ABDUR REHMAN PATHAN Vs. BHARMA BUDHYA PATIL

JUDGEMENT

(1.) This is an application under Section 25 of the Provincial Small Cause Courts Act. It arises out of a suit filed by the plaintiff to recover the amount of damages done by the defendants to the plaintiff's trees by illegally cutting them. The defendants put forward their contention on the merits alleging that they had not cut the plaintiff's trees, but that the trees cut by them were their own trees.

(2.) The First Class Subordinate Judge with Small Cause Court powers tried it as a Small Cause suit, and decided in favour of the plaintiff and passed a decree in his favour.

(3.) Defendants Nos. 2 and 3 have applied to this Court under Section 25 of the Provincial Small Cause Courts Act. It is urged in support of the application that the Small Cause Court had no jurisdiction to try the suit, as it is excluded from the jurisdiction of the Small Cause Court having regard to the provision of Art. 35 (ii) in the Second Schedule of the Provincial Small Cause Courts Act IX of 1887. This point was not raised in the lower Court, but it seems to us that the contention is correct. A similar point was recently allowed by Sir Norman Macleod C.J. in Ayub Haji V/s. Jainuddin. We agree with the view taken in that case, and we think that the point should be allowed. The plaintiff has really no answer to it on the merits.