Allahabad High Court
Amar Nath Swami vs Ramdeo on 28 January, 2000
Equivalent citations: 2000(2)AWC1110, 2000 ALL. L. J. 3023, 2001 A I H C 445, (2000) 3 CIVLJ 176, (2000) 2 ALL WC 1110, (2000) 39 ALL LR 62, (2000) REVDEC 315, (2000) 1 ALL RENTCAS 499, 2000 ALL CJ 1 665
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. S.C.C. Suit No. 1 of 1998 was filed before the learned Civil Judge. Basti, who has Jurisdiction to try the Small Causes Court valued upto Rs. 25,000. Initially the said suit was valued at Rs. 22.485.30. Subsequently the valuation of the suit was amended to Rs. 29,836.67 exceeding the jurisdiction of the learned Civil Judge. Senior Division. On an application under Section 24 of the Code of Civil Procedure, (hereinafter referred to as the 'Code'), the learned District Judge by its order dated 16.11.1999 recalled the records of the suit and transferred the same to the Court of learned Additional District Judge. Basti, having jurisdiction to try the Small Causes Court Suit above Rs. 25,000. The said application under Section 24 of the Code was registered as Misc. Case No. 804 of 1999 in which the order dated 16.11.1999 was passed.
2. Mr. R. N. Pandey, learned counsel for the applicant contends that the said order cannot be sustained on two grounds--first that the order was passed without any notice to the applicant-defendant and without giving any opportunity to it. The second ground is that applicant-defendant had taken objection to the Jurisdiction of the Court and maintainability of the suit before the learned Civil Judge. Senior Division, as such Section 24 cannot be applied. Inasmuch as such the situation attracts the application of Order VII, Rule 10 at best Order VII, Rule 10A of the Code and it was the duty of the learned Court below to return the plaint for being presented to the appropriate Court having jurisdiction. In elaborating his second ground, he had contended that in exercise of power conferred under Section 24 of the Code, the learned District Judge cannot fill up the lacuna by transferring the suit to a Court of competent jurisdiction. He further contends that unless that suit was not instituted before a proper Court. and if the suit is instituted in a wrong forum, the same cannot be transferred under Section 24 of the Code. In support of his first ground he had relied on a decision in the case of Nirmal Singh v. State of Haryana, (1999) 38 ACC 217. While he cited the decisions in the case of Raja Soap Factory and others v. S. P. Shantharaj and others, AIR 1965 SC 1449 and Murari Lal v. Roman Lal and Others, AIR 1978 All 106, in support of his second contention.
3. Shri P. P. Chaudhary, learned counsel for the opposite party, on the other hand, contended that the suit can be returned under Order VII, Rule 10 or it can be transmitted to the Court of competent jurisdiction under Order VII. Rule 10A of the Code by the learned Civil Judge. At the same time, it was also open the learned District Judge to exercise his power under Section 24(5) of the Code apart from general power of transfer conferred on him under the Bengal. Agra and Assam Civi! Courts Act. In any event, according to him. the question is too technical, Alternatively he argued that even if the Court finds favour with the contention raised by Mr. Pandey, in that event, this Court may also pass appropriate order presenting the plaint or transferring the proceeding before the appropriate court under Order VII, Rule 10B of the Code. He then contends that originally suit was instituted before the appropriate court with the value of Rs. 22.485.34. It is only by way of amendment the valuation was changed to Rs. 29.836.67, therefore, it cannot be said that a suit was instituted in a wrong court but on account of amendment that the jurisdiction was surpassed. It was for the learned District Judge to exercise the power under Section 24(5) of the Code or for the learned Civil Judge either to return the plaint under Order VII, Rule 10 or to transmit the records under Order VII, Rule 10A of the Code. He had relied on the decision In the case of Rajesh Kumar v. M/s. Mohan Cut Piece Stores and another, 1987 (1) AWC 776, in support of his contention.
