Narain Das And Anr. Versus Kashi Prasad
Allahabad High Court
CIVIL REVISION, ---- Judgment Date: Oct 31, 1934
Allahabad High Court
(31 Oct, 1934)
Narain Das And Anr. Versus Kashi Prasad
1. This is an application in Civil Revision against an order of a Small Cause Court returning a plaint to the plaintiff for presentation to the proper Court. The lower Court held that the plaint should be heard on the regular side. The plaint set out that the defendant "without right and without consent by deceit unlawfully reaped the crop" of the plaintiff. The lower Court is not correct in saying that the word "forcibly" was used, but that does not appear to affect the matter. The lower Court held that these allegations would constitute an offence under Chap. 17, Penal Code, and therefore the suit was excluded from Small Cause Court jurisdiction by article 35(2), small cause courts act. Learned Counsel argued on the strength of two rulings : Bandhu Pandey v. Gauri Datt Pandey (1930) I.C. 481 and Bhan Dutt v. Moti Lal 1932 All 472, that the words in the plaint would not constitute an offence under Chap. 17,. Penal Code, and that the Small Cause Court had jurisdiction. The first of those cases, decided by a Bench of which I was a member, related to taking the fruit of dak trees. These trees are jungle trees and a person taking, the fruit from these trees would not necessarily know that the trees belonged to some one. The second ruling relates to the cutting of a nim tree. Again we have a tree which is selfsown.
2. In the present case the allegation is in regard to crops. Now, crops are not naturally sown and any one seeing the crop must be well aware that some human being must have cultivated that crop. The allegation therefore that a crop was taken without any right by deceit implies that the person taking the crop knew that the crop belonged to someone else. Learned Counsel argued that in the definition of "theft" in section 378, penal code, the word "dishonestly" is used and he argues that his client had not used the word "dishonestly" in the plaint. "Dishonestly" is defined in section 24, penal code, as doing anything with the intention of causing wrongful gain to one person or wrongful loss to another, and in Section 23 "wrongful" gain is defined as gain by unlawful means of property to which the person gaining is not legally entitled, and "wrongful loss" is similarly defined. The allegation of the plaint is that the crop belonged to the plaintiff and that the defendant by deceit reaped it. Those allegations involve that the defendant intended to gain unlawfully by taking possession of the crop and to cause loss unlawfully to the plaintiff by doing so. Therefore in accordance with the definitions in sections 23 and 24, penal code, the defendant intended to act dishonestly. It appears to me therefore that the decision of the lower Court was correct and that the facts alleged did amount to an offence defined by section 378, penal code, i.e., theft, an offence which comes under Chap. 17. The Small Cause Court therefore did not have jurisdiction to try this suit. Learned Counsel also objected to the order of the lower Court that the costs hitherto incurred by the defendant should be paid by the plaintiff. He argued that the entire amount of the pleader's fee should not appear in the decree. The fee amounted to Rs. 20-12-0. I do not think this amount was excessive.
3. The application in revision is therefore dismissed with costs.