Calcutta High Court
In Re Vivekananada Nidhi And Others vs Smt. Ashima Goswami on 7 February, 1997
Equivalent citations: AIR1997CAL340, (1997)2CALLT48(HC), 1997(1)CHN418, AIR 1997 CALCUTTA 340, (1997) 3 ICC 421, (1997) 1 CAL HN 418, (1997) 1 CAL LJ 388, (1997) 2 CALLT 48, (1997) 3 CIVLJ 920, (1998) 1 CURCC 80
Author: T. Chatterjee
Bench: T. Chatterjee
ORDER
1. The opposite party Smt. Ashima Goswami as a plaintiff instituted a suit against the petitioners for declaration and for permanent injunction. This suit was filed in the 2nd Court of the Munsif, at Alipore, 24 Parganas (South) which was registered as title suit No.359 of 1991. The petitioners entered appearance in the suit and here contesting the same by filing their written statement and additional written statement wherein one of the pleas was that the Munsif, 2nd Court at Alipore had no jurisdiction to try the suit on the ground that the valuation of the suit property exceeded the pecuniary jurisdiction of the Munsif, 2nd Court at Alipore. It appears from record that on 26th October, 1995 the petitioners filed an application under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure praying for necessary order necessary order for rejection of the plaint in limine for its inherent defects. The said application under Order 7, Rule 11 of the Code of Civil Procedure was disposed of by the Munsif, 2nd Court at Alipore, district 24 Parganas, (South) by giving liberty to the opposite party to take steps for amendment of the plaint if the she felt it necessary so to do. In the aforesaid background the opposite part on or about 14th of November, 1995 filed an application under Order 6, Rule 17 of the Code of Civil Procedure by which the opposite party sought to amend the plaint inter alia for incorporation of the relief for recovery of possession in the suit. The application for amendment was allowed by the learned Munsif, second Court at Alipore aund consequent thereof a direction was made on the opposite party to take steps in the suit as by such amendment of the plaint the jurisdiction of the Munsif Court stood ousted because of enhancement valuation of the suit. At this stage, the opposite party filed an application under Section 24 of the Code of Civil Procedure before the District Judge, 24 Parganas (South) and by an order dated 14th of December, 1995 the learned District Judge by invoking the power conferred on him under Section 24 of the Code of Civil Procedure transferred the suit from the second Court of the Munsif at Alipore to the Court of the Assistant District Judge, 10th Court of Alipore for disposal. The application under Article 227 of the Constitution has been moved against the order of the Dist. Judge transferring the suit from the Court of the Munsif to the Court of the Assistant Dist. Judge. The other revisional application which was also taken up for hearing along with the application under Article 227 of the Constitution has been moved against the order allowing the application for amendment of the plaint. From the order allowing the application for amendment of the plaint it appears that the defendant did not file any objection to the application for amendment of the plaint nor she raised any objection against the same at the time of hearing of the application. From this order of the learned Munsif it also appears that the learned Munsif has proceeded on the basis that after allowing the application for amendment of the plaint his jurisdiction to try the suit would be ousted and therefore, no further order in the matter after allowing the application for amendment would be possible for him to pass. The questions that now arise for my consideration are as follows:
1) Can a civil court under O.6, R.17 of the Code of Civil Procedure allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter.
2) Whether the District Judge in the exercise of his power under S.24 of the Code of Civil Procedure can transfer a suit filed in the Munsif Court to the Court of Assistant District Judge in which the valuation of suit is made beyond Rs. 30,000/-.
