KUKUR SAHU Vs. BIBI SALIHAN

JUDGEMENT

(1.) This Rule is directed against the order of the learned Judge in the Court below against his decision with regard to a matter of jurisdiction. The suit was tried before the Munsif and an appeal was preferred against the decision of the Munsif to the Subordinate Judge. It appears that the Additional Subordinate Judge came to a conclusion in favour of the petitioner who was appellant before him, but dismissed his appeal on the ground that the suit originally was a suit cognizable by the Judge of Small Cause Court and in consequence no appeal lay to him.

(2.) It is now contended by the learned advocate on behalf of the petitioner that the suit was beyond the jurisdiction of a Small Cause Court Judge inasmuch it came under Art. 8 or Art. 31, Small Cause Courts Act. It is quite clear that Art. 31 did not apply to the suit as it was not a suit for account, nor was it a suit to recover surplus collections received by the mortgagee after the mortgage had been satisfied. It is clear that if the petitioner was to succeed, his argument must be based on Art. 8, and under that article he is limited to the argument that it was an action for rent. Prima facie it was certainly not a suit for rent. The plaintiff was the purchaser of arrears of payment under a kabuliyat dated 4 July 1922. Under what circumstance or for what reason the defendant contracted to pay that amount, seeing that he was a usufructuary mortgagee, it is difficult to see but in any event quite irrelevant for, the purposes of this case. He released a part of his zarpeshgi lease and then agreed to pay as profit on account of raiyati right the sum of Rs. 28.

(3.) Now it is clear that he was paying as mortgagee and not as a tenant (there being no relationship of landlord and tenant between the parties), the relationship of mortgagee and mortgagor existed. If it became necessary to decide that point one would assume that payments made as the profits of the land were in excess of the interest payable by the mortgagor to the mortgagee: or, to put it more exactly, the amount of interest in respect of which the mortgagee would be entitled to recoup himself. It is impossible in my judgment to hold that it was a payment of rent; and that brings me to the only other question, whether the Judge trying the case under the Small Cause Courts Act would give the petitioner a right of appeal? That matter in my judgment is concluded by Section 16, Small Cause Courts Act. Neither the agreement of the parties nor the will of the Judge can make this anything other than a Small Cause Court suit. It was within the pecuniary jurisdiction of the Judge and not excluded by the Articles to which I have referred or any other Article. Whether the Judge announced that he was trying as a Munsif or not, makes no difference, as Section 16 excludes Munsif's jurisdiction and gives jurisdiction as a Small Cause Court and Small Cause Court only. The learned Judge, was therefore, right in coming to the conclusion that he had no jurisdiction to hear the appeal. I regret to come to this conclusion, as there were points which might have been decided in favour of the defendant-petitioner; but nothing that I say must in any way influence other actions in future regarding the matter, as materials are not before me which would enable me to come to any conclusive decision with regard to the point. The Rule is discharged with costs: hearing-fee two gold mohurs.