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Civil Rule No. 332 of 1962, decided on 10th April 1964.
S. 15 (1) read with Second Sch., Art. 35, item (ii)‑Suit for compensation ---Allegations in plaint constituting various offences--‑Suit not entertainable by small causes court‑Such suit filed in small cause Court treated in appeal as ordinary money suit and dealt with accordingly.
Majid Biswas and others v. Adiluddin Shaikh P L D 1960 Dacca 907 ref.
Raising objection as to jurisdiction after conclusion of argument‑Disapproved ‑ Question, nevertheless, examined for ends of justice.
Ahmed Sobhan for Petitioner.
S. A. Chowdhury for the Opposite‑Parties.
This Rule is directed against an order made by Mr. Md. Moseeh, Subordinate Judge, 3rd Court, Chittagong, on 13‑12‑61 reversing that of Mr. A. M. Khan, Munsiff, Cox's Bazar, dated 27‑12‑60.
It is stated in the petition inter alia that the plaintiff‑opposite- party filed a suit claiming compensation for an amount of Rs. 180 for reaping the paddy grown by him. It is claimed in the suit that the disputed land is owned and possessed by the plaintiff. It originally belonged to him and his brother in raiyati right but he purchased the same subsequently at an auction sale in the benami of one Abdul Hakim Sowdagar who in his turn relinquished it in the name of the plaintiff's son Soleman, who subsequently effected a transfer in favour of his father, the plaintiff. The defendants prayed for barga settlement which was refused and out of grudge they trespassed into the disputed land and forcibly reaped away the paddy grown by the plaintiff in the suit land.
The suit is contested by defendant No. 8, claiming that his father Moklesur Rahman had a korfa interest in the disputed land and after it was diluviated, the plaintiff managed to get his name entered in the record‑of‑rights on its reappearance. It is further claimed that during his life time, his father mortgaged a portion of land to one Abdul Hakim Sowdagar and Aminullah, and the said Abdul Hakim subsequently auction‑purchased the raiyati interest of the plaintiff at a rent sale, and thereafter mortgage was redeemed by the defendant No. 8 who took khas possession of the land.
The learned Munsif disbelieved the allegations of possession and growing of paddy in the disputed land as made by the plaintiff and dismissed the suit.
The learned Subordinate Judge on appeal, held that the plaintiff was in possession of the suit land and he grew the paddy which was cut away by the defendants and decreed the suit and reversed the decision of the learned Munsif.
Mr. Ahmed Sobhan, learned Advocate appearing before me on behalf of the petitioner submits that the learned Subordinate Judge erred in law in not holding that the plaintiff in this case indirectly want a declaration of title and recovery of possession beyond the scope of the suit. The learned Subordinate Judge on a consideration of the evidence led in the case, recorded his finding in this behalf in the following terms:--
"When I find that by civil Court decree the delivery of possession was given in the entire land to the plaintiff, we can at least hold that the plaintiff has got his prima facie title in the disputed land."
On a consideration of the materials placed before him, the learned Subordinate Judge recorded his finding to the effect that the plaintiff had prima facie title. No ground has been made out before me for interference with this finding of fact. This contention of the learned Advocate has therefore no substance.
The next point urged by the learned Advocate is that one Kabir who is alleged to be bargadar of the plaintiff has not been examined. It is true that the learned Subordinate Judge has not in specific words indicated that be was considering the question of presumption arising out of non‑examination of a material witness. He has, however, in fact, taken into consideration the question of non‑examination of Kabir in his judgment and he observed that there were other witnesses who support the case of the plaintiff and as such non‑examination of this particular witness would not matter. I am therefore of opinion that this contention of the learned Advocate has also no substance.
After the argument of the learned Advocate for the petitioner the learned Advocate for the opposite‑parties gave his reply to the points discussed above. After the reply of the learned Advocate for the opposite‑parties, Mr. Sobhan asked for the permission of the Court to raise a question of jurisdiction. His point was that the matter was triable by Small Causes Court, and as such, there was no provision of appeal before the learned Subordinate Judge. I must record my disapproval to raising an objection after the conclusion of the argument of the learned Advocate for the opposite‑parties. But at the same time, as it was a question) A of jurisdiction, I thought, I should examine it in the ends of justice. I adjourned the case for two days as the learned Advocate for the opposite‑parties submitted to the Court that it would not be convenient for him to meet this new point without some time being given to him for preparation. The matter accordingly came up for hearing on 8‑4‑64 on which day Mr. Ahmed Sobhan filed a formal petition for raising the objection indicated above. The additional ground taken by him is in the following terms
"For that as the suit was of a nature triable by the Small Causes Court, the appeal against the order of learned Munsif was incompetent and as such the judgment and decree passed by the learned Subordinate Judge was without jurisdiction inasmuch as revisional power has only been given to the High Court against the order of the learned Munsif."
