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P.B. Rammohanreddy and anr. Vs. Chintal Achaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn No. 1494 of 1970
Judge
Reported inAIR1974AP185
ActsAndhra Pradesh (Telanganna Area) City Civil Courts Act, 1954 - Sections 11 and 12; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 7, Rule 10 - Order 22, Rule 3
AppellantP.B. Rammohanreddy and anr.
RespondentChintal Achaiah and ors.
Appellant AdvocateHarihar Rao Deshpande, Adv.
Respondent AdvocateA. Satyanarayana, ;S. Dasaratharamireddy, ;A. Balreddy and ;G. Sriramarao, Advs.
Excerpt:
civil - legal representative - sections 11 and 12 of andhra pradesh (telanganna area) city civil courts act, 1954 and order 1 rule10, order 7 rule 10 and order 22 rule 3 of code of civil procedure, 1908 - suit presented in court on 15.09.1967 - plaintiff died after six days institution of suit - interim application filed by legal representatives to represent deceased plaintiff - suit returned on some objections - suit was represented on 01.08.1968 after compliance of objection - interim application dismissed by assistant judge holding that suit was considered to be instituted on 01.08.1968 after death of plaintiff - appeal preferred against order - suit was filed on bonafide belief that plaintiff was alive - held, interim application to be considered under order 1 rule 10. - - .....order1. the minors ram mohan reddy and jayashree, son and daughter of one balwanth reddy, per maternal grand-father bala reddy as their next-friend filed a suit in the court of the chief judge, city civil court, against their mother, anasuya devi, as defendant no. 1 and 25 others who are the alienees of their joint family properties. the suit was filed for a declaration that the alienations of the joint family properties, effected by their father, were not binding on them, and for setting aside those alienations. the mother of the plaintiffs i.e., defendant no. 1 remained ex parte but the other defendants contested the suit.2. the plaint was presented in the court of the chief judge, city civil court, hyderabad on 15-9-1967. for the purposes of payment of court-fee and jurisdiction the.....
Judgment:
ORDER

1. The minors Ram Mohan Reddy and Jayashree, son and daughter of one Balwanth Reddy, per maternal grand-father Bala Reddy as their next-friend filed a suit in the Court of the Chief Judge, City Civil Court, against their mother, Anasuya Devi, as defendant No. 1 and 25 others who are the alienees of their joint family properties. The suit was filed for a declaration that the alienations of the joint family properties, effected by their father, were not binding on them, and for setting aside those alienations. The mother of the plaintiffs i.e., defendant No. 1 remained ex parte but the other defendants contested the suit.

2. The plaint was presented in the court of the Chief Judge, City Civil Court, Hyderabad on 15-9-1967. For the purposes of payment of court-fee and jurisdiction the suit was valued at Rs, 1,000/-. By virtue of the powers vested in him, under Section 12 of the Andhra Pradesh (Telegana Area) City Civil Court Act (No. 36) of 1954 (hereinafter referred to as 'the C.C.C. Act') for the distribution of the business of his court among the various Judges thereof the Chief Judge, City Civil Court, allotted the said suit to the II Asst. Judge, City Civil Court, Hyderabad.

3. Six days after the presentation of the plaint in the court of the Chief Judge, City Civil Court i.e., on 21st September, 1967 the 1st plaintiff, Ram Mohan Reddy died. A petition under Order XXII, Rule 3, C. P. C. for bringing the legal representatives of the deceased 1st Plaintiff on record, was filed on 15-11-1967. It was alleged in L. R. petition that the 1st plaintiff died leaving behind him his sister, plaintiff No. 2 and his mother defendant No. 1, as his heirs; that both of them were already on record as parties to the suit and that, defendant No. 1 may be transposed from the array of the defendants to the array of the plaintiffs. The suit and the petition were not till then, numbered.

4. On 29-11-1967, the plaint was returned by the II Assistant Judge, City Civil Court, Hyderabad for compliance of some office objections. ON 5-12-1967 the plaint was represented in the same Court after represented in the same Court after complying with the office objections.

5. The 2nd Assistant Judge, City Civil Court then raised an objection to the valuation of the suit, found that he had no pecuniary jurisdiction to try the suit and accordingly returned the plaint and the L. R. petition on 11-7-1968 for presentation to a proper Court.

6. The suit was then valued at Rs. 5,500/- and the plaint was represented before the Chief Judge, City Civil Court on 1-8-1968. Under Section 12 of the C. C. C. Act the Chief Judge, City Civil Court, allotted the suit the Court of the First Additional Judge, City Civil court, Hyderabad. On 23-10-1968, the suit was numbered in the Court of the First Additional Judge, city Civil Court, as O. S. 88/68. When the pendency of the L. R. petition which was already on record was brought to his notice the First Additional Judge, City Civil Court, endorsed on it that it was presented on 23-9-1969 and ordered it to be numbered. The I. A. was accordingly numbered as I. A. No. 347/69.

7. The First Additional Judge, City Civil Court, dismissed the L. R. Petition holding that the suit must be considered to have been instituted on 1-8-1968 when it was presented to the proper court and, on that date, the Ist plaintiff was already dead and hence the question of bringing his legal representatives on record, under Order XXII, Rule 3, C. P. C. did not arise. It could neither the considered as a defect in any proceedings of the suit which could be recited under Section 153, C. P. C. nor as a suit filed in the name of wrong, plaintiff within the meaning of Order 1, Rule 10,C. P.C. and hence the petition under Order XXII, Rule 3, C.P.C. could neither be considered and allowed under Section 153 , C.P.C. nor under Order 1, Rule 10, C.P.C. Aggrieved by the said order dismissing the L.R. Petition the petitioners have come up in revision to this Court.

