D.P.DESAI - (1.)On April 6 1973 a suit for recovery of Rs. 320.00 paid by the plaintiffs to the defendant Nagar Panchayat on account of various taxes came to be filed in the Court of the learned Civil Judge (Senior Division) at Nadiad. At that time the learned Civil Judge Mr. N.D. Gehani was invested with the jurisdiction of a Court of Small Causes for the trial of suits congnizable by such Court upto the extent of Rs. 800.00 under sec. 28 of the Bombay Civil Courts Act. This is clear from the Yearly Gradation list as on July 1 1972 and July 1 1973 This suit was originally instituted as a regular Civil Suit and came to be transferred to the file of the learned Joint Civil Judge (Junior Division) Nadiad. Thereafter on December 2Z 1974 one Mr. J. K. Thoria Civil Judge (Junior Division) Nadiad framed issues in this suit; and it is admitted on both hands that Mr. Thoria was not invested with the jurisdiction of a Court of Small Causes under sec. 28 of the aforesaid Act. On March 18 1976 plaintiffs evidence was recorded by Mr. C. T. Parikh who was invested with the aforesaid powers to the extent of Rs. 400.00 as can be seen from the Gradation list as on July 1 1975 and July 1 1976 Mr. Parikh tried the suit; and by his judgment and decree dated April 13 1976 dismissed the same. Against this decree of dismissal an appeal was preferred by the original plaintiffs being Regular Civil Appeal No. 88 of 1976 in the District Court at Nadiad. The learned Assistant Judge who heard this appeal allowed it: and gave a decree to the plainiiffs for Rs. 256-87 Ps. with running interest. This decree was given on March 16 1977 It is against this decree that the original defendant has come to this Court in revision.
(2.)The only contention urged on behalf of the defendant-petitioner goes to the root of the matter; and it is this. The suit being of the nature of a suit cognizable by a Court of Small Causes the decree of dismissal of the suit passed by Mr. Parikh Joint Civil Judge ( Junior Division ) Nadiad became final under sec. 27 of the Provincial 3mall Cause Courts Act 1887 (hereafter referred to as the Act ) and no appeal lay against that decree to the District Court. Therefore runs the argument the District Court was not competent to hear the appeal; and the decree passed in appeal is without jurisdiction. As against this contention the contention on behalf of the plaintiffs was three fold Firstly it was urged that the suit was not of the nature of a suit cognizable by a Court of a Small Causes. Secondly assuming that it was cognizable by a Court of Small Causes no objection to jurisdiction of the appellate Court having been taken this Court should not interfere in revision; and lastly the suit having been tried as an ordinary suit and a decree passed the provisions of sec. 27 of the Act are not applicable; and the appeal was competent.
(3.)So far as the first contention on behalf of the plaintiff is concerned reliance was placed on clause (j) of Article (35) of the Second Schedule to the Act which specifies suits excepted from the cognizance of the Court of Small Causes. This clause excludes a suit for compensation for illegal improper or excessive distress attachment or search or for trespass committed in or damage caused by the illegal or improper execution of any distress search or legal process. Now the present suit is not a suit for compensation at all. It is for refund of taxes which the plaintiffs had to pay on account of an illegal posture adopted by the defendant Panchayat. No question of compensation or illegal improper or excessive distress attachment or search as contemplated by clause (j) of Article (35) of the Second Schedule to the Act would arise in this suit it being a suit for refund of taxes was cognizable by a Court of Small Causes