Decided on December 20,1969



- (1.) THIS is a reference under Order 46, rule 7 of the Civil Procedure Code by the District Judge.
(2.) THE facts which have given rise to this reference may shortly be stated first. Shyamsunder Agrawal filed a suit for the recovery of Rs. 599. 79 against ramnarayan Agrawal on the allegation that Ramnarayan Agrawal was in possession of a part of the house which was the joint property of both the parties and he was liable to pay him compensation for its use and occupation. The plaintiff was himself in possession of another portion of the house, for which he was also paying compensation for use and occupation. After deducting the amount due to the defendant from the plaintiff, the plaintiff claimed Rs. 587. 79 from the defendant and Rs. 12 as costs of notice. This suit was filed in the court of the First Additional District Judge exercising the powers of a Small cause Court. An objection was taken before him that the case was not cognizable by the Court of Small Causes. The learned Additional District Judge rejected this objection by order dated 25th March 1968 and intended to proceed with the suit. Thereupon, an application under Order 46, rule 7, Civil Procedure Code, was filed before the District Judge on 4th April 1968 for making a reference to the High Court. The learned District Judge, by his order dated 28th June 1968, has come to the conclusion that the decision of the Additional district Judge was correct; but in view of the case reported in The Cantonment board Jubbulpore v. Phulchand (A I R 1932 Nag 70.) and other cases came to the conclusion that even though he had found the order of the Additional District Judge to be correct, yet he was bound to make a reference to the High Court in view of the language of Order 46, rule 7 of the Civil Procedure Code. He has therefore referred the matter to this Court.
(3.) AFTER hearing learned counsel for both the sides, I am of opinion that the reference was incompetent in the circumstances of this case and also that the Small Cause Court had jurisdiction to entertain the suit, and the orders both of the Additional District Judge and the opinion of the District Judge on this matter are also correct I shall now give the reasons for coming to this conclusion.;

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