Dipak Kumar Dutta vs Indrajit Singh

Sabyasachi Bhattacharyya, J.

The present revisional application has been filed at the instance of a defendant in an eviction suit. By virtue of the impugned order dated November

14, 2017, the petitioner’s application under Order VII Rule 10 of the Code of Civil Procedure was dismissed on contest. Initially the suit was

valued at Rs.31,880/- and was filed before the Civil Judge (Junior Division), Second Court at Alipore. Subsequently, by an administrative transfer, the

suit was transferred to the Second Additional Court of Civil Judge (Junior Division) at Alipore. It may be mentioned here that this was not merely an

initial order of assignment under Section 13(2) of the Bengal, Agra & Assam Civil Courts Act, 1887 but a subsequent transfer under Section 24 of the

Code of Civil Procedure.

Subsequent to such transfer, at the instance of the plaintiff/opposite party, an amendment was carried out to the plaint, thereby inter alia increasing the

valuation of the suit from Rs.31,880/- to Rs.35,127.20p. After such amendment was effected, the defendant/petitioner took out an application under

Order VII Rule 10 of the Code of Civil Procedure for return of the plaint to a Court having jurisdiction to hear the matter. The premise of such

application was that the upper limit of the pecuniary jurisdiction of the transferee Court, that is, the Second Additional Court of Civil Judge (Junior

Division) at Alipore was Rs.30,000/-. However, the upper limit of the pecuniary jurisdiction of the Court of institution of the suit, that is, the Civil Judge

(Junior Division), Second Court at Alipore was Rs.60,000/-. As such, it was pointed out, that the amended plaint took the valuation of the suit above

the pecuniary limit of the transferee Court and as such, the suit ought to be transferred to the Court having pecuniary jurisdiction to hear the matter.

It is argued on behalf of the petitioner that it is settled law that, upon the plaint being amended, if the valuation of the suit is enhanced beyond the

pecuniary jurisdiction of the Court, the plaint has to be returned for being presented before the appropriate Court. It is further submitted that the

provisions of Order VII Rule 10 (1) of the Code of Civil Procedure make it very clear that an application for return of plaint can be filed at any stage

of the suit and the Court had ample power at any point of time to return the plaint.

It is argued on behalf of the plaintiff/opposite party that an administrative transfer was governed by Section 13(2) of the Bengal, Agra & Assam Civil

Courts Act, 1887 and it is deemed that the transferee Court has the same jurisdiction, pecuniary or otherwise, as the Court of institution of the suit. In

this context, the opposite party who, upon being granted leave, is appearing in person, cites three judgments of this Court. The first judgment cited by

the opposite party is reported at AIR 1942 Cal 321 (Masrab Khan vs. Debnath Mali Alias Abhu Mali).

In the said judgment, relying on Section 13(2) of the Bengal, Agra & Assam Civil Courts Act, 1887, it was held that the provisions of Section 150 of

the Code of Civil Procedure were not applicable in a case where an application for execution of a decree was filed in a Court which had, subsequent

to the passing of the decree, been assigned the territorial jurisdiction to take up matters, which were previously being taken up by the Court passing the

decree. It was further held that the Court which passed the decree while having territorial jurisdiction to do so, retained jurisdiction to take up

execution cases filed in connection with decrees passed by it. The opposite party next cites an unreported judgment, being Sudakshina Sen vs. Prabhat

Kumar Mitra (C.O. No. 878 of 2013). The facts in the said case were as follows:

An eviction suit under the West Bengal Premises Tenancy Act, 1997 was filed before the Additional Court of Civil Judge (Junior Division) at Sealdah,

who was appointed as an Additional Rent Controller under the said Act previously. On the day when the suit was filed, an amendment had already

taken place in the said Act, thereby substituting the word “Civil Judge†for the word “Controllerâ€. As such, it was argued that the Civil Court

then having jurisdiction was the Civil Judge (Junior Division), First Court at Sealdah and the suit had been filed before a wrong forum. It was held by a

co-ordinate bench in the said judgment that such defect in filing the suit could not be said to be incurable and fatal. It was held further that the

Additional Judge, before whom the suit was filed, was as competent as the Court which had been conferred jurisdiction in the meantime to take up

such matters. It was held in the said judgment that distribution of business does not amount to a transfer of a business within the meaning of Section

24 of the Code of Civil Procedure.

The next unreported judgment cited by the opposite party is Pran Kumar Purkait and Another vs. Sk. Abdul Khalaque (C.O. No. 1456 of 2014). In

the said case, at the hearing stage, an application was filed disputing the competence of the Civil Judge (Junior Division), First Additional Court at

Diamond Harbour to hear an eviction suit under the West Bengal Premises Tenancy Act, 1997 by taking resort to Section 12A of the said Act. It was

held that such provision, which related to properties situated within the original side jurisdiction of this Court, had no manner of applicability to the said

case. It was observed that the District Judge had constituted the said Additional Court and transferred suits for their trial and accordingly, upon such

conferment of jurisdiction, either territorial or pecuniary, and upon transfer of suits for disposal before the said Court, the transferee court assumed

jurisdiction and there was no illegality in proceeding to decide the suit.

Upon hearing the arguments of both sides and a perusal of the materials on record in the case at hand, it is found that the factual matrix of the instant

case is different from those of the cited judgments. In Masrab Khan’s case, the suit had already been decreed and the second execution case was

filed in a Court which subsequently assumed jurisdiction by virtue of assignment under Section 13(2) of the Bengal, Agra & Assam Civil Courts Act,

1887. There, it was held that the Court passing the decree had jurisdiction to take up the resultant execution case also and subsequent conferment of

territorial jurisdiction to some other Court did not take away the authority of the Court passing the decree to take up execution of such decree also.

