Karnataka High Court
T.H. Yashawanta And Others vs T.J. Jagadeesh And Others on 13 January, 1999
Equivalent citations: ILR1999KAR2924, 1999(5)KARLJ525, 1999 A I H C 2644, (1999) 4 CIVLJ 118, (1999) 3 CIVILCOURTC 552, (1999) 5 KANT LJ 525
ORDER
1. Order passed by the Civil Judge, Tarikere dated 2nd October, 1996 is assailed. On the request of both the learned Counsels, the petitions are disposed off at orders stage.
2. I.A. III filed by the plaintiff in all the three suits pending before the Civil Judge were allowed. I.A. IV filed by the first defendant in O.S. No. 68 of 1995 and O.S. No. 69 of 1995 under Order 7, Rule 10 read with Sections 6 and 15 of the CPC were dismissed. Two points were considered by the Civil Judge:
(1) Whether there are sound and justifiable good grounds to allow I.A. III under Section 151 of the CPC to correct the Court proceedings?
(2) Whether there are sound and justifiable good grounds to allow LA. IV filed by the first defendant to record de novo evidence?
The first point was answered in the affirmative while the second point was answered in the negative.
3. The learned Counsel for the petitioners who are the defendants in the suits filed, submitted that the Civil Judge was not justified in rejecting the prayer for filing their fresh written statement and adduce fresh evidence ignoring the evidence which was recorded by the Munsiff who was having no jurisdiction. The learned Counsel submitted that there is lack of pecuniary jurisdiction, the proceeding taken were without jurisdiction. The learned Counsel for the petitioners submits that initially the suit was filed in the Court of the Civil Judge, but the plaint was transferred to the Court of Munsiff as the valuation was stated to be less than Rs. 20,000/-. The Munsiff subsequently found that the valuation is more than Rs. 50,000/- and therefore he returned the plaint for submission to the Court having the jurisdiction after recording evidence. After the plaint is returned, it is submitted it is not the continuation of the proceedings as has been held in the case of Amar Chand Inani v Union of India, and that the petitioners were entitled to file fresh written statement in the Court having jurisdiction and adduce evidence after the plaint was submitted to the Court having the jurisdiction.
4. Arguments of the learned Counsels for both the parties have been heard.
5. Order 7, Rule 10 of the CPC contemplates return of the plaint to be presented to the Court having jurisdiction. After the plaint is returned then it is not a continuation of the suit as the suit was filed in a wrong Court, as has been held in the case of Amar Chand Inani, referred to above. In Sankappa Rai and Others v Keraga Pujary and Others, it was found by the Madras High Court that a proceeding before a Judge or Magistrate who has no pecuniary jurisdiction is not a judicial proceeding and the evidence of a witness given in such a proceeding cannot be used under Section 33 on a retrial before a competent Court. In Parvata Satyanarayanamurthy and Others v Sri Rajah Rao Bahadur Gam Maharaja of Pithapuram, it was observed that where a plaint is presented in a Court which has no jurisdiction and it is re-presented 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".
6. In this case evidence was recorded by the MunsifFs Court. The plaint was returned because of want of pecuniary jurisdiction, the suit property having the value of more than Rs. 50,000/-. It was during the course of arguments the Munsiff's Court found that he has no jurisdiction and therefore the plaint was returned for filing in the Court having jurisdiction. The defendant prayed for filing fresh written statement and to adduce fresh evidence on the ground that the proceedings taken in the Munsiff's Court was without jurisdiction and cannot be looked into. The Civil Judge who was trying the suit found that the application for fresh written statement and adducing fresh evidence is to harass the plaintiffs to whom great injury, inconvenience and hardship would be caused. The case was listed for framing of issues and the application has been moved to drag the proceedings. It was also observed that no failure of justice, the defendant has pointed out. Provisions of Section 21(2) of the CPC was also taken into consideration that absence of pecuniary jurisdiction does not amount to inherent lack of jurisdiction. The learned Civil Judge was of the opinion that on the return of plaint the suit is deemed to be instituted when plaint is presented in the proper Court. It is not a continuation of the old suit. The date of re-presentation was considered as the date of institution of the suit. Additional written statements were filed by the defendants and by order dated 7-2-1996 cases were listed for framing of issues. It was stated that the Court has inherent power under Section 151 of the CPC to correct its own proceedings as it was misled by the defendants. In Ramesh Chander v Bhushan Lal, the Punjab and Haryana High Court has not accepted the request at a belated stage for recording of evidence de nouo by the Court having jurisdiction. De novo trial for recording of evidence was considered necessary after permitting the defendants to file written statements.
7. Section 21 provides that no objection as to the competance of a Court with reference to pecuniary limit of its jurisdiction shall be al-lowed 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. No assistance from the provisions of Section 21(2) can be taken because the defendants have taken the objection at the first instance at the earliest possible opportunity when the matter was before the Munsiff's Court. Munsiff's Court has accepted that plea also and therefore no illegality or impropriety can be considered in returning back of the plaint to the petitioner for submission to the Court having jurisdiction. The Apex Court in the case of Amar Chand Inani, referred to above has held that after the plaint is presented in the proper Court, it is not continuation of a suit. Though these observations were made in the context of the Limitation Act, it may be observed that the trial by the Court having jurisdiction is a fresh trial, and therefore the defendants have a right to submit their written statements or adduce evidence. The judgment given by the Punjab and Haryana High Court in Ramesh Chander'a case, supra, is not applicable because the plaint was not returned in that case and the case was transferred to the Court having jurisdiction. On the basis of the provisions of Section 21(2) of the CPC, the order passed by the Court not having pecuniary jurisdiction may not be a nullity and the Appellate Court or Revisional Court has to reject such an objection. But in view of the fact that re-presentation of the plaint has been considered to be a fresh proceeding in the case of Amor Chand Inani, referred to above, the defendants would get a right to file fresh written statement and to adduce evidence.
8. In Kiran Singh v Chuman Paswan, the question regarding Section 11 of the Suits Valuation Act, 1987 was considered as of technical in nature and not open to consideration by the Appellate Court, though observations were made that defect of jurisdiction would be raised at any point and even in collateral proceedings. This judgment was considered by the Apex Court in Abdulla Bin Ali and Others v Galappa and Others, wherein it was observed that there is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. If the objection regarding pecuniary jurisdiction would have been taken for the first time in the appeal, the position would have been different. Therefore, the right of the defendants cannot be negatived. Though in Joginder Tuli v S.L. Bhatia and Another, it was observed by the Apex Court that normally when the plaint is directed to be returned for presentation to the proper Court perhaps it has to start from the beginning but in that proceedings the evidence had already been adduced by the parties, the matter was tried accordingly. The Trial Court was directed to proceed from that stage at which suit was transferred. No interference was made by the Apex Court. It was in that context because Court fee on the counter claim was not paid and no issue regarding counter claim was framed, permission to pay Court fee on the counter claim and direction to frame issue and opportunity to proceed with the trial was not given by the Apex Court.
9. A contention was taken that the matter is pending since last number of years. It is true that the case of the plaintiff is bound to be delayed, but for that purpose, in the interest of justice, I hereby direct that the written statement shall be filed within 15 days from today and the Civil Judge would complete the evidence within two months thereafter and the suit shall be decided within a period of four months.
10. The order dated 2-7-1996 is set aside. Petitions are allowed.