Arobinda Maity vs Shrimati Krishna Basak

Sahidullah Munshi, J.—The petitioner has filed an affidavit of service in compliance with the order dated July 26, 2013. It is stated in Paragraph 3 of the affidavit-of-service that the postal article was properly addressed, prepaid and sent to the opposite party under registered post with acknowledgment due on 11th October, 2012, but no acknowledgment has yet been received back. In such situation, I draw a presumption as per the provisions of Order 5, Rule 9, proviso to Sub-rule 5 that the addressee is properly served. This revisional application arises out of Order No. 30 dated February 16, 2012 passed by the learned Civil Judge (Senior Division), First Court at Midnapore, District- Paschim Medinipur, in Money Suit No. 63 of 2008.

The defendant/petitioner has challenged the impugned Order by filing an application in the Court below stating, inter alia, that the suit being valued at Rs. 45,000/- (Rupees forty five thousand) only, ought to have been filed before the learned Civil Judge (Junior Division) taking into consideration of the provisions of Section 15 of the CPC which speaks as follows:

Section 14 of the CPC - Court in which suits to be instituted - every suit shall be instituted in the Court of the lowest grade competent to try it.

According to the petitioner, the suit value being Rs. 45,000/- (Rupees forty five thousand) it ought to have been filed in the Court of the learned Civil Judge (Junior Division) having appropriate jurisdiction. He further submits that instead of registering the suit, the Court below ought to have returned the plaint to the plaintiff for filing it in the Court of the learned Civil Judge (Junior Division).

The petitioner''s main contention is that, according to Section 15 of the Code of Civil Procedure, the suit has to be instituted in the Court of the lowest grade competent to try the suit. The petitioner contends that as per provisions of Section 19 of the Bengal, Agra and Assam Civil Courts Act, 1887 and the subsequent amendments thereto, the suit value being Rs. 45,000/- as shown by the plaintiff in the plaint, does not permit the learned Judge of Senior Division to entertain the suit.

It is submitted by the learned Advocate that plaintiff has not filed objection to the said application filed by the defendant in the Court below pointing out that according to the aforesaid provisions and the valuation shown by the plaintiff, the suit was not maintainable before the learned Judge (Senior Division).

I have gone through the Order impugned and materials on record. The learned Judge has held that on a careful perusal of the provisions of Sub-Section (1) of Section 19, he is satisfied that notwithstanding the provisions of Section 15 of the Code of Civil Procedure, a Civil Judge (Senior Division) can entertain the suit of the given suit value. The learned Judge has also pointed out that inasmuch as there was nothing to show on record from any notification that any Civil Judge (Junior Division) has been assigned with the special power as envisaged under Sub-Section (2) of Section 19 of the Bengal, Agra and Assam Civil Courts Act, 1887, it cannot be contended that suit of the given valuation is to be heard by the Civil Judge (Junior Division).

The learned Advocate submits that inasmuch as CPC u/s 15 describes that suit has to be instituted in the Court of the lowest grade, considering the value of the present suit, the learned Judge ought to have returned the plaint to the plaintiff for filing the same to the Court of Civil Judge (Junior Division) competent to try the suit.

Learned Advocate for the petitioner has relied upon a judgment in the case of Mohini Mohan Das and Others Vs. Kunjabehari Das and Others, . The said judgment was delivered by a Division Bench of this Court. In the said case, question arose whether over-valued suit instituted in Court of higher grade could be returned by the Court of such higher grade to the Court of Lower grade in terms of Section 15 of the Code of Civil Procedure. The suit from which the above decision of the Division Bench arose, was instituted in the Court of the subordinate Judge and in the said suit, an issue as to the proper valuation thereof, was raised, but was not heard as a preliminary issue. On the date of hearing, the issue as to the valuation was taken up first and of finding that the suit had been over-valued, ought to have been instituted in the Court of the learned Munsif, the learned subordinate Judge returned the plaint for presentation to the proper Court. There was an appeal against the Order passed by the learned subordinate Judge returning the plaint under the provisions of Order 7 Rule 10 of the Code of Civil Procedure. Learned District Judge, on an appeal from the said Order, while hearing the appeal, affirmed the decision of the subordinate Judge who directed that the trial in the Munsif''s Court should begin from the stage the suit had reached in the subordinate Judge''s Court. This latter portion of the Order was, however, deleted by the District Judge purporting to act u/s 151 of the Code of Civil Procedure.

