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Second Appeal No: 952 of 1958, decided on 19th August 1960.

S. 27- Suit for refund of earnest money ‑Triable by Small Causes Court- Munsif, having no pecuniary jurisdiction to try suit as Small Cause suit, trying suit as ordinary civil suit‑Appeal against order of Munsif, held, competent.

Raja Sahib Meherban Idostan Sri Rajha Rao Venkata Kamara Mahipati Suryarao Bahadur Garu v. Puramsetti Venkatarao and another 194 I C 259 and Shamsuddin Pradhan v. Jasoda Kanta Sen and others (1954) 6 D L R 277 ref.

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---‑Judgment‑Court dealing with all material points and reversing judgment of Munsif‑Judgment proper‑Civil Procedure Code (V of 1908), O. XLI, r. 31.

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-----New point‑Party not challenging point of non- joinder of parties before lower Appellate Court‑Point cannot be taken in second appeal.

Azizul Islam for Appellant.

Abdul Hakim for Respondent.

This appeal is by the defendant and it arises out of a suit for recovery of advance money and price of stamps said to have been paid by the plaintiff to the defendant in pursuance of a contract for sale of land by the latter to the former. The total claim was paid at Rs. 575 including damages of Rs. 3.

Plaintiff's case, shortly put, is as follows.

2. Defendant and his two co‑sharers purchased 16 annas of the land mentioned in the plaint Schedule from the heirs and successors of Umesh De and Durgamani to whom the suit land originally belonged. The defendant filed a criminal case against the plaintiff and others on the 12th of May 1955, on the allegation that the plaintiff and others had plucked mangoes from the trees standing on the suit land. The Sub‑Divisional Officer on taking congnizance of the case sent the matter for enquiry by President, Union Board of Malkha Nagar. The said President, namely Madan Chakraborty, one Habibur Rahman and others, during the enquiry stage of the matter, effected a compromise between the plaintiff and defendant and in that compromise it was settled that the defendant and his co‑sharers would sell the disputed land to the plaintiff for Rs. 1,780 by executing and registering a kabala, a bainapatra was accordingly executed by the defendant and his two co‑sharers in favour of the plaintiff and a sum of Rs. 200 was mentioned in that bainapatra, which was not actually paid by the plaintiff to the defendant and Madan Gopal Chakraborty stood surety for the said sum of Rs. 200. It was agreed upon in the bainapatra that if the plaintiff would pay the entire consideration within a month from the date of the bainapatra, the defendant and his co‑sharers would execute and register the kabala and if the plaintiff did not pay the consideration money of the kabala, the said sum of Rs. 200 would be forfeited and again if the defendant and his co‑sharers would not execute the kabala and the plaintiff was ready to pay the consideration in the time stipulated, the defendant would pay Rs. 200 to the plaintiff. Some days after the bainapatra the defendant wanted Rs. 500 from the plaintiff and the plaintiff paid the defendant, a sum of Rs. 500 on the 17th of Sraban, 1361, B. S. corresponding to 2‑8‑54 in presence of Subodh De, President of .the Union Board, Abdur Rahman and Habibur Rahman Khan and also a sum of Rs. 45 for purchasing three stamps from the stamp vendor of Taltala Bazar, named Balaram. The three places of stamps were purchased by the defendant with the sum of Rs. 45 paid by the plaintiff and the said stamps were kept in deposit with the President, Union Board, for executing the kabala and the defendant also made over his title deed i. e., kabala in respect of the disputed land, to the plaintiff at the time he paid him Rs. 500 and the price of stamps. On a perusal of the kabala the plaintiff found that defendant and his co‑sharers did not, in fact, acquire 16 annas interest in the suit land as represented by them. So, the plaintiff did not accept the kabala and filed this suit for the refund of the advance money which he paid towards consideration of the kabala, including the price of the stamps and damages.