2. Let us take up the first question for decision first Mr.Dasgupta, appearing on behalf of the defendant/petitioners did not dispute that the application for amendment of the plaint could not be allowed as it would change the nature and character of the suit property. Mr.Dasgupta contended that in view of the nature of amendment sought for it would be evident that if such amendment was allowed, the learned Munsif would lose his jurisdiction to try the suit and therefore, such an application for amendment which would oust the jurisdiction of the Munsif to try the suit could not be allowed by him and in that case the learned Munsif instead of allowing the application for amendment of the plaint ought to have held that he had no jurisdiction to allow such amendment of the plaint and therefore, the plaint should be returned to the plaintiff for filing to an appropriate court with the application for amendment of the plaint which can only be dealt with by the transferee court. In support of this contention Mr.Dasgupta relied on a Division Bench decision of the Nagpur High Court in the case of Lalji Ranchoddas v. Narottam Ranchoddas AIR 1953 Nagpur 273, and also on the Division Bench decisions of this Court in the case of Mohd.Jaira Khatun v. Janab Mohd.Jani Alam, and 1983 (2) Cal. H.N.7, Mohd. Jeeves Ali v. Rohima Ali and on a Supreme Court decision , Rukhma Bai v. Rukmanand. Relying strongly on the Division Bench decision of the Nagpur High Court, Mr. Dasgupta contended that the trial Court in the instant case also without allowing the application for amendment of the plaint ought to have directed that the unamended plaint shall be returned with the application for amendment, for presentation to the proper court. Therefore, Mr. Dasgupta contended that the learned Munsif had acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for amendment of the plaint and in directing the consequences to be followed by the transferee court after the application for amendment was allowed. Reliance was also placed, as already said hereinabove on the Division Bench decision of this Court , Mohd. Jaira Khatun v. Janab Mohd. Jani Alam. In this decision of this Court the principle that was laid down was that when the Court had inherent lack of jurisdiction to entertain a suit it was not competent to grant amendment of the plaint in such a suit to bring it within its jurisdiction. The reasons for such conclusion is that granting an amendment postulates the authority of the Court to entertain the suit and to make an order for amendment therein but where the Court inherently lacks jurisdiction to entertain the suit it cannot make any order for amendment to bring the suit within its jurisdiction. In that context it was held that the Court would be exercising jurisdiction which it has not got. In the present case the position is just the reverse. it is not in dispute that the learned Munsif, second court at Alipore had the jurisdiction to entertain the suit filed by the plaintiff/opposite party as it was filed for declaration and injunction which was valued at Rs. 100/- only. But after the amendment of the plaint is allowed automatically the learned Munsif loses his jurisdiction to try the suit and in that case, the Court having jurisdiction to try the suit would have the jurisdiction to pass necessary orders in the suit. Therefore, in my view, this decision cannot help me in coming to a proper conclusion on the question in hand. But it may be noticed why Mr. Dasgupta relied on this Division bench decision of this Court. According to Mr. Dasgupta, this decision of the Court in paragraph 8 at page 136 has approved the principles laid down in the Nagpur case.
3. From a perusal of paragraph 8 of the aforesaid decision of this Court in the case of Johar Khatun v. Mohd. Jani Alam it only appears that Anil Kr. Sen, J. (as his Lordship then was) observed that the view taken by him was also the consistent views of other High Courts and reference was made to the decision of Nagpur High Court. It may not be out of place to mention that the consistent views of other High Courts which were followed by this Court are to the following effect: "If a court finds that it has no jurisdiction, then to say it has jurisdiction to ask the plaintiff to amend his valuation with a view to direct him to pay additional court-fee and then return the plaint, would seem to suggest that a Court not having jurisdiction has got jurisdiction to do something which is prima facie the duty and function of the proper court."
4. For the purpose of applying the aforesaid principles as laid down by other High Courts in India reference was made to the Nagpur High Court case. As already discussed hereinabove, the principles laid down in the decision of Johar Khatun v. Jani Alam would not be applicable as the principles laid down in this case are just the reverse of the principles laid down in Johar Khatun v. Jani Alam. In this connection another Division Bench decision of this Court in the case of Mohd.Jeeves Ali v. Rohima Bibi, 1983(2) Cal HN 7, must be noticed on which the learned counsel for the parties also strongly relied. This Division Bench decision of this Court found that the courts in India were not unanimous in their views as regards the power of court to allow an amendment of the plaint which would take the suit out of its jurisdiction and about the procedure to be followed. In paragraph 17 of the said Division Bench decision, Chittotosh Mukherjee, J. (as his Lordship then was) framed three broad lines of judicial views on the aforesaid questions. For appreciation of the question in hand I feel it necessary to quote the judicial views as framed by Chittotosh Mukherjee, J. in paragraph 7 of the said decision which are as follows:
"1. When an application for amendment of the plaint is made which if granted will deprive the Court's jurisdiction to decide on merits, the court ought to dismiss the application. No Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit vide the decision of Venkatasubba Rao, J. in C.Singara v. M.Gobinda Swami AIR 1928 Mad 400.