I have heard the argument of Mr. Ahmed Sobhan as well as the reply of Mr. S. A. Chowdhury on this point.
Subsection (1), section 15 of the Provincial Small Causes Courts Act provides that no Small Causes Court shall take cognizance of the suit specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes. It is, therefore, necessary to consider as to what suits have been excluded in the aforesaid second schedule of the Act.
Reference should now be made to Article 35 of the Second Schedule item (ii) as set out below
"A suit for compensation
(ii) for an act which is, or, save for the provisions of Chapter IV of the Pakistan Penal Code, would be an offence punishable under Chapter XVII of the said Code."
In this case it appears that the plaint inter alia contains the following allegations
"The defendants had desired to cultivate the land in suit in barga under the plaintiff for a stipulated period of one year. As the plaintiff did not settle the land to them, the defendants out of that grudge, forcibly cut away the paddy grown by the plaintiffs, on 17‑12‑58 A. D. (in 1365 B. S.) having trespassed into the land in collusion with the marginally noted persons.
(1) Haji Abdul Hakim Sodagar.
(2) Maulvi Khurshed Ahmed Chowdhury.
(3) Hakim Mia Sodagar of village Lakshyar Char."
The passage of the plaint quoted above, has been translated by the office and learned Advocates for the petitioner as well as the opposite‑party accepted the same as accurate translation of the Bengali version.
The allegations contained in the above paragraph would constitute, if established an offence under section 379 of the Pakistan Penal Code. The expression "out of that grudge forcibly cut away the paddy grown by the plaintiffs" is indeed significant. The allegation is that the paddy was grown by the plaintiff. The word "grudge" indicates motive and "forcibly taking away" indicates that it was done with a view to cause wrongful loss to the plaintiff. Therefore, although the word "dishonestly" is not found in the said paragraph but logically one is driven to that conclusion.
Secondly, the word trespass' has been used in the said paragraph and as I have stated that the allegations constitute an offence of theft, trespass in this context would be for the purpose of committing an offence, namely, theft. That being so, the allegations if proved, constitute also apt offence of criminal trespass as defined in section 441 of the Penal Code. The offence of theft is defined in section 378 and punishment for the same is provided in section 379 of the Code. On a reference to Chapter XVII of the Code, it appears that sections 378, 379. 441 and 447 all appear in the aforesaid Chapter XVII. Since the allegations as noticed, constitute the offences of 'penal nature' as provided in the sections referred to above, the suit cannot, by reason of the aforesaid provisions of the Small Causes Court Act, be entertained by that Court. It has therefore been rightly treated as an ordinary Money Suit.
The view expressed above finds support in the case of Majid Biswas and others v. Adiluddin Shaikh (P L D 1960 Dacca 907). On an examina tion of the averments made in the plaint in that case, it was, however, found that the allegations of that case did not constitute an offence of penal nature. But it was held that if it did, the suit would not be maintainable in the Small Causes Court as will appear from the following observation of Rahman, J.
"From a review of these decisions, it appears that the principle adopted in such cases, is that in order to bring a suit within this ambit and to determine whether an act sued upon, constitutes a crime or not, the nature of the allegations in the plaint are only relevant and the allegations must be such that if those allegations are established an offence under that Chapter of the Penal Code, would be made out. Thus, where, upon the facts as stated in the plaint, the case against the defendant is of an act, merely wrongful or illegal, but not necessarily penal, so as to bring it within the provisions of the penal Code, the jurisdiction of the Small Causes Court is not at all excluded."
The jurisdiction of the Small Causes Court is excluded when the offence, as alleged, is of a penal nature. I have already found that the allegations in the plaint constitute offences of penal nature and has rightly been tried as a Money Suit. This conten tion of the learned Advocate for the petitioner is also without any substance whatsoever.
In the result, the Rule is discharged with costs.
K. B. A. Rule discharged.
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