ORDER : The plaintiff sued before the Small Cause Court for recovery of damages from defendant no. 1, on the allegation that he forcibly removed the crops grown by the plaintiff for which the plaintiff lodged F.I.R. in the Bolgarh P. S. under Section 379, I. P. C. Admittedly, defendant no. 2 is the landlord under whom plaintiff claims tenancy. The case of defendant no. 1 is that he is the tenant in respect of the disputed land and grew the crop and plaintiff has been falsely set up by defendant no. 2. The learned Small Causes Court Judge decreed the plaintiff's suit. Against that decree this civil revision has been filed under Section 25 of the Provincial Small Cause Courts Act. 2. Mr. Ram on behalf of the petitioner raised a number of contentions. It is not necessary to examine all. It would be sufficient for the disposal of this civil revision to examine his contention that the Small Cause Court had no jurisdiction to try the suit as it was barred under Art. 35 (ii) of Schedule II to the Provincial Small Cause Courts Act. Article 35 (ii) lays down that a suit for compensation for an act which would be an offence punishable under Chap. XVII of the Indian Penal Code is excluded from the jurisdiction of the Small Cause Court. The question for consideration is whether in the plaint a case was made out in respect of an offence under Section 379, I. P. C. which occurs in Chapter XVII. Paragraph 5 of the plaint runs : "That in the year 1965 defendant No. 1 being instigated by his party men illegally entered the suit lands and forcibly removed the crops grown by the plaintiff for which the plaintiff lodged F. I. R. in Bolgarh P. S. under Section 379 I. P. C." All the elements of Section 379, I. P. C. have been fulfilled by the averments in this paragraph. An offence of theft is committed when a person removes moveable property of another person without his consent dishonestly. An act is said to have been done dishonestly if it is done with a view to cause wrongful loss to the other person or wrongful gain to oneself. An offence of theft is committed when a person removes moveable property of another person without his consent dishonestly. An act is said to have been done dishonestly if it is done with a view to cause wrongful loss to the other person or wrongful gain to oneself. The averments made in the plaint are that defendant No. 1 cut and removed paddy without the consent of the plaintiff with a view to make wrongful gain to himself and wrongful loss to the plaintiff. 3. Mr. Patnaik however contended that the F. I. R. lodged ultimately fizzled out and no charge-sheet was submitted and as such the averment would not make out an offence under Section 379 I. P. C. The contention has no force. The ultimate result in which a criminal proceeding terminated is no test as to whether an averment of theft was made out or not. In order to get jurisdiction, a Court has to look into the averments in the plaint and would not be guided by the ultimate consequence of the complaint made, in respect of which there was an averment. So far as defendant No. 1 is concerned, it was always open to him to assert that the removal was not dishonest and as such he committed no offence of theft. The fact that the defendant is either acquitted or is likely to be acquitted is no ground to construe the plaint differently. In other words, the conferment of jurisdiction must be determined with reference to the pleadings in the plaint. Judged in the context of the aforesaid analysis, there is no escape from the conclusion that the suit was not cognizable by the Court of Small Causes. 4. It is however to be noticed that this objection regarding absence of jurisdiction was not taken in the court below, but as the non-existence of jurisdiction is ex facie apparent from the plaint itself, the absence of objection at the earliest stage need not stand in the way of this Court upholding that objection. 5. In the result, the civil revision is allowed, the decree of the Small Cause Court Judge is set aside and the plaint be returned to be filed before the proper court. As no objection regarding jurisdiction was taken at the earliest stage parties will bear their own costs throughout.