Punjab-Haryana High Court
Sewa Singh vs Tara Chand And Anr. on 1 October, 1954
Equivalent citations: AIR 1956 PUNJAB 30
JUDGMENT Kapur, J.
1. This is an appeal brought against an appellate decree of the Senior Subordinate Judge, Jullundur, dated 23-11-1950, reversing the decree of the trial Court which had dismissed the plaintiff's suit for pre-emption on the ground that it was barred by time.
2. The sale of the land in suit was made in favour of Sewa Singh, a minor of three years of age, by Mst. Malan for a sum of Rs. 2,750/- and the sanction of the mutation was on 23-3-1949. Tara Chand, plaintiff-respondent, brought a suit for pre-emption of this sale. On 22-3-1950, he filed an application in the Court of the District Judge to the following effect :
"The petitioner had engaged a counsel at Jullundur and original documents which are relied upon are also at the Sadar (Jullundur). It is therefore prayed that the plaint be sent to any Court at Sadar instead of the Court at Nawanshahr".
This application was handed over to the District Judge himself. There is a dispute between the parties as to whether the plaint was, or was not presented along with the application, but for the purposes of this case I shall assume that it was presented and that seems to be more probable because of the orders which I am going to refer to and the statement of P.W. 1, the Ahlmad of the Court, whose testimony is uncontradicted.
Upon this on 23-3-1950, the learned District Judge issued notice to the respondents for 11-4-1950, on which date objection was taken by the guardian of the vendee against the case being tried at Jullundur and the plaint was therefore ordered to be sent to the Subordinate Judge at Nawanshahr and the parties directed to appear there on 17-4-1950, and they did appear on that date. The plaint bears the date 17-4-1950, and it is surprising that neither the Court of the District Judge nor the Court of the Subordinate Judge to whom the same was sent for trial has taken the trouble of endorsing the respective dates on which it was filed in the Court of the District Judge and the date on which it was received by the Court of the Subordinate Judge at Nawanshahr.
3. An objection was taken that the suit was barred by time and this objection was given effect to by the trial Court. Mr. P. S. Bindra, the Senior Subordinate Judge, on appeal held the suit to be within time and has decreed the suit holding that the limitation runs from the date of mutation and the suit was within time having been filed in the Court of the District Judge on 22-3-1950, and that the value of the property was fixed in good faith and paid and thus the suit has been decreed on payment of Rs. 2,750/-.
4. Submission is made by the appellant that the suit was barred by time and in order to determine that I must refer to certain provisions of the Code of Civil Procedure and to those of the Punjab Courts Act. Under Section 15, Civil P. C., every suit shall be instituted in the Court of the lowest grade competent to try it and Section 26 of the Code provides that it shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Under Order 4 Rule 1 every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.
5. Under Section 34, Punjab Courts Act every District Judge has the power to distribute business and Section 37 of this Act provides-
'37. A District Court may, with the previous sanction of the High Court delegate to any Subordinate Judge in the district, the power conferred on a District Court by Sections 33 and 34, of this Part and Section 24, Civil P. C., to be exercised by the Subordinate Judge in any specified portion of the districts, subject to the control of the District Court."
As I read these various sections, it appears to me that the power of the District Judge or the Court or officer who has been appointed to receive the plaints is merely a ministerial one and when the power has been given by the District Judge to another Court or officer the litigant must present the plaint to him.
It was so held by the Lahore High Court in -- 'Sharam Singh v. Sadhu Singh', AIR 1928 Lah 484 (A), where it was said that where a Judge receives plaint for distribution to proper Courts while so acting he is not acting in the capacity of a Court but ministerially for the convenience of the litigants and that his discretion overrides the provisions of Section 15, Civil P. C. in so far as he can direct a suit to be tried by a Court of higher jurisdiction than that provided in Section 15, but no such discretion is conferred on the suitor who remains bound by the provisions of the Code of Civil Procedure.
In that case the plaint was presented to the Senior Subordinate Judge on 11-7-1919. The valuation of the suit as put on the plaint was such that it was triable by the Court of a Subordinate Judge of the Second Class and the Senior Subordinate Judge sent the case to such a Court. On objection being taken that the value was more it was held on parties' agreeing that the suit was triable by the Court of a Subordinate Judge of the First Class and the plaint was returned for presentation to the proper Court under Order 7 Rule 10, Civil P. C. on 6-1-1920.
The plaintiff made up the deficiency in the court-fee & presented the suit in the Court of the Senior Subordinate Judge on 5-2-1920, and the point for decision was that if the suit was taken to be instituted in the Court of the Senior Subordinate Judge when the plaint was first presented to it, then the institution of the suit was on 11-7-1919, and was well within time and that if it was to be taken to be instituted in the Court of the Subordinate Judge of the First Class on 5-2-1920, the suit was barred by time.
After referring to Section 15 and Rules 1 and 2, Order 4, Civil P. C. and Sections 34 and 37, Punjab Courts Act, it was held that the Senior Subordinate Judge, appointed to receive plaints for the purpose of distribution acts ministerially and does not receive them as a Court and therefore it could not be said that all suits which were instituted in the Court of the Senior Subordinate Judge in the first instance were instituted in his Court and receiving by the Senior Subordinate Judge could not be said to be institution in the Court of that officer and that a Court takes cognizance of a plaint and is seized of the case when necessary entries are made in the register and as I have said in a case like that a Division Bench of the Lahore High Court held that the institution was on 5-2-1920.