In the present case, however, the suit has been pending and the transfer took place sometime after filing of the suit. Such transfer could only be under

Section 24 of the Code of Civil Procedure, of course, to a Court to which jurisdiction was already assigned under Section 13(2) of the Bengal, Agra &

Assam Civil Courts Act, 1887. As to Sudakshina Sen’s case, the suit was filed in a Court which was previously empowered to take up eviction

suits under the West Bengal Premises Tenancy Act, 1997, although on the date of such filing a different Court, on the same rung in hierarchy as the

Court of institution of the suit, had already been assigned jurisdiction to take up such suits. In such circumstances, it was held that such defect was

curable since the strength of both the Courts were same as per the hierarchy prescribed in the Bengal, Agra & Assam Civil Courts Act, 1887.

In the case at hand, however, initially the suit was filed in a Court having pecuniary jurisdiction to hear the matter. Subsequently, upon transfer, the

matter went to a different Court which had pecuniary jurisdiction of a lower ceiling than the valuation of the suit. The scope of the reported judgment

was thus on a different footing than the present one. Considering Pran Kumar Purkait’s case, the question involved there was of non-applicability

of Section 12A of the West Bengal Premises Tenancy Act, 1997, which was raised by the defendant in the said suit. In such context, it was held that

conferment of jurisdiction on a court by an administrative order and transfer of suits for their trial to such court amounted to the transferee Court

assuming jurisdiction and as such, there was no illegality in the suit being decided by the transferee court. In the present case, the context was a bit

different, since transfer to the Court currently taking up the suit was a mere administrative transfer under Section 24 of the Code of Civil Procedure.

Apart from the aforesaid discussions, there are certain other angles to the suit. A consideration of Section 21(2) of the Code of Civil Procedure is

essential for deciding the present matter. The said sub-section reads as follows:

“21. Objections to jurisdiction. â€" ...    … …

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or

Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are

settled, at or before such settlement, and unless there has been a consequent failure of justice. ...      …       …â€​

As is evident, this Court, sitting in revision, cannot permit the defendant/petitioner to take objection as to the pecuniary jurisdiction of the Court

currently in seisin of the suit since such objection was not taken in the Court of the first instance at the earliest possible opportunity. The suit was filed

with a valuation of Rs.31,880/- in the Court of Civil Judge (Junior Division), Second Court at Alipore, the upper limit of pecuniary jurisdiction of which

was Rs.60,000/- and as such the suit was maintainable in such Court in any event. However, when the suit was subsequently transferred to the

current Court, that is, the Second Additional Court of Civil Judge (Junior Division), no objection as to pecuniary jurisdiction was taken by the

defendant, although the suit, even prior to subsequent amendment, was already valued above the pecuniary jurisdiction of the transferee Court.

By an amendment application, which had been filed in the Court of institution of suit, but allowed by the transferee court, the valuation was increased

to Rs. 35,127.20 p. Taking advantage of such amendment, the defendant took out an application under Order VII Rule 10 of the Code of Civil

Procedure, urging for the first time its objection as to pecuniary jurisdiction. May it be noted that such objection was not taken by the defendant

immediately after transfer but only upon the amendment being allowed.

There is no basis for such objection, since the amendment did not materially alter the valuation vis-Ã -vis the upper limit of pecuniary jurisdiction of the

transferee court. The transferee court had jurisdiction, in any event, up to Rs. 30,000/- and the suit was already valued from inception above such

upper limit. The amendment was only cosmetic in that regard and did not alter the situation in respect of pecuniary jurisdiction of the transferee court.

Hence, having not taken such objection at the earliest possible opportunity, that is, immediately upon transfer, but having waited till the amendment

was allowed, the defendant/petitioner lost its right to urge the said point before this revisional Court.

The other aspect of the matter is that since the administrative transfer of the suit was, in the present case, effectively under Section 24 of the Code of

Civil Procedure and not mere allocation to an assigned Court under Section 13(2) of the Bengal, Agra & Assam Civil Courts Act, 1887, the provisions

of Section 150 of the Code of Civil Procedure were also applicable. The said section reads as follows:

“150. Transfer of business. â€" Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which

the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under

this Code upon the Court from which the business was so transferred.â€​

Taking a cue from such blanket provision, it can very well be said that the transferee Court has the same powers as the Court of institution of the suit.

Hence, drawing inspiration to a limited extent from the cited judgment of Pran Kumar Purkait and another vs. Sk. Abdul Khalaque, it can be held that

the transferee Court was empowered to take up, even in respect of pecuniary jurisdiction, the matters which could be taken up by the Court of

institution of the suit.

In any event, even if the transfer was not under Section 24 of the Code of Civil Procedure but under Section 13 (2) of the Bengal, Agra & Assam

Civil Courts Act, the ratio laid down in Pran Kumar Purkait and another vs. Sk. Abdul Khalaque would apply and the transferee court would have the

same jurisdiction as the court of institution of the suit. As such, there would arise no occasion, even in such a case, to return the plaint.

Although Order VII Rule 10 of the Code ipso facto does not debar the defendant/petitioner to take out an application under the said provision at any

stage of the suit, in the present case, for the other reasons as discussed above, there cannot arise any occasion to return the plaint to be presented

before any other Court. Accordingly, C.O. No. 1303 of 2018 is dismissed on contest, thereby confirming the order impugned herein. There will

however, be no order as to costs.