Jaduni Pande vs Sheonandan Pande

Fazl Ali J.

This is a reference by the District Judge of Arrah under Order 46, Rule 7, Civil P.C. It appears that one Jaduni Pande instituted a money suit in the Court of the Munsif of Arrah on 6th March, 1929, for the recovery of Rs. 78-12-0 which according to him represented the price of what he claimed to be his share in certain ornaments belonging to his mother. The plaintiff and defendant 1 are brothers and defendants 2 and 3 are their nephews. The plaintiff''s case was that certain ornaments belonging to his mother and worth Rs. 236-4-0 were with defendant 1, but after the lady died, the latter declined to give to the plaintiff either his share of the ornaments or the price thereof. The suit was decreed by the Munsif but on appeal the District Judge was of opinion that the suit was triable by the Court of Small Causes and not by the Munsif in his ordinary jurisdiction and, therefore, referred the case to this Court under Order 46, Rule 7, for passing such orders as this Court might think fit.

It appears to me that the learned District Judge is right in holding that the suit is triable only by a Court of Small Causes. The important point, however, to be considered is that the

defendants never seriously pressed their objection to the jurisdiction of the Court on the ground that the suit was triable only by the Court of Small Causes and by no other Court. It appears that the suit was decreed ex parte on 13th January, 1930, and although it was open to the defendants to come up in revision against the decree of the Munsif on the ground that it was without jurisdiction, they preferred to make art application to the Munsif sitting in ordinary jurisdiction under Order 9, Rule 13, for setting aside the ex parte decree.

The suit was restored and the learned Munsif proceeded to try it. The defendants then filed an application on 15th April, 1930, in which the question of jurisdiction appears to have been raised, but, as the learned District Judge remarks the petition was never pressed. We may therefore take it that the present case cannot be distinguished in principle from that class of cases in which a party does not raise any objection at all on the ground that the trying Court has no jurisdiction to try the suit. In Jadunandan Sahay v. Jung Bahadur Sahay [1917] 37 IC 999 it was held by Jwala Prasad, J., that where a Small Cause suit is tried on the original side and the parties do not raise any question of jurisdiction in the trial Court and an appeal from the decree of the latter Court is heard and decided by the District Judge it is open to the High Court to look into the merits of the case and either to interfere or not to interfere with the decree of the lower Courts as the justice of the case may require.

The facts of that case are not dissimilar to those of the present case and the only point of distinction is that in the present case, although there was an appeal to the District Judge, yet it has not been decided by him on the merits. That fact alone however is not very material. The case has been referred to us under Order 46, Rule 7, and Clause (2) of that rule clearly says that:

on receiving the record and statement the High Court may make such order in the case as it thinks fit.

Now there seem to be two alternative courses open to us: (1) to set aside the decree of the Court below and direct the plaintiff to present the plaint before the proper Court; and (2) to look into the merits of the case and decide whether the decree of the Court below is a just and proper one or not. As I have already stated, the case Is of a very petty character and was instituted as long ago as on 6th March 1929, and to adopt the former course would be to put the parties to unnecessary harassment.

In these circumstances we have read the evidence and the conclusion to which I have arrived is that the decision of the Munsif is correct and ought to be upheld. In this view the order of the Munsif will be regarded as final and it will be unnecessary for the learned District Judge to hear the appeal.

Courtney-Terrell, C.J.

I agree.