BHAROSA SINGH Vs. JHAURI SAO

JUDGEMENT

(1.) This is an application under Section 25, Small Cause Courts Act, against the decree in a suit brought for compensation for a crop of paddy which the petitioners are alleged to have wrongfully cut while it was in possession of the plaintiff- opposite party as usufructuary mortgagees, the petitioners having been the mortgagors. The petitioners appear to have taken the crop on the strength of a claim that a settlement of the land had been made with them by the plaintiffs. One of them admitted in the suit that the plaintiffs had obtained a usufructuary mortgage from the petitioners and the Court found, relying on the evidence of one of the plaintiffs, that no settlement of the land had been made with the petitioners. The claim for compensation was, however, considered to be excessive and a smaller sum was decreed on that account.

(2.) The main ground on which I am asked to revise the decision of the trial Court is that the suit purports to be a suit for compensation for an act which would have been punishable under Chap. 17, Indian Penal Code, and is, therefore, not cognizable by Court of Small Causes by reason of the provisions of Section 15 of the Act, and Art. 35(ii), Schedule 2, of the Act. A sufficient reply to this contention is that the plea was not taken either in the trial Court or in the petitioners application for revision. As was observed by the Bombay High Court in Sakhya Baba Lataka v. Sadashiv Parsharam Sathe 1930 Bom 361 it is not open to an unsuccessful litigant to raise in revision a new plea of this character even as regards his own pleading, much loss with regard to the pleading of his successful adversary. But there is also no substance in the contention. It has been held by this Court in Damodar Jha v. Baldeo Prasad 1930 Pat 575 that: When upon the case laid in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chap. 17, Indian Penal Code, the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is that his action was wrongful or illegal, but not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred. In short and without referring to the other circumstances, if upon the plaint a question of a bona fide claim on behalf of the defendant is obvious, then Art. 35(ii) will have no application.

(3.) In the present case it is clear that if the plaint had been presented to a criminal Court as a complaint, no action would have been taken on it. It is argued on behalf of the petitioners that it alleges facts that would constitute the offence of theft. The crop, however, was not removed until after an order was passed by a Magistrate against the plaintiffs in a case under Section 144, Criminal P.C., to which the petitioners also were parties. It is apparent from the plaint itself that the defendants were asserting a bona fide claim to be entitled to appropriate the crop. It is stated that during the investigation made by the Police in connexion with the dispute that was dealt with under Section 144, Criminal P.C., the petitioners induced the Sub-Inspector to believe that they were in occupation of the land as bataidars under the plaintiffs.