JUDGMENT

1. Chaube Moti Lal sued Chaube Bhan Datt to recover Rs. 80 on the ground that Chaube Bhan Ditt had cut a him tree belonging to the plaintiff which was growing upon the plaintiff's ground and had done so without the knowledge of the plaintiff and without any right and had taken it way. Those are ambiguous phrases which might be deemed to cover the commission of a criminal offence but might very well be nothing more than an assertion that the defendant had committed a civil wrong. The civil revision came up before Mr. Justice Bajpai on the 21st of April, 1931, and the case of Raghubar Dayal and Others Vs. Mulwa and Others, AIR 1927 All 288 was presented to him. Also his attention was called to the case of Deoki Rai v. Harakh Narain Lal 97 Ind. Cas.129 : 49 All. 85 : AIR 1920 All. 760 : 24 A.L.J. 1017 which is to be found reported in the same Volume at "page 85. Those were the only two cases before the learned Judge. We shall bare, in a moment or two, to refer to a third. Now the sase of Raghubar Dayal and Others Vs. Mulwa and Others, AIR 1927 All 288 is extraordinarily like the matter that is now being debated in this revision. The head-note says that "Article 35(ii) of the Second Schedule to the Small Cause Courts Act applies only to those acts which, by the circumstances of the case, are clearly alleged or shown to be punishable by the Penal Code." Now there is no clear allegation in this plaint that the offence was one which came under the Penal Code. The head-note continues, "Merely removing from or cutting trees under a bona fide claim of right or as the result of a dispute is not necessarily a criminal offence." Mr. Justice Bajpai would have had no hesitation in deciding this case of Chaube Bhan Datt's in favour of the plaintiff had it not been that there was the decision to be found also in Deoki Bai v. Harakh Narain Lal 97 Ind. Cas.129 : 49 All. 85 : AIR 1920 All. 760 : 24 A.L.J. 1017. That case decided that the test as to whether the case could be heard by Small Cause Court or not had to be settled by an examination of the plaint, and if upon a fair and ordinary construction of the plaint the matter appeared to be a criminal one rather than a civil matter then the case was not entertainable by the Small Cause Court. A number of authorities were referred to, and Mr. Justice Boys dealt with the matter thus:

There can be no question but that the jurisdiction of the court has to be determined, in the first place, by a reference to the plaint. That which is exempted from the jurisdiction of the Small Cause Court is "a suit" of a certain nature. To determine of what nature the suit is, we Lave obviously got to see what is sued for, and that brings us to the plaint and there is nothing to go any further.

2. We can follow that as a decision and at the same time we can give effect to the case of Raghubar Dayal and Others Vs. Mulwa and Others, AIR 1927 All 288 neither of which are in conflict with the other. In our opinion, having examined the plaint we cannot say that on a fair reading of it, discloses a criminal offence. It was open to the immediate defence of the defendant, which in fact we know later he put up, that he had a perfect right to do what he did. There has been a later case, Bandhu Pandey v, Gauri Datt Pandey 130 Ind. Cas. 481 : (1930) A.L.J. 1247 : Ind. Rule (1931) All. 273. There the ratio of the decision was that on an examination of the "plaint there was nothing in it to indicate that the defendant was acting with such knowledge or intention as would constitute an offence under Chap. XVII, of the Indian Penal Code. That case again is very similar to the one now under discussion. The case on the other side of the line is the one we have already referred to of Deoki Bai v. Harakh Narain Lal 97 Ind. Cas.129 : 49 All. 85 : AIR 1920 All. 760 : 24 A.L.J. 1017 because there the allegations in the plaint were that the defendants had forcibly out and appropriated the tree which belonged to the plaintiff and tha