JAGO KUNBI Vs. BAJIRAO

JUDGEMENT

(1.) THE present suit was brought-by the plaintiff non-applicants for recovery of certain property or of its value which they alleged the defendants had forcibly removed from the cart in which the property was being conveyed from one place to another. On the allegations' made in the plaint, the acts of the defendants would certainly have amounted to an offence under Chap. 17, I.P.C. The defence - vide para. 6 of defendant 1's written statement filed on 15th February 1927 - was that the goods in question were his own property and that he was entitled to remove them. It seems to me; that clearly this suit was one which the Small Cause Court could not entertain having regard to Article 43 read with Article 35(2), Schedule 2, Provincial - Small Cause Courts Act. The pleader for the plaintiff non-applicants has referred me to the decision in Shiv Gir v. Khazan Gir A.I.R. 1922 Lah. 451 as well as to a similar decision in a non-official publication, but, in both these cases, the finding was that there was, in reality no allegation of a criminal offence.

(2.) IT is hardly necessary to add that it is on the plaint that the question of jurisdiction must be prima facie determined, and not by the nature of the defence or, the actual evidence eventually given in, the case. Prom this point of view, therefore, the jurisdiction of the Small Cause Court was, in my opinion, clearly barred, and the plaintiffs' suit must necessarily fail. It seems to me that as the plaintiffs brought their suit in a wrong Court and as the Court failed to notice the fact that it had no jurisdiction, it was the duty of the present defendant-applicant, to have raised an objection in the lower Court. This he did not do, and the suit thus fails on a purely technical ground in spite of the plaintiffs having made out on the evidence on record, a strong prima facie case for the relief they claimed. In those circumstances, I direct that the parties should bear their own costs in both Courts. The judgment and decree, of which revision is sought, are reversed and instead a decree will issue dismissing the plaintiffs' suit.