NANGUNERI SRI VANAVAMALAI RAMANJUA JEER SWAMIGAL THROUGH HIS AUTHORISED AGENT S V KALLAPIRAN PILLAI Vs. PANDARA NADAR

JUDGEMENT

(1.) THESE were suits brought originally for rent according to a lease agreement as it is called in the plaint in Section A. No. 840 of 1925. This was amended by adding a paragraph for damages for use and occupation of certain land. The question of title in the plaintiff was expressly excluded and the plaintiffs agent goes to the trouble of recording certain remarks on the plaint whereby the plaintiff reserves his remedy in ejectment for another occasion. The preliminary objection is taken that all these three suits are of a small cause nature. Their value is admittedly under Rs. 500. The defendants after the plaints had been filed on the small cause side of the District Munsif's Court of Palmcottah raised a question of title by their defence and claimed to be permanent kudivaramadars of the property in question. The issues were first settled on 15 September, 1922, and the first of them was Is the defendant entitled to the permanent right of occupancy claimed . That was clearly a question which a Court of Small Causes was incompetent to try and that Court accordingly returned the plaints for representation to the proper Court and the plaints were accordingly represented on the Original Side of the District Munsif's Court. On 8 September, 1923, the original issues were amended and the first issue was deleted leaving the question as to the validity of the lease and the amount of damages for use and occupation, in other words, rent or damages for use and occupation. It should be added that the first issue as to title, was deleted on the plaintiff's petition, who it may be added has all along refused, in this litigation at all events, to embark on any discussion as to his title. The suits appear to have been retained rightly or wrongly on the Original Side and judgment was given by the Munsif as long ago as 2lst December, 1923, and by the Additional Subordinate Judge on 5 November, 1924.

(2.) ON the preliminary objection it has been held in Vira Pillai V/s. Rangasami Pillai 22 M. 149, that damages for use and occupation may be of a small cause nature and in Mikkili Ankaya v. Allaparti Rathamma , that a transfer to the Original Side makes no difference. In this case the learned Small Cause Judge does not say that he transferred it under Section 23 but I take it that that is his meaning. If it is not, then, as I have said, by some oversight the cases, after the issues were recast, seem to have been retained on the Original Side. The cases are prima facie clearly of a small cause nature. Mr. Bashyam Iyyengar for the appellant raises the objection that the trials of these suits are ab initio bad and void and they bad no business to be tried on the Original Side. It seems to me rather curious that an objection like this should be taken by the plaintiff who did not seek to get the order of the learned Small Cause Judge revised for all these six years, for the order was made in July, 1922, and when the matter did get into the Original Side succeeded in getting the only issue on which the case was sent to the Original Side deleted, thereby reducing the issues to those of a small cause nature. He seems to have taken no objection to the jurisdiction at the hearing on the Original Side and it is not raised in his grounds of appeal here. It is too late to take that objection now which, as I said, comes with singularly bad grace under the circumstances from the plaintiff. The same question seems to have arisen in a case before Spencer and Ramesam, JJ., reported as Bhuvanapalli Subbaya V/s. Rajah of Venkatagiri 66 Ind. Cas. 207 : 14 L.W. 349 : 42 M.L.J. 118 : A.I.R. 1922 Mad. 352, where the appellant asked that the case should be sent back for re-trial on the Small Cause Side, i.e., for revision as the Original Side ought not to have tried it and the learned Judge refused to interfere. I am asked to interfere in the same way in case I am of opinion, as I clearly am, that these appeals are of a small cause nature. The plaintiff in his grounds of appeal claims a decree on the pleadings and refuses to commit himself, even now as to whether the money alleged to be payable by the defendants is rent or damages for use and occupation. Both the lower Courts, it may be added, found against the plaintiff. I am clearly of opinion that as these suits are of a small cause nature no second appeal will lie and further that there is nothing in these cases to induce me to exercise any discretion in favour of the plaintiff who, as I said has had many years in which to set right any grievance he may have had or any prejudice he may have sustained though, as I said I can see none by his cases having been tried on the Original Side. The three second appeals are, therefore, dismissed with costs in each.