- (1.) THIS revision is directed by the defendant against the order passed by the First Additional District Judge, Pondicherry, in A. S. No. 10 of 1984 on his file. It is seen that the respondent-plaintiff filed a suit against the revision petitioner for recovery of a sum of Rs. 1 ,060 with subsequent interest and costs. The allegations in the plaint are that the respondent-plaintiff has sold casuarina trees in Tuttipetvely, Villianur commune, Pondicherry, for Rs. 3 ,750 about six months prior to the filing of the suit, that the defendant has paid a sum of Rs. 2,750 towards the said sale consideration and that the balance is due and since in spite of repeated demands he did not pay the amount, the suit was filed.
(2.) THE said suit was resisted by the revision petitioner herein who would deny the allegation that the plaintiff sold casuarina trees to him. He further stated that it was not sold for Rs. 3 ,75 0 as alleged, that the respondent has sold the casurina seedlings raised in an extent of 2 kanies and 20 kuzhies in R. S. No. 51/6 and 50 kuzhies in R. S. No. 52/2, that he did not sell the casurina trees and that only the seedlings alone were sold for a sum of Rs. 2,790. It is also stated that the defendant did not cut and remove the seedlings as he wanted further time since he could not arrange for transportation and expected rain, that he also paid the entire consideration of Rs. 2,790 and that there is no amount due as alleged by the plaintiff. It is further alleged that the plaintiff sold the same to a third party by name Jayaraman after the defendant issued a reply notice. Hence, he prayed for dismissal of the suit. On the side of the plaintiff, P. Ws. l and 2 were examined and Exs. A-l to A-4 were marked. The defendant examined himself as D. W. I and also two other witnesses and Ex. B-1 was marked. The learned trial Munsif dismissed the suit holding that the plaintiff has not established his case by any tangible evidence. Aggrieved by the same, and appeal was filed by the plaintiff and the learned appellate Judge allowed the appeal with costs. As against that judgment, the present revision is filed. Learned counsel for the revision petitioner, mr. Gopalakrishnan, only submitted that since the suit claim is a small amount of Rs. 1,060 the appeal filed by the plaintiff is clearly barred under Section 96-A, C. P. C. , as no question of law is involved. Further nowhere in the judgment even the appellate Court has mentioned that any question of law was raised and that the same was considered and as such the remedy of the respondent-plaintiff is to file a revision. In support of his contention, learned counsel for the revision petitioner invited my attention to the decision reported in Joseph thompson v Nallathambi Nadar, (1980)2 M. L. J. 389 where, in a similar circumstance, it was held that the suit for recovery of money was of the nature cognizable by a Court of Small Causes, though the suit, if it had been instituted as a small cause suit, would be beyond the pecuniary jurisdiction of the District Munsif sitting on the small cause side and in view of Section 96 (4), C. P. C. which deals with first appeals and is corresponding to the old section 586, C. P. C. in relation to second appeals, the lower court has no jurisdiction to go into the evidence and the question of facts as in a regular first appeal and this Court came to the conclusion that the plaintiff is entitled to recover the suit amount and as such the revision was allowed, the judgment and decree were set aside and the appeal was remanded to the lower court for the appeal memo being returned to the respondent-plaintiff for presentation as a Civil revision before proper Court. On the other hand, learned counsel for the respondent-plaintiff drew my attention to a decision reported in Indian Bank v. Ramalinga Guruk-kal, 1982 T. L. N. J. 186: (1983)1 M. L. J. 186. That was a case which arose on a promissory note and in the said proceedings also, no objection regarding the incompetency of the appeal was raised on the score that it involved a question of fact and it was held in that case that the appeal did raise a question of law and was rightly entertained under Section 96 (4), C. P. C. In the instant case, it being a question of jurisdiction no question of law was raised before the appellate Court even during arguments and the appellate Court also never referred to any question of law in disposing of the appeal. Hence, this decision is not at all helpful. Even before this Court, when the learned counsel for the respondent was asked as to what question of law arises in the appeal, learned counsel only submitted that the burden of proving the claim is shifted to the plaintiff, while it is for the defendant to prove that the plaintiff has sold the casurina trees to a third party by name Jayaraman. I do not find any merit in the said contention. The defendant has specifically denied in the written statement that the plaintiff sold the casurina trees to him. The mere fact that the Court below has given some reason to hold that the plaintiff has not proved that he did not sell it to a third party by name Jayaraman, itself would not amount to a question of law and that is fact which has to be decided on the evidence. On that score, the appeal is not maintainable. Since I have taken a view that the appeal is not maintainable, I do not propose to express any opinion on merits. I am entirely in agreement with the view expressed by varadara-jan, J. , as he then was, in Joseph Thompson v. Nalla Thambi, (1980)2 m. L. J. 389 and it is squarely applicable to the facts of the present case and the decision in Indian Bank v. Ramalinga Grukkal ,198 2 T. L. N. J. 186: (1983)1 M. L. J. 186 is not at all applicable to this case as no question of law was raised at any stage of the appeal or even now. Hence, the revision is allowed, the judgment and decree of the Court below are set aside and the matter is remanded to the Court below and it is directed to return the appealmemo to the respondent for presenting the same as revision before the said Court and the Court below is directed to take it as a revision and dispose it of according to law on merits. The respondent is granted four weeks time from the date of return of the appeal memo for presenting it as a revision. There will be no order as to costs in this revision.
(3.) THIS petition having been set down this day for being mentioned in the presence of the said Advocates the Court made the following order: The matter is listed to-day for being mentioned. While disposing of the above revision, this Court directed the Court below to return the appeal memo to the respondent for presenting the same as revision before the said court and on presenting the same as revision, the court below was further directed to dispose of the same on merits. Now it is brought to the notice of this Court that this court alone has got jurisdiction to entertain the said appeal memo as revision and dispose of the same. Hence, the order dated 5. 12. 1988 is modified to the extent that the respondent shall present the appeal memo as Revision before this Court for disposal. In other aspects the order dated 5. 12. 1988 will hold good.;