3. The defendant contested the suit. He admitted that there was a contract and a bainapatra for sale of the disputed land to the plaintiff as alleged by the plaintiff, but as the plaintiff could not pay the consideration money within 30 days from the date of bainapatra in terms of the same the contract fell through and got back the bainapatra from Madan Chakraborty. Plaintiff never paid him Rs. 500 as alleged by him. He purchased three stamps for Rs. 45 with his own money for his own purpose and he purcha ses lands jointly with his wife by a kabala written on those stamps from other persons. The defendant also raised the plea of non‑joinder of parties.

Upon these pleadings the following issues were framed :‑

(1) Is the suit bad for non‑joinder of parties

(2) Was the defendant paid any money on the basis of the alleged contract for sale If so, what amount

(3) Is the plaintiff entitled to get a decree for the consi deration money as alleged in the plaint If so, for what amount

(4) What relief, if any, is the plaintiff entitled to

The learned Munsif on a consideration of the evidence dis believed the plaintiff's story of payment of Rs. 500 and Rs. 45 to the defendant out of the consideration money of the kabala and as such he dismissed the suit. On appeal by the plaintiff, the learned Subordinate Judge allowed the appeal, set aside the judgment and decree of the learned Munsif and he decreed the suit for 545. Hence this appeal by the defendant.

4. Mr. Azizul Islam, learned Advocate, who has appeared on behalf of the defendant‑appellant, has urged the following points before me in this appeal.

(i) The judgment of the lower Appellate Court is not a proper judgment of reversal.

(ii) The appeal before the lower Appellate Court was incompe tent inasmuch as the suit was of the nature cognizable by a Court of Small Cause.

(iii) The Subordinate Judge ought to have held that the suit was bad for non‑joinder of parties.

5. I shall first take up point No. 2 for consideration. Mr. Islam has contended that the suit for refund of the earnest money being one cognizable by a Court of Small Cause the judgment and decree passed by the trial Court are not appealable and the remedy of the plaintiff‑respondent lay in filing a revisional application before this Court. There is no dispute about the fact that this suit for refund of earnest (advance) money was triable by a Small Cause Court. The learned Munsif, who tried this suit in his ordinary civil jurisdiction, had no pecuniary jurisdiction to try a suit of the nature of Small Cause exceeding the value of Rs. 300. The present suit was valued at Rs. 575. Although the suit was in the nature of Small Cause, the learned Munsif had no pecuniary jurisdiction to try this suit as a suit of Small Cause. He, therefore, tried the suit in his ordinary civil jurisdiction. Now, the question is whether an appeal is barred by the provisions of section 27 of the Provincial Small Cause Court Act against the judgment and decree of the learned Munsif. Mr. Islam has relied on the case of Shamsuddin Pradhan v. Tasoda Kanta Sen and others ((1954) 6 D L R 277) and has contended that although the learned Munsif, who was invested with Small Cause Court's power, tried the suit which was admit tedly of a Small Cause nature, in his ordinary jurisdiction, that could not alter the character of the suit and the suit will be subject to all incidents of a Small Cause Suit and consequently no appeal would lie from the decision of the Munsif. In the case referred to above, Mr. Amin Ahmed, J. has after reviewing several autho rities, held :

"The same judicial officer is invested with both the powers of an ordinary Civil Court and those of the Judge of Small Cause Court for the same locality. The suit being of a certain value it has to be filed before the Judge either in his ordinary file or in his Small Cause Court file and if he keeps it in one file instead of the other and adopts a procedure other than that prescribed for a Small Cause Court Suit, that by itself will not alter the character of the suit; for the mode of trial, does not change the character of the suit. Although the Judge was invested with the powers of the Judge of the Small Cause Court, he did not adopt the summary procedure of a Judge of the Small Cause Court and instead followed the procedure prescribed by the Code of Civil Procedure, recorded evidence at length and also wrote out a considered judgment. As the Judge had the powers of a Judge of the Small Cause Court he must have tried the suit as a Judge of the Small Cause Court even if the proce dure adopted by him is not one of Small Cause Court. Utmost that can be said that according to the letters of the provisions of law the Judge acted with irregularity but it cannot be said that such irregularity is a material irregularity or it is of such a nature as has caused failure of justice.

As the order passed by the trial Court was that of a Small Cause Court, his order is not appealable."

