BHOLA NATH SAHA Vs. KRISHNA LAL SAHA

JUDGEMENT

(1.) THIS appeal is preferred against the decision of the Sub-Judge of Hooghly reversing the decision of the Munsif who had dismissed the suit and passing a decree in favour of the plaintiff for Rs. 100 and costs. A preliminary objection is taken that no second appeal lies, the suit being cognizable by a Small Cause Court. The plaintiff sued to recover the sum of Rs. 500 and so far as the amount is conceived there is no doubt that the Small Cause Court would have jurisdiction to entertain the suit. It was argued for the appellant that the nature of the claim excluded the jurisdiction. Section 15 of the Provincial Small Cause Courts Act 1887 empowers a Small Cause Court to try all suits of a civil nature, of which the value does not exceed Rs. 500, except those specified in Second Schedule. It is necessary, therefore, in order to oust the jurisdiction of the Small Cause Court that the suit should fall within that category. The real nature of the suit must be ascertained from the plaint. What the plaintiff complained of was shortly this. The defendant's daughter was married to plaintiff's younger brother, Johar Lal Sava. Johar Lal Sava died, leaving his wife pregnant with her first child. She was living peacefully in plaintiff's house but defendant was anxious to remove her to his own house for her confinement. It is alleged that on the 6 Kartic 1311, during plaintiff's absence, the defendant with police officers and strangers entered the inner apartment of the plaintiff's house and remained there for some time. The plaintiff's wife and other female members were obliged to remain secluded and could not pursue their usual avocations. Later in the day the plaintiff returned, remonstrated with the defendant for what he has done, and dismissed him along with his daughter, who was allowed to take away her ornaments. The plaint continues "that owing to the aforesaid acts of malfeasance and misfeasance and trespass done by the defendant, the plaintiff is afflicted both physically and mentally and has lost his respect and honour; he has become an object of laughter and slight before the public, for which the defendant is bound to give proper compensation to the plaintiff." The plaintiff then asks for a decree for Rs. 500 as damages for the act of malfeasance and misfeasance and trespass, mental agony and defamation perpetrated by the defendant. It is clearly not a case of defamation" in the proper sense of that word. There is no allegation of any defamatory statement having been made by the defendant. The case is obviously one of damages for "trespass" the consequence of which has been to injure plaintiff's reputation and feelings. No other kind of damage or injury is suggested. It was first argued for the appellant that the suit fell within Clause (11) of the Second Schedule, "a suit for the determination or enforcement of any other right to or interest in immoveable property," because (it was said) the plaintiff's widowed sister-in-law had some interest in the house, and the suit raised the question of defendant's right to enter it. THIS, argument is obviously unsound. No question whatever arose in this case of a right to immoveable property nor was it necessary to determine any such question. It was next contended that the suit fell within Clause 35(l) "for injury to the person in any case not specified in the foregoing sub-clauses of this clause." But injury to the person must, we think, be taken to have its ordinary meaning of bodily injury. The person in Clause (l) is evidently used in contra distinction to the phrase "a person" which is found in sub-clauses (a) and (h); and the word person used with the definite article generally signifies the body. Injuries to the person are a well recognized class of torts. Though the plaintiff speaks in his plaint of physical and mental affliction, it is not suggested that there has been in this case any actual bodily injury. The case is, as we have said, really one of trespass, which act the plaintiff says has affected him in a particular way. There is nothing in the Act to take a suit for damages for trespass out of the cognisance of a Small Cause Court. We are, therefore, of opinion that the Small Cause Court had juris-diction to entertain this suit, and consequently no second appeal lies. The same view was taken by the Madras High Court in the case of Trilochana Bakshi V/s. Brojo Patro 12 M, L, J, 349, where the plaintiff sued for damages for trespass on immoveable property which he said had caused him loss of character and mental anxiety. The facts of that case were very similar to the present, as the defendant was alleged to have wrongfully invaded the house of the plaintiff with the police in execution of a search warrant.

(2.) IN the view that we take, it is unnecessary to go into the merits of this case, and we express no opinion upon them. The appeal fails and is dismissed with costs.