1. The appellant filed original suit 59 of 1963 in the Court of the Civil Judge, Bangalore against the respondent for recovery of Rs. 13,234-20nP, said to be due on dishonoured cheques. He purported to present the plaint under Rule 2 of Order XXXVII of the Code of Civil Procedure and claimed the benefit of the summary procedure provided under the said order. According to Rule 1 of the order, it applies only to (1) the High Courts of Calcutta, Madras and Bombay, (2) any District Court and (3) any other Court specially empowered in that behalf by the State Government. The defendant-respondent raised the objection that the Civil Judge's Court was not a Court specially empowered as aforesaid. The plaintiff appellant, after taking some adjournments to produce the necessary or relevant notification of the State Government, failed to produce any such notifications. Hence the Civil Judge taking the view that his Court had no jurisdiction to entertain such summary suits in the absence of special authorisation by the State Government, returned the plaint for presentation to proper Court by his order dated 3-3-1964.
On 16-3-1964, the appellant presented the plaint to the District Court. After receipt of summons, the respondent-defendant appears to have raised the contention that merely because the civil Judge's Court was not empowered to act under Order XXXVII of the Code of Civil Procedure, it cannot be stated that the said Court had no jurisdiction to entertain this suit but that actually the suit was entertainable by it. The District Judge accepted this contention and in view of Section 15 of the Code of Civil Procedure which requires a plaintiff to file a suit in the Court of the lowest grade competent to try it, once again returned the plaint by his order dated 18th April 1964. In this appeal directed against that order, the appellant-plaintiff contends that the view taken by the District Judge is wrong in law.
(2) The principal argument on behalf of the appellant is that Section 15 of the Code of Civil Procedure can be pressed against him only if his suit is one which the Civil Judge's Court is competent to try, that because Order XXXVII does not apply to that Court, his suit in respect of which he can claim the benefit of Order XXXVII by virtue of sub-rule(1) of Rule 2 thereof is not one which the Civil Judge's Court is competent to try and that therefore the order of the District Judge is wrong. Rule 2(1) of Order XXXVII reads:
'All suits upon bills of exchange, hundies or promissory notes may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed but the summons shall be in Form No. 4 in Appendix B or in such other form as may be, from time to time, prescribed.'
It is contended that this Rule gives the choice to the plaintiff to avail himself of the procedure prescribed by Order XXXVII if his suit is of the nature referred to therein, and that therefore the same is another reason why section 15 of the Code cannot be pressed against him.
(3) On behalf of the respondent-defendant it is contended that Order XXXVII of the Code merely prescribes a certain procedure in the case of suits answering a particular description, that the said procedure does not in any manner alter the nature of the suit or affect the jurisdiction of a Court and that Section 15 of the Code applies to every suit and makes no exception in favour of suits which may be tried under the procedure prescribed by O. XXXVII by the Court to which the said Order applies. It is stated that suit should be filed in a Court competent to entertain it having regard to the ordinary facts conferring jurisdiction viz., location of the cause of action, residence of the defendant, pecuniary value and the nature of the subject-matter of the suit, and that plaintiff's choice in favour of availing himself of the procedure prescribed by Order XXXVII arises or is available only if the Court in which the suit can in normal circumstances be filed in one to which Order XXXVII applies.
(4) Now, in the absence of any considerations arising out of Order XXXVII alter the nature of the suit or affect the normal jurisdiction which Courts possess under the other provisions of the Code of Civil Procedure. The incidental question raised by or arising out to the arguments on behalf of the appellant is whether the choice given to a plaintiff under sub-rule(1) of Rule 2 of Order XXXVII is a choice between two modes of procedure or between two Courts.
(5) The only question therefore is whether the provision of Order XXXVII alter the nature of the suit or affect the normal jurisdiction which Courts possess under the other provision of the Code of Civil Procedure. The in identical question raised by or arising out of the arguments on behalf of the appellant is whether the choice given to a plaintiff under sub-rule (1) of Rule 2 of order XXXVII is a choice between two modes of procedure or between two Courts.
(6) One of the early cases which dealt with the question is that decided by the Court of Judicial Commissioner of Sind reported in Doulatram v. Halo Kanya (1912) 13 Ind. Cas. 244 (Sind). In that case, a suit on a promissory note for Rs. 65/- cognisable by the Court of Small Causes at Karachi was filed in the Judicial Commissioner's Court with the claim that it may be tried under the procedure prescribed by Order XXXVII. The Court, after examining the legislative history behind Order XXXVII of the Code of Civil Procedure and the general principles governing the jurisdiction of Courts, came to the conclusion that by virtue of Section 15 of the Code of Civil Procedure, the plaintiff was bound to present the plaint to the Court of Small Causes because it was the Court of the lowest grade competent to try that suit and also because the statute governing the court of small causes conferred upon it the exclusive jurisdiction to try all suits on negotiable instruments of the value not exceeding Rs. 1,000/-. It is pointed out that Rule 2 of Order XXXVII which gives a choice of procedure to the plaintiff is silent on the question where the suit should be instituted, that it does not purport to deal with that question at all nor does it modify the ordinary law in that regard.
