed that the tree belonged to the zamindar whose karinda permitted them to cut and appropriate the tree. In this view of the case I am not satisfied that the lower Court, had no jurisdiction to entertain the claim which it has partly decreed. The application is accordingly dismissed with costs.