Bharosa Singh and Others vs Jhauri Sao and Others

Saunders, J.—This is an application u/s 25, Small Cause Courts Act, against the decree in a suit brought for compensation for a crop of paddy which the petitioners are alleged to have wrongfully cut while it was in possession of the plaintiff-opposite party as usufructuary mortgagees, the petitioners having been the mortgagors. The petitioners appear to have taken the crop on the strength of a claim that a settlement of the land had been made with them by the plaintiffs. One of them admitted in the suit that the plaintiffs had obtained a usufructuary mortgage from the petitioners and the Court found, relying on the evidence of one of the plaintiffs, that no settlement of the land had been made with the petitioners. The claim for compensation was, however, considered to be excessive and a smaller sum was decreed on that account.

The main ground on which I am asked to revise the decision of the trial Court is that the suit purports to be a suit for compensation for an act which would have been punishable under Chap. 17, Penal Code, and is, therefore, not cognizable by Court of Small Causes by reason of the provisions of Section 15 of the Act, and Article 35(ii), Schedule 2, of the Act. A sufficient reply to this contention is that the plea was not taken either in the trial Court or in the petitioners'' application for revision. As was observed by the Bombay High Court in Sakhya Baba Lataka v. Sadashiv Parsharam Sathe 1930 Bom 361 it is not open to an unsuccessful litigant to raise in revision a new plea of this character even as regards his own pleading, much loss with regard to the pleading of his successful adversary. But there is also no substance in the contention. It has been held by this Court in Damodar Jha v. Baldeo Prasad 1930 Pat 575 that:

When upon the case laid in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chap. 17, Penal Code, the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is that his action was wrongful or illegal, but not necessarily penal so as to bring him within the purview of the Penal Code, the jurisdiction of the Small Cause Court is not at all barred. In short and without referring to the other circumstances, if upon the plaint a question of a bona fide claim on behalf of the defendant is obvious, then Article 35(ii) will have no application.

In the present case it is clear that if the plaint had been presented to a criminal Court as a complaint, no action would have been taken on it. It is argued on behalf of the petitioners that it alleges facts that would constitute the offence of theft. The crop, however, was not removed until after an order was passed by a Magistrate against the plaintiffs in a case u/s 144, Criminal P.C., to which the petitioners also were parties. It is apparent from the plaint itself that the defendants were asserting a bona fide claim to be entitled to appropriate the crop. It is stated that during the investigation made by the Police in connexion with the dispute that was dealt with u/s 144, Criminal P.C., the petitioners induced the Sub-Inspector to believe that they were in occupation of the land as bataidars under the plaintiffs.

It is next contended that those of the petitioners who are minors are not bound by the decree because it was passed on a compromise and no leave was given by the Court to their guardians to enter into a compromise on their behalf. There is a reference in the order-sheet to a compromise. It is stated that the "parties agree to a compromise," but there is no further mention of this compromise and afterwards evidence was taken, one of the defendants who is the father of the minors and one of the plaintiffs being examined as witnesses. The decision is not based upon the compromise, but upon the evidence given in the case. It is also urged that the minors are not bound by an admission made by their father. But I am unable to appreciate the force of this contention. They were parties to the case and they were represented by a pleader appointed by their guardian. It was open to them to deny the admission if it was not correct. Their father, however, was obviously the person best qualified to say whether the plaintiffs were usufructuary mortgagees or not. It is not even now asserted that they were not usufructuary mortgagees.

Finally, it is contended that there ought to be no decree against the minors because they are not liable for a breach of the contract embodied in the mortgage-deed. There is also no substance in this contention. The suit was not for damages for breach of a contract, but for wrongful misappropriation of the crop. Moreover, this ground of objection to the decree of the trial Court was not taken in the application for revision. The result is that the application is dismissed with costs. I assess the hearing fee at two gold mohurs.