The said decision was followed by the Chief Court of Lower Burma in Wor Lee Lone v. A. Rahman, A.I.R. 1918 Low. Bur. 135(1). It is observed that Order XXXVII lays down certain rules of procedure which are applicable only to the Chief Court, that such rules of procedure can be applied only after the plaint has been admitted and that the rules do not in any way alter the nature of the suit or the jurisdiction of courts.
(7) The Lahore High Court took a similar view in Bhondu Mal Mohammed Ahmad, A.I.R. 1927 Lah 174. At p. 176 it is observed that Rules 2 to 7 in Order XXXVII of the Code of Civil Procedure do not confer on any of the Courts any pecuniary or territorial jurisdiction but merely recognise the jurisdiction that they already possess and empower them to follow a certain procedure provided for expeditious disposal of suits coming within their purview.
(8) The clear opinion of the Courts in the decisions mentioned above is that the rules in Order XXXVII of the Code of Civil Procedure merely prescribe certain procedure of which the plaintiff can avail himself if his suit answers a particular description and the court in which he has filed the suit is one to which the order applies, and that the said Order or any of the rules contained therein does not in any manner affect the nature of the suit or jurisdiction of a Court.
(9) An opinion to some extent in favour of the view pressed on behalf of the appellant before me appears to have been taken by the erstwhile High Court of Mysore in Gopalakrishnayya v. Navaratna, 1 Mys.L. J. 43. In that case, the maintainability of a suit filed under Order XXXVII of the Code was questioned on the ground that it was filed beyond the period of limitation prescribed for such suits, whereupon the plaintiff made an application requesting that the same may be tried as an ordinary suit. That application was dismissed and a Revision Petition against it was also dismissed by the High Court. The High Court observed that the question related to the maintainability of the suit itself and that because the special procedure claimed was inapplicable to the case, the proper course was to withdraw the summary suit and institute a fresh suit under the regular procedure.
That view, however, was dissented from by a subsequent Bench decision of the same High Court reported in Basalingappa v. Nanjunda Setty, 53 Mys. H.C.R. 1 Venkataramana Rao C. J, discussed the position at some length and expressed the view that it was not possible to see how the character of a suit was altered by the adoption of a particular procedure and that the suit being essentially one for recovery of money due on a promissory note, the character of the suit remained the same whichever be the procedure that was adopted. His Lordship also stated that when a court was perfectly competent to try a suit, the fact that it could not try the suit under a summary procedure did not deprive it of the jurisdiction to try the suit in the ordinary way. It is no doubt open to the plaintiff to ask for the return of the plaint and present it to another Court to which Order XXXVII of the Code applies if that other Court is otherwise competent to entertain the suit.
(10) With respect, it appears to me that the view so taken by the several High Courts in the cases mentioned above is the correct one. That Order XXXVII can have no bearing on the jurisdiction of a court or on the nature of the suit is clear from the provisions of sub-rule (1) of Rule 2 of Order XXXVII on which the appellant places great reliance. If, as contended for on his behalf, he (the plaintiff) has the choice of taking advantage of the summary procedure under Order XXXVII, he also has the liberty of not claiming the benefit of that procedure. If he does not make a choice in favour of the summary procedure the suit may be tried in the ordinary way. If so, the jurisdiction of a Court has to be ascertained in the normal way without any reference to Order XXXVII of the Code. It also follows that the suit is of a nature which can be tried in the ordinary way, which means the nature of the suit is the same whether the plaintiff chooses to claim its being tried in the summary way or permits to be tried in the ordinary way. Secondly, it is obvious that the choice between the two modes of procedure and not between two Courts. Further, a choice between two modes of procedure can arise only if the Court before which that choice is proposed to be made is empowered to adopt either the one or the other mode of procedure. If that Court is not empowered but it is obliged to follow only one mode of procedure, there is no scope for a choice of procedure at all at the hands of the plaintiff. So far as the choice between two Courts is concerned, it is exercisable only as between Courts of the same grade because if the choice is between Courts of different grades. Section 15 obliges the plaintiff to choose the Court of the lowest grade. Although the Court of higher grade is also competent to try the suit, the plaintiff cannot, in view of Section 15, compel that Court to entertain his suit; that Court may either entertain the suit and try it or require the plaintiff to obey Section 15 and return the plaint.
(11) I do not think therefore that the view taken by the District Judge can be said to be wrong.
(12) The appeal is dismissed but without costs.
(13) Appeal dismissed.