The above referred judgment delivered by the Division Bench, therefore, considered the question relating to return of plaint on the ground of overvaluation. The said Division Bench held that there was no improper exercise of jurisdiction or discretion either by the subordinate Judge in returning the plaint or by the District Judge in affirming the same which would entitle the High Court to interfere u/s 115 of the Code of Civil Procedure. (Emphasis supplied to the underlined position)

While delivering the above referred decision, the Division Bench had also occasion to consider a judgment of Allahabad High Court reported in ILR 7, All 230 (1884) and ILR 17, Cal 155 (1889). The said Division Bench has deduced from those judgments that Section 15 of the CPC lays down a rule of procedure and not of jurisdiction and it does not divest any Court of jurisdiction which it otherwise possesses under the statute constituting such Courts. Their Lordships took note of the word ''shall'' in Section 15 of the CPC and which was held to be imperative on the suitor. The suitor shall be obliged to bring the suit in the Court of the lowest grade competent to try it. The object of the legislature is that the Court of the higher grade shall not be overcrowded with suits.

By relying upon the said judgment, the learned Advocate for the petitioner drew the attention of the Court that according to the ratio laid down in the said judgment, the learned Civil Judge (Senior Division) ought to have returned the plaint before the learned Civil Judge (Junior Division) and by not doing so he has exercised a jurisdiction which is not vested with him under the law.

On a detailed perusal of the above referred Division Bench judgment, it appears to me that the case at hand is to some extent different from the one which has been referred to here. In the suit from which the above decision (Mohini Mohan Das v. Kunja Behari Das and Ors. (supra) arose, the learned Judge, before whom over-valued suit was filed, was pleased to return the plaint under the provisions of Order 7 Rule 10 and this Order was challenged in an appeal before the District Judge who affirmed the Order of the learned subordinate Judge passing an Order of return of plaint.

The Appeal Court refused to interfere with the Order holding, inter alia, that the subordinate Judge had a discretion either to retain the suit in his Court or to return it to the Court of lowest grade competent to try the suit and this view of the District Judge deciding the appeal was affirmed by the above referred

Division Bench (Mohini Mohan Das and others Versus Kunja Behari Das and others (supra).

However, after the hearing was concluded, it came to notice that there is another judgment of this Court passed in a similar circumstance which arose in the case of Monirampore Cultural Association Vs. Monirampore Junior High School and Others, . In the said case, a Division Bench of this Court held that "even though u/s 19 of the Bengal, Agra, Assam Civil Courts Act, 1887, the jurisdiction of a Munsif (now Civil Judge, Junior Division) extends to all original suits of which the value does not exceed Rs. 7,500/- (Rupees Seven Thousand Five Hundred) the jurisdiction of the District Judge or the subordinate Judge (now Civil Judge, Senior Division) in respect of such suits is not ousted, even though in accordance with Section 15 of the Code of Civil Procedure, such suits are required to be instituted in the Court of the Munsif".

In view of the ratio decided in the aforesaid two Division Bench judgments, I hold that there is no wrong committed by the learned Judge in rejecting the defendant''s application in substance praying return of the plaint.

Considering the ratio decided in the aforesaid two Division Bench Judgments, I am of the considered view that it is a discretion for the learned Judge whether he will pass an Order of return for an over-valued plaint or retain the same for trial. Such discretion, when exercised by the learned Judge concerned the same cannot be interfered with, because there is no error of jurisdiction committed by the learned Judge refusing to return the plaint under the provisions of Order 7 Rule 10 of the Code of Civil Procedure.

In the above referred case, Monirampore (supra) Division Bench of this Court held that Section 15 of the CPC requiring every suit to be instituted in the Court of the lowest grade competent to try it, is a rule of procedure only and not of jurisdiction and if a higher Court has otherwise jurisdiction in respect of suit under the provisions of a relevant statute constituting such Courts, if retains and is not deprived of such jurisdiction in respect of the suit even though u/s 15 of the Code, the suit is to be instituted in a lower Court. The Hon''ble Court further held that even though u/s 19 of the Bengal, Agra, Assam Civil Courts Act, 1887, the jurisdiction of a Munsif extends to all original suits, the value whereof does not exceed Rs. 7,500/- (Seven Thousand Five Hundred), the jurisdiction of the District Judge or the Assistant District Judge in respect of such suits is not ousted even if such suits are required to be filed in the Court of the Munsif concerned u/s 15 of the Code of Civil Procedure.

On a proper consideration of the above referred two Division Bench judgments, I have no doubts in my mind that there is no infirmity in the Order passed by the learned Court below in exercise of his discretion to refuse to return the plaint on the prayer as made by the defendant.

I, accordingly, affirm the Order impugned passed by the learned Civil Judge (Senior Division) on 16th February, 2012 in Money Suit No. 63 of 2008.

The revisional application is, accordingly, dismissed. There will be no Order as to costs. Urgent Photostat certified copy of this Order, if applied for, be given to the learned Advocate for the petitioner, upon compliance of all requisite formalities.