6. Mr. Karam Chand Nayar relies on two rules appearing in Chap. 1-B, Rules and Orders of the High Court, Vol. I. Rule 2 empowers the Courts in sitting at a distance from the headquarters of the district to receive plaints and petitions direct under general directions of the District Judge or the Subordinate Judge, if so empowered under Section 37, Punjab Courts Act. It is really on Rule 3 that he mainly relies. Rule 3(i) reads:
"3(i) Plaints and petitions presented at the headquarters of a District will be received and distributed by the District Judge who may delegate this power under Section 37, Punjab Courts Act to any Subordinate Judge and should always do so when it is for the convenience of the litigants. Regard should be had to the provisions of Sections 15 and 20 and Order 4, Rule 1, Civil P. C., in framing directions regarding the reception of civil suits."
Mr. Nayar submits that according to these rules the power to receive plaints is vested both in the District Judge as well as in the Court sitting at a distance from the headquarters and that the plaintiff was justified in taking the plaint to the Court of the District Judge and it was for the District Judge to distribute the plaint to any Subordinate Judge within his jurisdiction but there are two arguments against it. First of all there is a specific rule that suits shall be filed in the Court of the Judge sitting at a distance from the headquarters and specific reference is made even in this rule to Section 15, Civil P. C. and Order 4, Rule 1 of that Code.
Besides, the power of distribution has through-out the Punjab been delegated to the Senior Sub-ordinate Judges and ordinarily, even if this was a mistake under which the plaintiff was labouring, the plaint should have been taken to the Senior Subordinate Judge, who is the proper person for the distribution of these plaints. Moreover the application shows, although it it not headed under any particular section, that it was more for purposes of transfer to the Court of a Subordinate Judge at the headquarters than anything else.
7. Reliance is placed by Mr. Nayar on a judgment of the Sind Judicial Commissioner's Court in -- "George Benjamin Hampson v. R. S. Jeewanmall Bros', AIR 1935 Sind 225 (B), where the question was as to when a suit is taken to have been instituted and the point to be decided was which is the previously instituted suit. Reliance was there placed on the rule which I have quoted from Vol. I, Chap. 1-B, Rules and orders of the Lahore High Court. As the case there stands the interpretation of Rupchand Bilaram A.J.C. is, if I may say so with respect, perfectly correct. That learned Judge did not know that in the Punjab the power of distribution had been given to the Senior Subordinate Judge and it must have been that the suit was filed in the Court of the Senior Subordinate Judge who sent it to another Judge and even if the suit was filed in the Court of the District Judge the question does not arise because he sent it under his powers of distribution to a Court of Subordinate Judge First Class and it was held that for purposes of Section 10, Civil P. C., the suit was instituted on the date when it was presented to the District Judge.
8. Reliance was then placed on a judgment of the Madras High Court in -- 'Ramaswami Iyer v. Veerarayan Raja', AIR 1941 Mad 711 (C), where it was held that presentation of a plaint to a Court which has no jurisdiction cannot be said to be institution of the suit and that a sut will be deemed to be instituted when the plaint is presented to the Court having proper jurisdiction and that Court accepts the plaint as being in order. I do not know what exactly the law is or the rules are in that Court. But as the head-note is stated, which is a proper summary of what was held, the statement of the law if I may say with respect, must be taken to be correct.
9. Reliance is next placed on a judgment of the Calcutta High Court in -- 'Bejoy Kumar Sen v. Kusum Kumari Debi', AIR 1929 Cal 315 (D), where at pp. 317-318 Section 14, Limitation Act was held to be applicable.
10. As I read the law the Code requires that a suit shall be instituted in the Court of the lowest jurisdiction. For the convenience of litigants the Punjab Courts Act has given the power to the District Judge to distribute work and that power of distribution has been delegated to the Senior Subordinate Judge and therefore in regard to suits which are triable at the headquarters the plaints are presented to the Senior Subordinate Judge of the district and this is taken to be the date of institution and rightly so because, if an officer is appointed to receive plaints, the date of institution must be taken to be that on which the plaint is presented to him. It is for him to send it to another Court which would have jurisdiction to try the suit, but in this matter the District Judge the Senior Subordinate Judge or any other officer appointed acts ministerially.
But when the Code requires that the suit shall be instituted in the Court of the lowest jurisdiction, and the rules made provide that in cases which are triable at a place away from the headquarters the plaints shall be presented in that Court, in my opinion it is not left to the litigant to choose any Court that he likes, and in this I am fortified by the opinion of the Division Bench of the Lahore High Court in AIR 1928 Lah 484 (A), to which I have made reference, and therefore if the litigant does not follow the ordinary rule, the presentation of the suit would be on a date when the plaint is sent to the proper Court and the institution under Order 4 Rule 1, Civil P. C., must be taken to be on the date when it is instituted in that Court.
11. It is then submitted that Section 14, Limitation Act, applies in this case because the plaintiff 'bona fide' filed his suit in the Court of the District Judge and if the District Judge thought that he had no jurisdiction it should have been returned to him there and then or at least the next day and that nobody should suffer because of the mistakes of the Court.
Now, Section 14 provides for exclusion of time spent in proceedings taken 'bona fide' in a Court without jurisdiction. In the circumstances of this case I am unable to hold that the provisions of this section are applicable and that there was anything bona fide in filing the application in the Court of the District Judge. Every Advocate appearing in the District Courts should know that the power of distribution is vested in the Senior Subordinate Judge, and not in the District Judge and also that the suits are to be instituted in the Court of the lowest jurisdiction, In my opinion therefore in the present case even though the words may be "subject to the control of the District Judge" the suit cannot be held to be instituted except on 17-4-1950 and I would therefore allow this appeal, set aside the decree of the Senior Subordinate Judge and restore that of the trial Court. In the circumstances of this case the parties will bear their own costs throughout.