Authored By : Henry Thoby Princep, Trevelyan

Henry Thoby Princep and Trevelyan, JJ.

1. It is necessary in this application only to refer to oneof the grounds taken, which is that, because the Magistrate, in addition to asentence of 14 days imprisonment, directed the accused person, under Section31 of the Court Fees Act, to pay to the complainant the court-fee paid on hispetition of complaint to the Magistrate, the order is appealable. The learnedCounsel contends that inasmuch as the law provides that all such fees orderedto be paid may be recovered as if they were fines imposed by the Court,therefore this part of the sentence must be regarded as a fine, and, superaddedto the sentence of imprisonment, makes the order appealable. We do not acceptthis view of the law. The order under Section 31 of the Court Fees Act is nopart of the sentence so as to make it a sentence of fine within the terms ofSection 413*, Code of Criminal Procedure. The order is therefore notappealable. This application is refused.

* No appeal in petty cases.

[Section 413 : Notwithstanding anything hereinbeforecontained, there shall be no appeal by a convicted person in cases in which aCourt of Session or the District Magistrate or other Magistrate of the firstclass passes a sentence of imprisonment not exceeding one month only, or offine not exceeding fifty rupees only, or of whipping only.

Explanation.--There is no appeal from a sentence ofimprisonment passed by such Court or Magistrate in default of payment of finewhen no substantive sentence of imprisonment has been passed.]

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Madan Mandul vs.Haran Ghose (15.06.1893 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 29.06.1893

Appellants: Watson

Vs.

Respondent: Crisp

Honble Judges/Coram:

William Comer Petheram, C.J. and S.C. Ghose, J.

Subject: Civil

Catch Words

Mentioned IN

Case Note:

Jurisdiction - Civil Procedure Code (Act XIV of 1882),Section 16(e), proviso--Recorder of Rangoon, jurisdiction of.

JUDGMENT

William Comer Petheram, C.J.

1. This is an appeal from a judgment of the Recorder ofRangoon, and for the purpose of what I have to say, the simplest way is for meto read the plaint, which is a very short one. The plaint states that "theplaintiff was, on the 27th day of March 1891, in possession of a piece of landknown as Extra Suburban allotment, 3rd class, No. 455, Kokine Circle, HmawbiTownship, Hanthawaddy district.

2. The defendant, on the said 27th day of March 1891, andwhile the plaintiff was in possession as aforesaid, broke into and entered uponthe said land, accompanied by certain servants, and cut and took and carriedaway a quantity of grass growing upon the said land and the plaintiff claims,first, Rs. 500 damages for the wrong complained of, and for the costs of thesuit; and 2nd, an injunction restraining the defendant from any repetition ofthe acts referred to.

2. Upon the plaint being filed the defendant took variousobjections. The first objection which he took was that the land was outside thelimits of the Rangoon Municipality, and that therefore the Recorder of Rangoonhad no jurisdiction to try the suit; and he also took objections on the merits.

3. The learned Recorder, who tried the cause, came to theconclusion that he had authority to try the cause by virtue of the proviso toSection 16 of the Code of Civil Procedure, and that the plaintiff was right onthe merits, and he gave the plaintiff a decree for Rs. 500 damages, that beingthe amount which the plaintiff himself claimed, and he gave the plaintiff aninjunction. From that decree the defendant has appealed, and both points havebeen argued before us.

4. We think that the Recorder of Rangoon had no jurisdictionto try the suit at all, and that being the case, it would be improper for us toexpress any opinion as to the merits, inasmuch as we have no more jurisdictionto do so than the Recorder had.

5. It is admitted, in fact it is part of the case of bothparties, that the land in respect of which the trespass mentioned in the plaintis said to have been committed lies outside the limits of the Municipality ofRangoon and outside the civil jurisdiction of the Recorder of Rangoon; and ithas not been contended, and it cannot be contended, that the Recorder had anyjurisdiction to try this suit unless it comes within the proviso upon which herelies.

6. The proviso is a proviso to Section 16, and the portionof the section which applies to this suit is as follows: "Subject to thepecuniary or other limitations prescribed by any law, suits for thedetermination of any right to or interest in Immovable property or forcompensation for wrong to Immovable property, shall be instituted in the Courtwithin the local limits of whose jurisdiction the property is situate."The plaint which I have just read is a plaint for compensation for wrong toImmovable property, with an added claim for an injunction to restrain thedefendant from continuing the wrong, and it is clear that unless it is withinthe proviso it is within the intention of the section, which says that such asuit, that is to say, a suit for compensation for wrong done to Immovableproperty, shall be instituted in the Court within the local limits of whosejurisdiction the property is situate. The proviso is, "provided that suitsto obtain relief respecting, or compensation for wrong to, Immovable propertyheld by or on behalf of the defendant may, when the relief sought can beentirely obtained through his personal obedience, be instituted either in the Courtwithin the local limits of whose jurisdiction the property is situate, orwithin the local limits of whose jurisdiction he actually and voluntarilyresides, or carries on business, or personally works for gain." Now, it isnot disputed that the defendant does reside within the local limits of theRecorders Court, and the view which the learned Recorder has taken is that,that being so, he has jurisdiction to try this particular suit against thisparticular defendant.

7. Let us look at the proviso and the plaint. The plaint, asI said just now, is for damages for a trespass, said to have been committed onthe 28th March 1891, upon land which is said, in the plaint, to be in thepossession of the plaintiff, and the question is, can it come within the meaningof the proviso The proviso relates to Immovable property held by or on behalfof the defendant, and it cannot be contended, it seems to us, that when theplaintiff, for the purpose of obtaining damages for the purpose of founding hisaction, alleges that the property is in his possession and has been trespassedupon by the defendant, he is at liberty to say, for the purpose of bringing itwithin this proviso, that it is held by the defendant. Therefore we think thatit cannot come within the proviso, it being land not held by the defendant,according to the plaintiffs own case.

8. But in addition to that we do not think that a claim fordamage to land can be said to be a claim which can be entirely obtained throughthe personal obedience of the defendant, even though it may be joined with aclaim for an injunction.

9. For these reasons we think that this was not within theproviso of Section 16, and that the Recorder of Rangoon had no jurisdiction toentertain this suit, and that as this objection was taken at the trial, thisappeal must be allowed and the suit dismissed with costs in both Courts.

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Watson vs. Crisp (29.06.1893 - CALHC)