6. There is no dispute about this principle of law, but it is not at all applicable to the facts of the present case. This was a case in which the Munsif who tried a suit of the nature of Small Cause in his ordinary civil jurisdiction, was invested with the powers to try a suit of Small Cause up to the limit of the value of that suit. So, the suit was triable by him as a Small Cause Court Suit instead he adopted the ordinary procedure of the Civil Court to try the suit but that procedure did not alter the character of the suit as a suit of small cause. As such it was held that the order passed by the Munsif was that of a Small Cause Court and as such his order is not 'appealable.' In this case, however, as has been pointed out above, the Munsif, who tried the suit in question, was not invested with powers to try a suit of the nature of Small Cause exceeding, the value of Rs. 300 and as such he had jurisdiction to try the suit in the ordinary civil jurisdiction. That being the position, the order passed by him is appealable.

7. Mr. Islam has also cited an unreported case being Civil Revision Case No. 540 of 1956 of this Court decided by me on 19th December, 1958, in support of his above contention. I must, however, say that the facts of this case also are different from the facts of the present case under appeal. In that case the decision reported in 6 D L R 277 was followed and in that case also the Munsif, who tried the suit in the nature of Small Cause, was invested with powers to try a Small Cause Suit up to the value of Rs. 300 and the value of that suit was below Rs, 300 in case of Raja Sahib Meherban I dostan Sri Rajha Rao Venkata Kumara Mahipati Suryarao Bahadur Garu v. Puramsetti Venkatarao and another (194 I C 259) it was observed :‑

"Where, however, a suit is filed on the original side because, as here, the District Munsif has no jurisdiction to try it as a small cause suit, that suit cannot be considered to be a small cause suit. All that can be said is that the suit is of a small cause nature. There is however nothing in the Provincial Small Cause Courts Act or in the Civil P. C., which says that no first appeal lies in such cases. The Provincial Small Cause Courts Act applies only to Small Cause Suits, and although, section 102, Civil P. C., is a bar to a second appeal, there is nothing in that Act which prohibits a first appeal. An appeal did, therefore, lie in the Court below because the District Munsif had no juris diction to entertain the suit on the Small Cause Side."

8. This case is exactly on the point. In the case before us, the Munsif had no jurisdiction to try the suit as a Small Cause Suit as he was invested with powers to try a suit of Small Cause upto the value of Rs. 300. There is nothing on record to show that there was any other Munsif vested with powers to try a suit of Small Cause exceeding the value of Rs. 300. So, the Munsif had to try the suit in his ordinary civil jurisdiction. The first appeal against the decision of the Munsif was, therefore, competent.

9. As regards the first point that the judgment of the lower Appellate Court is not a proper judgment of reversal, Mr. Islam has submitted that lower Appellate Court did not consider some material facts in arriving at its conclusion which were considered by the trial Court. It is urged that the learned trial Court took into consideration the fact it was impossible for the plaintiff to make payment of the Rs. 500 and Rs. 45 on the 17th of Sraban, i.e., four days before the expiry of the date of bainapatra without any receipt in view of the criminal case pending between the parties' and that the trial Court had also taken into consideration the fact that it would be possible for the plaintiff to make payment of Rs. 500 on the 17th of Sraban, for the plaintiff did not make pay ment. of Rs. 200 as stipulated in the bainapatra, and that these facts were not taken into consideration by the tower Appellate Court in arriving at its conclusion that the plaintiffs, in fact, paid Rs. 500 and Rs. 45 to the defendant. I do not think that these are at all material facts in determining the question whether the plaintiff paid the amount in question to the defendant. It would appear from the pleadings of the parties and from the evidence that during the enquiring stage of the criminal case filed by the defendant against the plaintiff and others, a compromise was effected between the parties at the intervention of the enquiring officer, the President and others. The consideration of the compromise was that the defendant would sell the disputed land, for which the criminal case was going on, to the plaintiff for a sum of Rs. 1,780 and such stipulation was embodied in the bainaparra admittedly executed by the defendant and his co‑sharers in favour of the plaintiff. The learned Subordinate Judge as final Court of fact has accepted the direct evidence adduced by the plaintiff regarding the payment of the amount in question to the defendant. The observation of learned lower Appellate Court on the point is as follows :