2. When the court is faced with the question of allowing an amendment which taken together with the original claim exceeds its jurisdiction it should return the plaint together with the application of amendment of consideration by the Court having jurisdiction to entertain the claim which is proposed to be made by amendment of the plaint (see Lalji Ranchoddas v. Narottam Ranchoddas, AIR 1953 Nagpur 273; Edupuganti Rao Memorial High School Committee v. Poturs Atharyya AIR 1957 AP 10.
3. When the claim as originally made is within the courts' jurisdiction but if the said claim is amended, the court might have no further jurisdiction, the said court itself is competent to allow such amendment. Thereafter, it would decide whether the amended plaint should be returned for presentation to the proper court, (see Vhavana v. Mangamma AIR 1949 Mad 208; Govardhan Bang v. Govt. of the Union of India AIR 1953 Hyderabad 212; Kundan Mal v. Thikaha Siyari, ; T.K. Sreedhan v. P.S. Job, ."
5. In paragraph 18 Chittotosh Mukherjee, J. (as His Lordship then was) on consideration of the relevant decisions held as follows:
"In our opinion the third view set out hereinabove ought to be followed, O.6, R.17 of the Code has not expressly deprived the court of its power to allow amendment which might affect its jurisdiction to try the suit. It is settled law that the court has a large measure of discretion in the matter of allowing amendments and court's such power is liberally exercised. On the question of amendment of pleadings we ought to adopt a procedure which would ensure proper administration of justice and at the same time shorten rather than delay fair disposal of the case. In case, upon the pleadings originally made, the court has competence to try the cause, the said court, ought to consider the application for amendment of the plaint even when proposed amendment might after court's jurisdiction to further try the suit.
We also agree with the observations made in the cases of Govardhan Bang v. Govt. of Union of India, Kundan Mal v. Thikana Siyari v. P.S. Job that when the Court considers the application for amendment of the pleadings it does not enter into the merits, at the stage. The Court only decides whether or not the proposed amendment ought to be allowed on such terms as may be just in order to decide the real question in controversy between the parties. In case, after amendment of the plaint is granted, the defendant raises an objection about the court's competence to try the suit or the proceedings, the court may decide the said jurisdictional question as a preliminary one. In case the court finds that it has no jurisdiction to entertain the amendment case, it might direct return of the plaint for presentation to the competent court of law, at the stage of deciding whether an amendment of the plaint ought to be allowed, the court would not be justified in recording any finding on the merits or about the consequences of the proposed amendment."
