Kapur Singh vs Isher Singh

Teja Singh, C.J.—This petition arises out of a suit for pre-emption relating to agricultural land. The question involved is very simple but as there appears to be some confusion regarding the law bearing on the point, it is desirable that I should deal with it at some length.

The suit was originally instituted in the Court of Sub-Judge, 2nd Class whose pecuniary jurisdiction extends- to Rs. 5,000/-. When the defendant vendee appeared he contended that the price paid by him being Rs. 7,000/- the Sub-Judge, 2nd Class had no jurisdiction to entertain the suit. The Sub-Judge without deciding the objection of the defendant and without holding that he had no Jurisdiction to hear the suit sent the record of the case to the Distinct Judge with the recommendation that the same be sent to a competent Court if or disposal. The District Judge ordered the record of the case to be transferred to the Court of Sub-Judge 1st Class. The vendee defendant has now come to this Court on the revision side with the prayer that the orders of the Sub-Judge and the District Judge be set aside.

The petitioners'' Counsel argues that the Sub-Judge, 2nd Class was not competent to entertain the suit and the proper procedure for him was either to dismiss it or to return the plaint to be presented to a Court of competent jurisdiction. He also argues that the order of the Sub-Judge, 2nd Glass being illegal the District Judge had no power to transfer the case to another Court on the strength there for Now, I agree with the Counsel that if it be conceded for a moment that the Sub-Judge, 2nd Class could not entertain the suit for want of jurisdiction to hear it he could not apply to the District Judge to transfer it to some other Court and the only order that he could make was to return the plaint for presentation to a proper Court. I may also mention that a legal order for the transfer of a case from one Count to another could be made only if the first Court had jurist diction to hear it, but so far as the present suit is concerned I do not agree with the petitioner''s Counsel that the Sub-Judge, 2nd Class had no jurisdiction to hear it. It is admitted that the land which is the subject-matter of the suit is assessed to land revenue of Rs. 31/11/0/- and the jurisdiction value of the suit for possession is twenty-five times the annual land-revenue which comes to Rs. 792/3/0/-. The fact that the defendant vendee alleges to have paid Rs. 7,000/- as price of the land does not affect the jurisdiction of the Court to hear the suit. I agree that if it came to the stage of passing a decree on payment of Rs. 7,000/- it would not be within the power of the Sub-Judge, 2nd Class to pass the decree, taut this is quite different from saying that the suit could not be heard by the Sub-Judge, 2nd Class or that he could not go with it until the stage of passing the decree arrived. For example, suppose that the vendee contested the plaintiff''s right to pre-empt or it pleaded that the suit was barred by time. Since the value of the suit for purposes of jurisdiction was less than the pecuniary jurisdiction was less than the" pecuniary jurisdiction of the Sub-Judge, 2nd Class there was nothing to debar him from deciding the case on the pleas of limitation or the ''plaintiff''s superior right of preemption. The order of the Sub-Judge by which he forwarded the record of the case to the District Judge does not make any mention of this fact, but if the reason why he wanted the case to be transferred from his Court was that he would not be competent to pass a decree on payment of Rs. 7,000/-, the amount claimed by the vendee, it cannot be said that he acted illegally or that the District. Judge could not transfer the case from his Court to the Court of a Sub-Judge, 1st Class, though I must also add What the Sub-Judge, 2nd Class should have waited till the case arrived at the stage when decree was to be passed on payment of Rs. 7,000/. In the circumstances I do not think that there is any reason for me to interfere on the revision side.

One of the arguments addressed to me by the petitioner''s Counsel was that a great injury had been done to his client by the wrong orders made by the Sub-Judge, 2nd Class and the District Judge. He contended that the Sub-Judge, 2nd Class had no jurisdiction to hear the case and he returned the plaint for presentation to the Court of a Sub-Judge First Class by the time the suit would have been reinstituted in the latter Court it would have become barred by time, but by virtue of the order of transfer made by the District Judge he cannot now successfully take the plea of limitation. I wish to say that even, assuming for the sake of argument that the Sub-Judge, 2nd Class had no jurisdiction to entertain the suit the order of the District Judge transferring it from that Court to that of the Sub-Judge, 1st Class does not affect the question of limitation because, so far as the Court of Sub-Judge, 1st Class is concerned, the suit can be taken to have been Instituted there only on the day the plaint is received in that Court. This means that if the pleas of jurisdiction and limitation would have been open to the petitioner had the plaint been returned by the Sub-Judge, 2nd Class and reinstituted in the Court of Sub-Judge, 1st Class they are open to him even now notwithstanding the order of the District Judge transferring the case from one Court to the other.

The result is that the petition is dismissed ''In limine.''