Harnam Das vs Salamat Rai

Kesho Ram Passey, J.—The facts out of which this revision petition has arisen, are shortly stated these: On 5-2-1999 Bk. Harnam Das petitioner filed a suit for partition of certain immovable property in the Court of the ''Adalti'' Phagwara who had unlimited pecuniary jurisdiction. On 20-8-1948, the Kapurthala State of which Phagwara is a tehsil merged into the Patiala & East Punjab States Union. Courts in the newly formed Union were freshly constituted and a Sub-Judge of the 2nd Class replaced ''the Adalti'' at Phagwara. The Sub-Judge continued to deal with the case till 28-6-1950 without any objection regarding his jurisdiction to entertain it by the defendants and under his orders a plan together with an estimate of the value of the property in dispute was prepared. The property was valued at Rs. 29,979/- and the plaintiff had claimed to be entitled to one-half of the property. The value of the subject-matter for the purposes of jurisdiction was consequently taken to be Rs. 14,989/9/-. In view of this valuation, the Sub-Judge could not try the suit himself and, therefore, vide his order dated 28-6-50 sent it to the District Judge Kapurthala for further proceedings. The learned District Judge by his order dated 31-7-1950, returned the case to the Sub-Judge with the observation that he ought to have returned the plaint under O. 7, R. 10, C.P.C. to the plaintiff to be presented to the Court in which the suit should have been instituted instead of sending it on to his Court.

The plaintiff has moved for revising that order. It is not disputed that the suit when it was instituted could not have been filed in any Court other than that of the Adalti and there were no restrictions on his pecuniary jurisdiction. The question now is whether the Sub-Judge 2nd Class, when he discovered that the suit was not friable by him, must have returned the plaint to Harnam Das or his order by which he submitted the case to the Court of the District, which is the Court competent to try the suit, is in order.

Order 7, R. 10(1), Civil P.C. says that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The words "in which the suit should have been instituted" obviously do not mean the Court in which the suit should be instituted. The provisions of this rule regarding return of the plaint appear to me to apply to cases in which the suit when originally instituted was not properly instituted and not to cases in which the suit was instituted in the proper Court, but subsequently that Court ceases to exercise jurisdiction and another Court with restricted pecuniary jurisdiction is constituted to take its place. It is thus the defect of presentation of the plaint in the first instance in a wrong Court that attracts the applicability of O. 7, R. 10, Civil P.C., and that rule does not govern cases where the suit when instituted did not suffer from any defect whatsoever. In support of this view AIR 1928 484 (Lahore) may profitably be referred to. It was held in that case that

Order 7, R. 10, Civil P.C., does not apply to cases where a Court originally had jurisdiction to try the suit but discovered at the time of passing a decree that it is incompetent to pass the decree because of the pecuniary valuation.

The grounds on which that finding was given obtain in the present case as well.

Shri Lachhman Dass, counsel for the respondent, has referred me to ''Gulzari Singh v. Ram Adhin'', AIR 1938 Oudh 224 in which it was laid down that "the provisions of R. 10 (1) of O. 7, Civil P.C. are sufficiently wide to cover a case in which by operation of legislation the situation arises even after a suit has been instituted, that it should have been instituted in another Court." Jamuna Prasad V. Bhawani Dayal'', ILR (1937) All 757, was followed in that case. In '' ILR (1937) All 757'', the facts were different. The superseding legislation required that an agriculturist defendant should not be dragged to a distant place for the purpose of defending a claim brought against him and that such suit should be tried and decided by a Court within whose jurisdiction he either resides or within whose jurisdiction his property is situate if he resides outside the province. A similar decision was given in ''Chunni Lal v. Ajudhiya Prasad'', 1937 All LJ 1235, in which it was held that S. 7 of the Agriculturists'' Relief Act contemplated that no Court should have jurisdiction to entertain a suit when it is filed or to try it unless the conditions mentioned in S. 7 are fulfilled.

In both the Allahabad cases and so also in Gulzari Singh v. Ram Adhin'' AIR 1933 Oudh 224, the Agriculturists'' Relief Act was taken to have in effect retrospective applicability so far as the jurisdiction of Courts was concerned and it was in view of the peculiar circumstances of those cases that it was held that O. 7 Rule 10(1) would cover cases in which by operation of legislation a new situation arises. I am, therefore, unable to accept the view of the learned District Judge, that the present case was covered by O. 7, R. 10, C.P.C., and that the plaint should have been returned to the plaintiff for being presented to him (District Judge).

Where Order 7, R. 10. Civil P.C. does not apply, there is no duty on the Court to return the plaint to the plaintiff, and the plaint can be sent to the Court having jurisdiction to try the case by the Court which at any stage finds that for want of pecuniary jurisdiction it is not competent to try it. In ''Azam Ali v. Akhtar Hassain'' 33 Ind Cas 808 (Lah), it was held by Johnstone, C.J., that the proper course for the Court in such cases is to send the case to the Court having jurisdiction.

In my view it was entirely unnecessary for the learned District Judge to direct the Court below to return the plaint so that the plaintiff could himself present it to his Court. The objection even if it had any force, being too technical, ought to have been ignored. I, therefore, accept the revision petition and direct that the learned District Judge shall register the suit in his own Court and proceed with it according to law. Costs of this revision shall be costs in the suit. Parties'' counsel have been directed to cause their clients to appear in the Court of the District Judge, Kapurthala on 25-4-1951.