After such amendment is allowed, the court has ample jurisdiction to direct return of the plaint under O.7, R.10 of the Code of Civil Procedure or according to the principles embodied in the said rule. The observations and the conclusions arrived at by Chittotosh Mukherjee, J. in that decision are not only biding on me, but also, in my view, the correct exposition of law. We should not be unmindful of the fact that the original suit filed by the opposite party before the 2nd Court of the Munsif at Alipore was a validly instituted suit. It was not in dispute that if the amendment of the plaint was not filed that court had only the jurisdiction to try the suit. So the question of inherent lack of jurisdiction of the second court of the learned Munsif at Alipore shall not arise at all in this case. The question of losing jurisdiction by the 2nd Court of the Munsif would only arise only when the plaint is permitted to be amended. Let me give an example in this matter. Assuming the procedure adopted by the Nagpur High Court in Lalji Ranchoddas v. Narottam Ranchoddas, AIR 1953 Nagpur 273, is followed in this case that is to say the unamended plaint with the application for amendment of the plaint is transferred to the transferee court can it be said that the transferee court shall have the jurisdiction to decide or deal with the application for amendment of the plaint because the suit filed before the 2nd Court of the Munsif could not be entertained by the transferee court. Therefore, following the aforesaid observations and the principles laid down by the Division Bench of this Court in the case of Mohd. Jeeves Ali v. Rohima Ali, 1983 (2) Cal HN 7, I am of the view that the learned Munsif has not acted illegally and with material irregularity by allowing the application for amendment of the plaint as the learned Munsif still had the ample jurisdiction to direct return of the plaint under O.7, R.11 of the Code of Civil Procedure or according to the principles embodied in the said rule. In , Benishan Mohonlal Khetan v. Mahadeo Tukaram Borkar, the same view has been expressed as done by this Court in 1983(2) Cal HN 7, in paragraph 3 of the said decision the Bombay High Court observed as follows:
"Having regard to the letter and spirit of O.6, R.17 of the Code of Civil Procedure and the interest of substantial justice, it seems to us that Jaykrishan, , represents the correct legal position viz. that court has ample jurisdiction to pass suitable orders on the application and in case amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper court under O.7, R.10 of the Code of Civil Procedure. For reaching the aforesaid observation conclusion by the Bombay High Court, inspiration was drawn from the decisions of other High Courts namely in the case of Gobardhan Bang v. Govt. of Union of India, AIR 1953 Hyderabad 212; Kundan Mal v. Thikana Siyari, and Sridharan v. P.S. Job, ."
6. Mr. Choudhury appearing for the opposite party had drawn my attention to a single Bench decision of Gujarat High Court , M/s Patel Construction Co. Ltd. v. M/s. Shah Roychand Amulkh. In paragraph 10 of the said decision the learned Judge of the Gujarat High Court considered the possible procedures which would be available in any case wherein pleadings are sought to be amended in such a manner that it would oust the jurisdiction of the court in which the suit is initially instituted. In that paragraph the learned Judge visualised three possible procedures which court can adopt.
These are:
1) the court would reject the application for such an amendment on the ground that the amendment would oust its jurisdiction in the matter; on
2) after finding that the amendment is likely to oust the jurisdiction of the court in the matter, the court would return the plaint along with the amendment application to be filed in the proper court; and
3) the court would grant the amendment and (if) it is found that as a result of the amendment, it loses its pecuniary jurisdiction to try the suit, it would return the amended plaint back to the plaintiff for presenting it to the proper court. In paragraph 12 of the said decision reasons have been given as was done in the Division Bench decision reported in 1983 (2) Can HN 7, Mohd. Jeeves Ali v. Rohima Ali, for not accepting the first possibility. In view of the reasons given by the Division Bench in respect of the first possibility which are binding on me sitting in a single Bench. I do not feel it necessary to discuss on this possibility any further. So far as the second possibility is concerned, as noted by the learned Judge of the Gujarat High Court, I fully agree with the views expressed by the learned single Judge of the Gujarat High Court in that decision. I have already noted in my judgment earlier that if the unamended plaint and the application for amendment of the plaint are returned to the plaintiff for presentation before the proper court, certain difficulties may arise. In my view, the learned Judge of the Gujarat High Court is correct in his observation that in the event the application for amendment of the plaint is rejected by the transferee court then that would obviously result in shuttling from one court to the other without any fault of the litigant concerned. Therefore, in my view, the learned Judge was absolutely justified in not accepting the second alternative. The learned Judge of the Gujarat High Court accepted the third alternative and held that for the interest of justice, procedure of the court would be to consider and dispose of the application for amendment of the plaint and if the amendment is allowed by the court then it will direct return of the plaint to the plaintiff under O.7, R.10 of the Code of Civil Procedure. Similar view is expressed by a learned single Judge of Orissa High Court in the case of Simadri Panda v. Durgari China Aparna, .
