JUDGMENT Mears, C.J.
1. Chaube Moti Lal sued Chaube Bhan Dat to recover Rs. 80 on the ground that Chaube Bhan Dat had cut a nim 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 away. 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 Bajpai, J. on 21st April 1931, and the case of Raghubar Dayal v. Mulwa A.I.R. 1927 All. 288 was presented to him. Also his attention was called to the case of Deohi Rai v. Harakh NarainLal A.I.R. 1926 All. 760. Those were the only two cases before the learned Judge. We shall have, in a moment or two, to refer to a third. Now the case of Raghubar Dayal v. Mulwa A.I.R. 1927 All. 288 is extraordinarily like the matter that is now being debated in this revision. The head-note says that Article 35(ii), Schedule 2, 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 or right or as the result of a dispute is not necessarily a criminal offence.
2. Bajpai, J., would have had no hesitation in deciding this case of Chaube Bhan Dat's in favour of the plaintiff had it not been that there was the decision to be found also in Deoki Rai v. Harakh Narain A.I.R. 1927 All. 760 That case decided that the test as to whether the case would be heard by a 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 Boys, J., 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 have obviously got to see what is sued for, and that brings us to the plaint and there is nothing to go any further.
3. We can follow that as a decision and at the same time we can give effect to the case of Raghubar Dayal v. Mulwa A.I.R. 1927 All. 288 neither of which is 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 Dat [1928] 130 I.C. 481 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 Ch. 17, I.P.C. That case again is very similar to the one now under discussion. The case on the other Bide of the line is the one we have already referred to of Deohi Rai v. Harakh Narain Lal A.I.R. 1926 All. 760 because there the allegations in the plaint were that the defendants had forcibly cut and appropriated the tree which belonged to the plaintiff and that they had committed this act of cutting and taking away the tree after unlawfully conspiring together. There a criminal offence or offences were indicated. We think that no more definite rule can be laid down than is to be found in the case that we have cited and that the question whether a case is determinable by a Small Cause Court Judge must rest upon an examination of the plaint and a decision by the Judge as to whether or no the language of the plaint, on a reasonable construction, imports the commission of an offence under Ch. 17, I.P.C. We therefore dismiss this application with costs.