4. I have heard learned counsel for the parties at length.
5. The fact remains that the suit was instituted before the learned Civil Judge, Senior Division having jurisdiction to try SCC suit upto the value of Rs. 25,000 valuing the suit at Rs. 22,485.34. Admittedly, the said valuation was amended to Rs. 29,836.67 exceeding the Jurisdiction of the learned Civil Judge. Senior Division in respect of SCC suits. It is not disputed that the learned District Judge has Jurisdiction to try the SCC suit valued above Rs. 25,000. Now after the amendment, if the learned Civil Judge lacked jurisdiction, in that event, it was open to it to return the plaint under Order VII. Rule 10 of the Code provided the defendant had not appeared. Order VII, Rule 10 Is subject to the provisions of Rule 10A. Under Rule 10, the Court is empowered to return the plaint subject to the provisions of Rule 10A. Rule 10A provides a situation where the defendant had appeared. Thus reading together, Rule 10 presupposes to be confined to a suit where the defendant has not appeared. If the defendant has appeared, the plaint may be returned for being presented before the appropriate Court. But the Legislature has thought otherwise in respect of a situation when the defendant had appeared. When the Court is of the opinion that the plaint should be returned, it shall before doing so, intimate its decision to the plaintiff. Under sub-rule (2) of Rule 10A of the Code, when such intimation is given to the plaintiff, the plaintiff can make an application before the Court (a) specifying the Court in which he proposes to present the plaint after its return : (b) praying that the Court may fix a date for the appearance of the parties in the said Court ; and (c) requesting that the notice of the date so fixed may be given to him and to the defendant. Sub-rule (3) of Rule 10A of the Code provides where such an application is made by the plaintiff under sub-rule (2) before returning the plaint and notwithstanding that the order for return of plaint was made by It on the ground that it has no jurisdiction to try the suit, the Court may "(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date for appearance". Sub-rule (4) provides for procedure after notice of date for appearance is given under the sub-rule with which we are now not concerned. While sub-rule (5) prescribes that when the application made by the plaintiff under sub-rule (2) is allowed, the plaintiff shall not be entitled to appeal.
6. Whereas Rule 10B empowers the appellate court to transfer a suit to the proper Court when an appeal against the order for the return of plaint is filed and the appeal is allowed.
7. These provisions are procedural in aid of the proceeding. Procedures are handmaid of Justice. Technicalities cannot stand in the way. Admittedly, the Court in which the suit was presented, after the amendment lacked jurisdiction to try it and, therefore, it was either to return the plaint in order to enable the plaintiff to present in a Court having jurisdiction to try the same. It may be done through the procedure under Rule 10A or under Rule 10B as the case may be. At the same time, such a situation can be taken care of under the provisions of Section 24 of the Code, which empowers the learned District Judge to transfer any suit from one Court to another even in case where the Court has no jurisdiction to try it as is provided under sub-section (5). Sub-section (5) of Section 24 of the Code makes abundantly clear that the learned District Judge while exercising power under Section 24 of the Code is also empowered to transfer a suit or proceeding from a Court which has no jurisdiction to try it. Thus, in the present case after the amendment, the learned Civil Judge. Senior Division having no jurisdiction to try it, it can be transferred by the learned District Judge from a Court which has no jurisdiction, in exercise of his power under Section 24(5). There is no doubt about the said proposition.
8. The above view is supported by the decision in the case of Rajesh Kumar, (supra) where this Court has held that :
"3. In exercise of powers under Section 24 sub-clause [5) of the Code, the suit pending in a Court having no jurisdiction to try it can be transferred by the District Judge. It is a different matter that the Court of Civil Judge, Malthabad, could also pass order regarding return of the plaint to the plaintiff for presentation before the competent court in exercise of powers under Order VII, Rule 10A of the Code, but that will not make the impugned order passed by the District Judge, Lucknow, Invalid. The power to transfer case from the Court having no Jurisdiction to try it could be legally exercised by the District Judge under Section 24 sub-clause (5) of the Code and I do not find any infirmity in the impugned order so as to call for interference by this Court in exercise of the revlslonal powers under Section 115 of the Code. The Impugned order, in my opinion, does not suffer from any error of law or jurisdiction."
9. So far as the decisions cited by Mr. Pandey are concerned viz., Nirmal Singh, (supra), cannot be relied for the reason that the same relates to a proceeding under Criminal Procedure Code where the proceeding was sought to be transferred under Section 407 of the Cr. P.C. Be that as it may. Section 24 also requires a notice. Thus, before transferring a case, a notice is necessary on the defendant. But when it is a question of return of plaint, it is not necessary to hear the defendant. If an application under sub-rule (2) of Rule 10A is filed by the plaintiff, in that event, the Court may intimate or give notice of the date fixed in the other Court. Section 24 of the Code postulates passing of an order of transfer after notice to the parties and after hearing such of them as desired to be heard.