7. Therefore, following the principle laid down by the Division Bench of this Court in the case of Mohd.Jeeves Ali v. Rohima Ali, 1983(2) Cal HN 7, and also after considering the aforesaid decisions of different High Court of India I am Unable to hold that the learned Munsif has in any way acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for amendment of the plaint. Apart from that I cannot appreciate the stand of the defendant/petitioners in this revisional application also as I find from the order allowing the application for amendment of the plaint that it was allowed by the learned Munsif, without any objection being raised either by filing any written objection to the application for amendment of the plaint or by raising any objection by way of an argument. That being the position, I am of the view that there is no reason to interfere with the impugned order allowing the application for amendment of the plaint.
8. Before leaving this question, the Supreme Court decision , Mohd.Rama Bai v. Lala Laxminarayan, be dealt with. I fail to understand how this decision can be relied for the purpose of deciding the question in hand. In that decision the Supreme Court was considering the question of starting point of limitation under Art.120 of the Limitation Act, which in my view, is not at all at issue in this case. Accordingly, this decision, in my view has no manner of application to the facts and circumstances of this case.
9. Let me now take up the other application filed under Article 227 of the Constitution. In this application under Article 227 of the Constitution the petitioners have challenged an order passed by the Dist. Judge, South 24 Pgs. by which the learned Dist.Judge, South 24 Pgs. by invoking his power under Section 24 of the Code of Civil Procedure transferred the suit being title suit no 359 of 1991 from the file of the Munsif, 2nd Court at Alipore to the Court of the 10th Assistant Dist. Judge, Alipore for disposal. Mr.Dasgupta appearing on behalf of the petitioners submitted before me that the learned Dist.Judge, South 24 Pgs. has acted illegally and without jurisdiction in transferring the suit which was pending before the 2nd Court to the file of the Assistant District Judge, 10th Court at Alipore in the exercise of his power of transfer under Section 24 of the Code of Civil Procedure. According to Mr. Dasgupta, the proceedings in Court not having pecuniary jurisdiction is not a judicial proceeding and therefore, the transferee Court has to start denovo in the present suit and the evidence and other interlocutary orders passed by the Munsif, would become a nullity. In support of this contention certain decisions where cited. The first decision is a decision of Madras High Court in the case of Sankappa Rai v. Keraga Pujari AIR 1931 Mad 575. Mr.Dasgupta has also drawn my attention to a decision of the Supreme Court in the case of Kiran Singh v. Chaman Paswan, . Similar is the view expressed by the Madras High Court in AIR 1939 Mad 724 (Satyanarayanamurthy v. Surya Rao) which followed the Privy Council Judgment reported in AIR 1929 PC 103 : (1929 All LJ 254), Ramdutt v. K.D.Sesoon & Co. The decision in , Ramalinga v. Ramaswami also expressed similar view.
10. Mr. Choudhury, appearing on behalf of the plaintiff/opposite party however submitted that the learned District Judge, South 24 Pgs. had jurisdiction to transfer the suit which was pending before the 2nd Court of the Munsif at Alipore to the file of the 10th Assistant Dist. Judge, Alipore in the exercise of his power under Section 24(5) of the Code of Civil Procedure. According to Mr. Choudhury, in view of the introduction of subsection (5) of Section 24 of the Code of Civil Procedure by the Amendment Act of 1976, the Dist. Judge is now conferred with power to transfer the suit pending in a Court not having the jurisdiction to entertain the same to a Court of competent jurisdiction for its disposal. In order to appreciate the rival contention of the parties, it would be necessary to consider the objects and reasons for inclusion of Section 24(5) of the Code of Civil Procedure. From the Law Commissioner's report on the question of introduction of Section 24(5) of the Civil Procedure Code in the year 1977 it is evident that there was conflict of decisions with regard to the question whether the old Section 24 of the Code of Civil Procedure applied in relation to transfer of a suit from a Court which had no jurisdiction to try it. According to Andhra Pradesh High Court language of Section 24 was very wide and there was no restriction or impediments in the High Court exercising power of transfer merely because there was a dispute regarding jurisdiction. This view