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Jagjivan Javherdas Seth Vs. Magdum Ali Deceased by His Heirs Shekh Adam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom487
AppellantJagjivan Javherdas Seth
RespondentMagdum Ali Deceased by His Heirs Shekh Adam and ors.
Excerpt:
suit or appeal filed in a wrong court - return of plaint or memorandum of appeal for presentation in proper court--practice of the high court--civil procedure code (act xiv of 1882), section 373--cancellation of court-fee stamps. - - 7. the fact that plaints have been returned by this court is a fact that we regret, because we are clearly of opinion that such practice is wrong......of redemption in a certain property was sold by auction, and purchased by plaintiff. in this suit plaintiff sues, to redeem the property from the legal representatives of the mortgagee, makdum ali. he estimated his claim at rs. 2,500; but the defendants, in a statement of account given in their written statement, showed that only rs. 2,440 was due on the mortgage, and the lower court found that even this sum was not due. the appeal from the decision of the lower court--that is, the. first class subordinate court at nasik,--there fore, lay to the district court, and not to the high court--cotterell v. stratton l.r. 17 eq. 543. and kondaji bagaji v. anau see anta p. 4-48.2. this appeal must, there fore, be dismissed with costs.3. it may be remarked that if we had held other wise, and.....
Judgment:

Pinhey, J.

1. In execution of a decree against one Shekh Ali, Shekh Ali's equity of redemption in a certain property was sold by auction, and purchased by plaintiff. In this suit plaintiff sues, to redeem the property from the legal representatives of the mortgagee, Makdum Ali. He estimated his claim at Rs. 2,500; but the defendants, in a statement of account given in their written statement, showed that only Rs. 2,440 was due on the mortgage, and the lower Court found that even this sum was not due. The appeal from the decision of the lower Court--that is, the. First Class Subordinate Court at Nasik,--there fore, lay to the District Court, and not to the High Court--Cotterell v. Stratton L.R. 17 Eq. 543. and Kondaji Bagaji v. Anau See anta p. 4-48.

2. This appeal must, there fore, be dismissed with costs.

3. It may be remarked that if we had held other wise, and had held that the value of the property in suit was over Rs. 5,000, we should have had to annul the whole proceedings in the case, and reject the claim (unless the plaintiff asked to with draw the claim) on the ground that the Whole of the proceedings in the case were held without jurisdiction. The suit was instituted in the Second Class Subordinate Court at Thana, and was, on a reference by that Court, transferred by the District Court to the First Class Sub-ordinate Court at Nasik in which it was tried; but if the value of the property was more than Rs. 5,000, the suit could not be Instituted in a Second Class Subordinate Court, and the District Court could not transfer to the First Class Subordinate Court, or to any Court, a suit not properly instituted--Motilal Ramdas v. Jamnadas Javherdas 2. Bom. II.C. R. A.C.J. 4.

4. (In the course of his address to the Court, Mr. Pandurang Kirtikar represented to us that if we held that the appeal in this case lay to the District Court, and not to the High Court, we should, instead of dismissing the appeal, return the memorandum of appeal to him for presentation in the proper Court; and that if, on the other hand, we held that the amount of the suit was in excess of the jurisdiction of a Second Class Subordinate Court, we should return the plaint to him for presentation in the proper Court. In support of his application Mr. Pandurang Kirtikar referred us to cases in which this Court has allowed a plaint to be returned to the plaintiff, after this Court has decided against the plaintiff on appeal and on second appeal.

5. We refused to allow either the memorandum of appeal or the plaint to be returned to the plaintiff, because we are of opinion that the Code of Civil Procedure does not allow of a plaint, or a memorandum of appeal, being returned to the plaintiff or appellant (as the case may be) after a case has been heard on its merits, and just as the plaintiff or appellant discovers that the Court is about to pronounce an adverse decision. In Chapter V of the Code of Civil Procedure provision is made for the return of a plaint to a plaintiff if it has been presented to the wrong Court. But Chapter V prescribes the procedure to be followed for the institution of suits, and before summons is issued, under Chapter VI, to the defendant.There is no pre, vision in the Code of Civil Procedure for the return of a plaint to a plaintiff after it has been admitted, and the court-fee stamps there on cancelled. If 'at any time after the institution of a suit' (to use the language of Section 373) a plaintiff finds that he has instituted his suit in a wrong Court, and he wishes to avoid the dismissal of his suit by the Court, the only course open to him is to apply to the Court for permission to withdraw from the suit under Section 373 of the Code of Civil Procedure.

6. There is, however, nothing in that section, or in the chapter of the Code, of which it forms a part, which warrants the return of the plaint to the plaintiff at this stage of the case. Mr.Pandu-rang Kirtikar represented that, when a plaint is returned, it can be again presented in another Court, and the cost of the court fees be saved; but we think that, even if the Code allowed of our returning a plaint after the court-fee stamps have been cancelled, the plaint could not be again legally presented in any Court with out new stamps being affixed to it. The Executive Government alone has power to remit court fees, and no Court or Judge has, in our opinion, legal authority to admit a plaint which beats only cancelled stamps, or to direct a subordinate Court to accept such a document. And, if the reason of the thing he looked to, there is really no reason why such cancelled stamps should be allowed to be used. The chief object of levying court fees is to defray at the expense of litigants the cost of the judicial tribunals, so that such cost shall not fall on those who do not indulge in the luxury of litigation. After a plaintiff has instituted his suit, and set the machinery of the Court in motion, there is no reason why the institution fees which he has paid should be refunded to him after wards, when he discovers that, either from carelessness or other cause, he ought not to have sued in a particular Court, or ought not to have sued at all. A fortiori, a plaintiff is not entitled to such a refund after his case has occupied a subordinate Court, and the Appellate Court, for a considerable time, and when after his case has occupied the High Court on second appeal for half a day, he finds that the High Court is about to decide that his suit was instituted in a Court which had no jurisdiction to entertain it.

7. The fact that plaints have been returned by this Court is a fact that we regret, because we are clearly of opinion that such practice is wrong. Ten wrongs, however, do not make a right; and With reference to the precedents to which Mr. Pandurang Kirti kar has called our attention, it is sufficient to remark that there is not a single case in which the Court was called on to hear arguments, and formally to decide whether a plaint may or may not rightly be returned to a plaintiff, after it has been admitted to the file of the Court, and the court-fee stamps there on have been punched.


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