10. In the present case, it is alleged that the applicant was not given any notice nor was given any opportunity of being heard as such relying on the principle in the case of Nirmal Singh (supra), Mr. Pandey had contended that the order cannot be sustained and the applicant should be given an opportunity of hearing after notice before passing the order of transfer. It seems that the proposition that has been advanced by Mr. Pandey is a sound proposition and there cannot be any two opinions about the same.
11. But at the same time, it is an admitted position that defendant was aware of the amendment and had been contending that the learned Civil Judge has no Jurisdiction, therefore, about the lack of Jurisdiction the applicant had notice and that according to him the plaint ought to have been returned, therefore, the applicant was fully aware of the case that the plaint has to be presented before the appropriate court. The Intention of Section 24 is to keep the other side apprised of the situation that on being transferred he might not suffer. The applicant could not have any objection If the plaint is returned. He had objection about the trial of the suit by the learned Civil Judge, therefore, he would not suffer any prejudice if the suit is not tried by learned Civil Judge. Thus, he was aware that the suit is to be tried by a Court of competent Jurisdiction. It may be either by way of return of plaint or by way of transfer. Therefore, even if he has not been given any notice, when he was aware of the situation that the suit Is to be tried by a Court of competent jurisdiction, he is not going to suffer except on the question of technicality of returning the plaint. He cannot have any right with regard to the procedural matter. When one procedure is adopted out of two or more procedures prescribed, he cannot be said to have any right to oppose It since It will not cause any prejudice with regard to the merit of the case. It was only on the question of procedural technicalities, the applicant is seeking to be heard. Since both the Order VII, Rule 10 or 10A and Section 24 can be resorted to, therefore, resorting to one would not make an difference if he is given notice of the date fixed for appearance before the transferee court. Therefore, I am unable to accept the contention of Mr. Pandey having regard to facts and circumstances of the case to the extent that absence of notice or hearing would be fatal to this, question.
12. The next limb of the argument of Mr. Pandey that Section 24 can be exercised only in respect of proceeding which has been presented before the appropriate court. If it Is presented before the wrong Court, in that event, such jurisdiction cannot be exercised. This proposition is confined to the question where the power of transfer has been exercised by the Court before which the matter was presented wrongly. It does not apply to the learned District Judge while exercising the power under Section 24.
13. The proposition which has been sought to be advanced by Mr. Pandey reiving on the decision in the case of Raja Soap Factory, (supra) and Murari Lal, (supra) is that in both the cases an appeal was preferred before the High Court which had transferred the suit to the appropriate court on the ground that the appeal ought to have been presented before the learned District Judge and not to the High Court and the petitioner having preferred the appeal before the High Court could not have exercised the power under Section 24 and direct transfer of the appeal to the learned District Judge. But in this case, the suit was originally instituted in the Court of learned Civil Judge, who has jurisdiction at that time when it was presented by reason of subsequent amendment, the Jurisdiction having exceeded. This question cannot be relevant for the purpose of proposition advanced by Mr. Pandey. Then again Section 24 was exercised by the learned District Judge since such an application is maintainable In respect of transfer within same District before the learned District Judge and as such the application under Section 24 having been filed before the said Court, It cannot be said that the Court had exercised the power suo motu or that the Court had no Jurisdiction or that such application was made in a wrong Court, The said two decisions were decisions with regard to the matter of exercise of power under Section 24 of the Code, when the appeal was presented before the High Court on the ground that the appeal ought to have been preferred before the learned District Judge. Therefore, these two decisions does not help Mr. Pandey, having regard to the facts and circumstances of the present case.
14. In view of the observation made above. I do not find any reason to interfere with the order dated 16.11.1999 passed in Misc. Case No. 8 of 199. It is submitted by Mr. Pandey that the applicant had already appeared before the learned District Judge, Basti. Therefore, he Is aware of the dates fixed and as such no further Intimation need be given to the applicant.
15. The revision, therefore, fails and is accordingly dismissed. However, there will be no order as to costs.