was expressed by the Andhra Pradesh High Court in the case of Thirmala Reddy Mahalakshamma v. Mulkhari Muralidharan Rao, . In the line of the decision of the Andhra Pradesh High Court similar view was also expressed by some other High Courts viz., the decision reported in AIR 1955 Nagpur 44, Dr.K.L. Daftari v. K.L. Dubey and , Narayan Das Gopal Das Khumilal Laxminarayan. The Sindh High Court in the case of Gangumal Sewaram v. Manik Ram Khubchand, AIR 1932 Sindh 215 and the Mysore High Court in the case of S. Krishna Rao v. Gokuldas Harbhagavandas, AIR 1955 Mysore 115 however expressed a contrary view. Law Commissioner in its report considered the aforesaid two contradictory view and opined that it was to adopt the wider view in the interest of expedition and accordingly recommended sub-section (5) of Section 24 be inserted in the new Code. In my view, when Section 24 sub-section (5) of the Code of Civil Procedure has been enacted to give a wider right to the High Court or to the District Court to transfer a suit pending in an incompetent to decide the suit for interest of expedition, it cannot now be said that the Dist.Judge, Alipore, South 24 Pgs. was not conferred with the power to transfer the suit from the 2nd Court of the Munsif to the Court of the 10th Assistant Dist.Judge at Alipore, Mr.Dasgupta appearing on behalf of the petitioners, relying on the decisions as noted hereinearlier, contended that proceedings in the suit pending before the Munsif, 2nd Court at Alipore would be a nullity and therefore, the transferee Court must start denovo in this matter. From the recommendations of Law Commission for introduction of Section 24, sub-section (5) of the Code of Civil Procedure for which the aforesaid sub-section has been inserted in Section 24(5) of the Code of Civil Procedure, I am unable to agree with Mr.Dasgupta that the Dist.Judge, 24 Pgs. South had no jurisdiction to transfer the suit from the 2nd Court of the Munsif to the 10th Court of the Assistant Dist.Judge, at Alipore. Apart from that Section 24(2) of the Code of Civil Procedure which clearly confere power on the transferee Court to retry the suit of transferred to proceed from the point at which it was transferred or withdrawn. Therefore, it cannot be said that all orders and steps taken in the proceeding before the 2nd Court of the Munsif would become a nullity as soon as the Munsif, 2nd Court at Alipore had lost jurisdiction to try the suit. Apart from that it is an admitted position that the suit was filed in a competent Court that is to say before the second Munsif at at Alipore who had the jurisdiction to try the suit before the plaint was amended. It is only because of the amendment effected during the pendency of the suit, the jurisdiction of the Munsif to entertain the suit was ousted. Therefore, it cannot be said as argued by Mr. Dasgupta that all the orders and steps taken in the proceeding before the 2nd Court of the Munsif at Alipore shall become a nullity as soon as the jurisdiction of the Munsif is lost to interfere the suit due to amendment. Therefore steps and orders passed in the suit before the 2nd Munsif at Alipore cannot be said to be without jurisdiction and nullity because of the amendment of the plaint. Since Section 24 of the Code of Civil Procedure amply empowers the Dist.Judge, to transfer the suit and under Section 24(2) of the Code of Civil Procedure, transferee Court is given the discretion to reentry it or to proceed from the point at which it was transferred or withdrawn, it will be open to the transferee Court to decide whether the suit transferred to it should be reentered or would proceed from the point at which it was transferred or withdrawn. Therefore, it is for the transferee Court to decide the above question after the suit is transferred to it. In this case admittedly the amended plaint has already been filed. Mr.Dasgupta in this connection raised a question that Section 24 of the Code of Civil Procedure was not exercised after the direction was made under Order 7, rule 10 of the Code of Civil Procedure, as according to him, Section 24 could be applied when there was a proceeding pending. In my view, Mr.Dasgupta was right in his submission that Section 24 can be applied in a pending proceeding. Let me see whether the suit that has been transferred in the exercise of power under Section 24 of the Code of Civil Procedure was pending at the time the order of transfer was passed. For this purpose it is necessary to look into the order allowing the application for amendment of the plaint. From the order allowing the application for amendment of the plaint it does not appear that the learned Munsif after holding that he had got no