"Plaintiff's case is that on 17th Sraban, 1361 B. S.; the plaintiff paid to defendant Rs. 500 out of consideration money and Rs. 45 for purchasing of stamps in presence of P. W. 2, Habibur Rahman P. U. B: Malkhanagar and Subodh Roy P. W. 2 and P. W. 3 (Habibur Rahman) says that plaintiff paid defendant Rs. 500 on 17th Sraban, in their presence. It is admitted by defendant that he was or had no ill‑feeling with P. W. 3 and P. W. 4."

10. It is further stated by P. W. 3 that in his presence the defendant purchased 3 stamps (Exh. A series) with Rs. 45 supplied by plaintiff. It is the case of the plaintiff that Rs. 500 was paid by defendant to his Behai, i.e., P. U. S. who deposited the same with P. W. 4 Subodh Roy on 17th Sraban, P. W. 4 admitted that Rs. 500 was deposited with him by P. U. B. In presence of plaintiff-defendant and Habibur Rahman (P. W. 3) and others and that it was taken back by P. U. B. after one month from him. But he (P. W. 4) does not know to what that amount relates. P. W. 2, as it appears, is responsible man of the locality. He is the Secretary of the Sub‑Divisional Congress Committee and one of the members of the Union Board and Minority Board. I find no reason why a person of responsibility and position like P. W. 2 would come to Law Court to speak falsehood supporting the case of the plaintiff and who had no personal interest in the result of the suit. So I believe, his statement and held that defendant received Rs. 500 from plaintiff on 17th Sraban, 1361 B. S. as alleged.

11. P. W. 3 supports the plaintiff as to the payment of Rs. 45 on 17th Sraban for purchase of stamps and defendant purchased stamps (Exh. A series) with the said amount. The defendant admitted that he purchased those stamps on 17th Sraban with his own money and he and his wife purchased lands with the said stamps subsequently vide Exh. B. These stamps were purchased on 2nd August, 1954 and those were utilised by the defendant on 12‑3‑56, i.e., more than 21 years after those were purchased. The defendant could not specifically mention any probable purchase, which he intended to make with the said stamps or in other words what was the urgency, which caused him to pur chase 3 stamps worth Rs. 45 on the 17th Sraban, 1361 B. S. He did not say that there was any talk of sale between him and any body before 17th Sraban which failed after 17th Sraban,1361 B. S. and that as such the stamps could not be utilised earlier than 12‑3‑56. It is practice, though not a general rule, that the intend ing purchasers ordinarily have their stamps purchased by the vendors in their names to avoid future troubles and difficulty but defendant made a departure from it. It is improbable that defendant would purchase stamp in his own name to be utilised by him and his wife in respect of some purchase likely to be made in future.

On a consideration of all I find that the plaintiff paid Rs. 500 and Rs. 45 to defendant on 17th Sraban, 1361 B. S. and the plaintiff is entitled to get back the same from the defen dant.

12. I have examined the evidence in this case and from the above it is clear that the learned Subordinate Judge correctly assessed the evidence adduced by the plaintiff regarding payment of the amount in question to the defendant and considered the material circumstances in support of the same. It cannot, there fore, be said that lower Appellate Court did not advert to the material facts, which were considered by the trial Court. I am, therefore, not prepared to hold that the judgment of the lower Appellate Court is not a proper judgment of reversal. In fact the learned lower Appellate Court touched all the material points and has come to its finding, of fact which this Court is not competent to disturb.

13. As regards the third point that the lower Appellate Court did not consider the question of defect of party, I may at once say that this question was not at all canvassed before it. It appears that the trial Court came to a finding on the evidence on record that the suit was not bad for non joinder of parties The defendant did not challenge this finding before the lower Appellate Court by filing any cross‑objection or cross‑appeal. So, it is too late to urge this point in second appeal. The contention of Mr. Islam on this point is, therefore, overruled.

In the result, the appeal is dismissed with costs.

K. M. A.

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