RAMJI MAHTON Vs. GOPAL MAHTON

JUDGEMENT

(1.) This Rule is directed against the order of the Small Cause Court Judge of Bihar allowing the plaintiffs damages in the following circumstances. The plaintiffs bad made an application under Order XXI, Rule 58 of the Civil P. C. for release of their property which had been attached by tile defendants. Having failed in that case, they brought a suit in which they succeeded and the property was released from attachment. Thereupon the plaintiffs brought this action, the sub- stantial portion of their claim being for interest on an amount which by an order of the Court they had been forced to deposit pending the disposal of their suit under Order XXI, Rule 63.

(2.) The plaintiffs are on the horns of dilemma. If it was ah action for trespass under Art. 35(j) and the only cause of action can be an action in trespass then it is clear that the jurisdiction of the Small Cause Court is ousted. If, on the other hand, it was a claim, as the Bombay High Court have stated in the case of Jodha Bijai V/s. Maganlal Chhaganlal Desai A.I.R. 1930 Bom. 80 : 124 Ind. Cas. 112 : 31 Bom. L.R. 1307 : Ind. Rul. (1930) Bom. 249, for interest by way of damages, then with great-respect to the learned Judges having regard to the recent decision of their Lordships of the J udicial Committee of the Privy Council in a case so far unreported, being the case of the Bengal-Nagpur Railway Company Ltd. V/s. Ruttanji Ramji A.I.R. 1938 P.C. 67 : 173 Ind. Cas. 15 : 1938 O.L.R. 119 : 19 P.L.T. 125 : (1938) A.L.J. 169 : 10 R.P.C. 216 : 47 L.W. 281 : (1938) O.W.N 261 : 1938 A.L.R. 167 : 4 B.R. 374(P.C.), interest is not recoverable by way of damages. The third answer to the plaintiffs case is that the damage claimed is too remote: I make that observation with regard to the merits. But in so far as it is for damages for trespass as contemplated by Art. 35(j), the Court below had no jurisdiction. The fact that the parties did not take the objection as regards jurisdiction, might, in certain circumstances, incline this Court to refuse to exercise its discretion in favour of the petiticners; but the case here is so clear as to show that in any event the Judge had no jurisdiction, that that principle does not apply.

(3.) The Rule is made absolute with costs-hearing-fee two gold mohurs.