jurisdiction any further to try the suit in view of his lack of pecuniary jurisdiction had not passed any order directing return of plaint for presentation before the appropriate Court. The learned Munsif has only directed the plaintiff to take steps in the matter. Therefore there is no order passed by the learned Munsif that in view of lack of pecuniary jurisdiction the plaint was returned to be presented to the appropriate Court for it disposal. Therefore, I must hold that until and unless a specific order under Order 7, Rule 10 of the Code of Civil Procedure is passed directing return of plaint, it must be held that the suit was pending before the Munsif, 2nd Court at Alipore, and therefore the power under Section 24 of the Code of Civil Procedure could be exercised by the learned Dist. Judge in the facts and circumstances of this case. Before leaving this question I may consider the serveral decisions which were cited by Mr. Dasgupta on the question of transfer. In the decision of Privy Council in the case of Ramdutt v. E.D.Sassoon AIR 1929 PC 103 : (1929 All LJ 254) it was considering whether the benefit of Section 14 of the Limitation Act could be available to a plaintiff in the case of a second suit where the first suit was found to have been instituted in the Court which was found to have no jurisdiction, similar is the position in respect of AIR 1940 Mad 68, Chandrayya v. Seethanna.
This Privi Council judgment was followed in AIR 1939 Mad 724, Parvata Satyanarayan Murthy v. Sri Rajan Rao Venkata Kumara Muhipathi Surya Rao Bahadur. In the Madras decision the point for consideration was that when the suit was instituted in a Court not having jurisdiction and plaint was returned under Order 7, Rule 10 of the C.P.C., the date of representing the plaint to the latter Court was the date of its jurisdiction. While deciding the question raised which is at page 728 of the decision certain observations were made. Such observations as made in page 728 of the decision are as follows:
In this view the question whether the claim for rent for subsequent faslis adduced on the date of the representation of the plaints in the Revenue Court is barred by limitation was argued, I shall deal with it. It is now well settled that where a plaint is presented in a Court which has no jurisdiction and it is represented after return by that Court in a Court which has jurisdiction, the presentation in the latter Court must be deemed to be the date of its institution in the said Court. The proceedings in the former Court are of no avail and the proceedings in the latter cannot be treated as a continuation of the proceedings in the former suit."
11. From the aforesaid observations of the Madras High Court it is, therefore, clear that such observations were obiter. The case reported in AIR 1931 Madras, 575, Sankara v. Keraga Pujary laid down the principle that proceeding in Court not having pecuniary jurisdiction was not a judicial proceeding and evidence taken in such proceeding could not be used in retrial.
Again similarly the decision in AIR 1921 Mad 696, Govendaswami v. Kaliaperumal also dealt with the situation where the suit was instituted in a Court which had no jurisdiction to entertain. From a careful reading of the aforesaid decisions cited at the bar it does not appear to me that all these decisions would be helpful for the purpose of deciding the question whether under Section 24 of the Code, the Dist.Judge had the power to transfer the suit. These were not the decisions dealing with transfer under Section 24 of the Code of Civil Procedure. That apart at this stage it is not desirable to say whether the transferee Court shall reenter the suit or shall proceed from the date the suit before the Munsif was withdrawn.
12. There is another aspect of this matter. From a reading of the order transferring the suit from the 2nd Court of the Munsif, to the 10th Court of Dist.Judge, Alipore, it appears that an administrative order was passed by the learned Munsif in the exercise of his power under Section 24 of the Code of Civil Procedure. Therefore, in the absence of any inherent defect in such order passed in the administrative capacity of the learned Dist.Judge, the power under Article 227 of the Constitution shall not be exercised against such an order of the Dist.Judge.
13. For the reasons aforesaid, I do not find any merit in this application under Article 227 of the Constitution and accordingly the application under Article 227 of the Constitution is rejected.
14. For the reasons aforesaid, both the applications filed by the petitioners are rejected but in the facts and circumstances of this case, there will be no order as to costs.
15. Petitions dismissed.