1. The plaintiff in this case sued to set aside a sale of certain lands and to recover possession of those lands on the ground that on his having given security for the appearance of the judgment-debtors in another suit, proceedings were taken without his knowledge, resulting in the attachment and sale of the lands in question.
2. The lands admittedly are situate within the jurisdiction of the Subordinate Judge of Gadag, and not within the local limits of the ordinary jurisdiction of the First Class Subordinate Judge of Dharwar, in whose Court this suit was instituted.
3. The First Class Subordinate Judge decided the case in the plaintiffs favour.
4. On appeal the District Judge set aside the decree of the Court of first instance, and holding that as the case was not one falling within the special jurisdiction of the First Class Subordinate Judge of Dharwar, and was not within the local limits of his ordinary jurisdiction, it had been presented in the wrong Court, and thereon directed the return of the plaint for presentation in the proper Court.
5. The plaintiff appeals against this order.
6. His pleader relies on Nidhi Lal v. Mazhar Husain ILR (1884) All. 236, Matra Mondal v. Hari Mohan Mullick ILR (1889) Cal. 155 and Krishnasami v. Kanakasabai ILR (1890) Mad. 183.
7. The defendant admittedly is not resident within the local limits of the ordinary jurisdiction of the Dharwar Subordinate Judge's Court.
8. Thus the proviso to Section 16 of the Code of Civil Procedure is inapplicable.
9. The plaintiff was given an opportunity of amending his plaint, by omitting the prayer for possession ; but declined to avail himself of that opportunity, fearing it might prejudice him in any subsequent suit that might become necessary.
10. The First Class Subordinate Judge held that, inasmuch as the order to be set aside was an order passed by the Court in which he presides, he alone had jurisdiction to try a suit to set aside that order.
11. No authority has been cited in support of that position. The case of Nidhi Lal v. Mazhar Husain, cited for appellant, decided that the object of Sections 19 and 20 of the Bengal Civil Courts' Act, 1871, was to create in the District Judge, Subordinate Judge and Munsiff concurrent jurisdiction upto Rs. 1,000.
12. On turning to the Act cited, I find that Section 18 empowers the Local Government to fix and vary the local limits of the jurisdiction of Civil Courts under that Act, and further provides that where more than one Subordinate Judge is appointed to any District and where more than one Munsiff is appointed to a Munsifi, the Judge of the District Court may assign to each such Subordinate Judge or Munsiff the local limits of his particular jurisdiction within such District or Munsifi.
13. Then Section 19 declares the jurisdiction of each Subordinate Judge to extend, subject to Section 6 of the Civil Procedure Code, to all original suits cognizable by the Civil Courts. And Section 20 extends to all like suits in which the amount or value of the subject-matter in dispute does not exceed Rs. 1,000.
14. The Civil Procedure Code referred to was Act VIII of 1859 and Section 15 of the present Code corresponds with the Section 6, mentioned in Section 19 of Act VI of 1871.
15. The result was that in the absence of any assignment of particular jurisdiction under Section 18 of Act VI of 1871, the District Judge, subordinate Judge and Munsiff would have concurrent jurisdiction in respect of all suits not exceeding Rs. 1,000 in the value of their subject-matter, which were within the local limits of the Munsiff's jurisdiction.
16. In that case, therefore, the Subordinate Judge, who tried the case, had jurisdiction in respect of the subject-matter under the provisions of the Legislature; and it was merely a question of procedure and not of jurisdiction whether the suit should have been filed in the Court of the lowest grade competent to try it.
17. That, however, unfortunately is not the case in the present instance. For, the First Class Subordinate Judge, in this instance, has no jurisdiction given him by law to try any case relating to immoveable property outside the local limits of his ordinary jurisdiction unless the value of the subject-matter is Rs. 5,000 in value.
18. The cases of Matra Mondal v. Hari Mohun Mullick ILR (1889) Cal. 155 and Krishnasami v. Kanalcasabai ILR (1890) Mad. 183 go no further than the Allahabad case.
19. Therefore, however regrettable the result may be, as entailing the retrial of the case on this very technical ground of objection the law, as it stands, appears to leave me no alternative but to confirm the order of the lower appellate Court. The costs should, I think, however, abide the ultimate result of the suit, unless the plaintiff fails to present the plaint in a Court of competent jurisdiction in which case the order of the lower Court in respect of costs up to the date of its decree will stand unvaried and the plaintiff will have to pay the costs of the appeal in this Court.