8. The learned counsel, Sri Harihar Rao Deshpande , appearing for the revision petitioners contended that the City Civil Court is one court and the suit was instituted by presenting the plaint to the Chief Judge, City Civil Court, on 15-9-1967. On that date the 1st plaintiff was alive. The subsequent return and representation of the plaint did not affect the original date of institution. They were merely continuation proceedings of the suit. Hence the date of institution of the suit was non 1-8-1968, but it was 15-9-1967. The lower Court erred in dismissing the L. R. Petition filed under Order XXII, Rule 3 of the Civil Procedure Code. Even assuming, without admitting, that the date of institution of the suit was 1-8-68 and not 15-9-1967, still the institution of the suit in the name of a deceased person was a defect or an error in a proceeding in the suit and it could be rectified under Section 153, C. P. C. The learned First Additional Judge, City Civil Court, should in any case, have considered that the suit was instituted on account of a bana fide mistake, in the name of a wrong plaintiff under Order 1, Rule 10, C. P. C. and even in such a case he should have allowed the petition.

9. As against the above argument the learned counsel appearing for the 1st respondent. Sri A. Satyanarayana, contended for that representation to the proper court, the date of representation of the plainti would be the date of the institution of the suit. On 1-8-1968, when the plaint was represented in the proper court, and which was the date of the institution of the suit, the 1st plaintiff was already dead. The institution of the suit in the name of the dead person could neither be considered as a defect or an error in any proceeding of the suit nor as an institution of the suit in the name of a wrong plaintiff which could be rectified either under Section 153, C. P. C. (in the former case) or under Order 1, Rule 10, C. P. C. (in latter case). The first Additional Judge, therefore rightly dismissed the L. R. Petition.

10. In support of their respective contentions the learned counsel relied upon various rulings, which will be referred to at appropriate place in the judgment.

11. The arguments advanced by the learned counsel, Sri A. Satyanarayana were adopted by the other counsel, appearing for the other respondents.

12. Sections 15 - 20 of the C. P. C. regulate the forum for the institution of suits, Section 15 requires that every suit shall be instituted in the Court of the lowest grade, competent to try it. The object of the section is that the court of higher grade should not be over crowded with suits. This rule is a rule of procedure and not of jurisdiction. The institution in a court of higher grade of a suit which ought to have been instituted in the court of a lower grade is only an irregularity of procedure covered by Section 99 of the Civil Procedure Code , and does not affect the jurisdiction of the Court (See Nidhilal v. Mazhar Hussain, ILR (1885) 7 All 230 at p. 233 (FB)). It is therefore clear that where a suit which ought to have been instituted in a court of a lower grade is instituted in the court of a higher grade , the latter cannot be said to have no jurisdiction to try the suit though as a matter of procedure , the plaint ought to be returned for presentation to the proper court. Where in such a case the plaint is returned for presentation to the proper court the date of institution of the suit is the date on which the plaint was originally presented in court, and not the date on which it was represented after the return.

13. The jurisdiction or the competency of a court to try a suit is of three kinds. One is with reference to the nature of the suit, the second is with regard to its pecuniary jurisdiction, and the third is with regard to its territorial jurisdiction. Exemption of certain suits , say the suits relating to immovable properties etc., from the cognizance of small causes court, relates to the jurisdiction of the Small Causes Court with reference to the nature of the suit. If the court's pecuniary jurisdiction is fixed at say Rs. 5,000/- suits of the value more than Rs. 5,000/- cannot be entertained or tried by it. This jurisdiction relates to the pecuniary jurisdiction of the court. Section 16, C.P.C. prescribes that the suits relating to immovable property , partition of immovable property, for sale and redemption of a morgage of immovable property or for the enforement of a charge on the immovable property should be instituted in a court within whose jurisdiction the immovable property is situated or in a court in which any portion of the immovable property is situated (Section 17) or in case it is uncertain as to within the local limits of the jurisdiction of which of the two or more courts the immovable property is situated the suit can be filed in any one of those courts (Section 18, C.P.C.) Suits for compensation or damages for personal injury or to movable properties or other suits can be filed either in the court within whose jurisdiction the cause of action or any part of it arose, or in the court within whose jurisdiction the defendant resides (Sections 19 and 20 of the C.P.C.) If a suit is filed in violation of any of these sections i.e., Sections 16 - 20 of the C.P.C. it would affect the competency of the court to try such suit.

14. This distinction must be well borne in mind between the two cases viz., (I) Where a suit which should have been instituted in a court of a lower grade is instituted in a court of higher grade and (ii) where a suit which should have been instituted in court of higher grade is instituted in the court of lower grade. In the former case it is only an irregularity of procedure, but in the latter case it affects the competency or the jurisdiction of the Court.

15. Let me illustrate this by an example. Suppose a court of a higher grade is vested with powers to try all suits of a civil nature of unlimited value, whereas a court of lower grade can try only a suit of the value of Rs. 5,000/-. If a suit the value of which is Rs. 5,000/- and which should have been instituted in the court of the lower grade is instituted in the court of a higher grade which has jurisdiction to try all suits of unlimited value it would be a case of an irregularity of procedure and if the court of the higher grade returns the plaint for presentation to the court of the lower grade the date of presentation of the suit would be the original date of institution of the suit in the court of the higher grade and not the date on which the suit is represented in the court of the lower grade.

16. Supposing the value of the suit is Rs. 10,000/-. According to the valuation the suit should have been filed in the court of the higher grade but by mistake it was filed in the court of a lower grade and the court of the lower grade returns the plaint for representation to the proper court. In such a case the court of the lower grade would not be competent or have pecuniary jurisdiction to try a suit of the value of Rs. 10,000/- The Court of the lower grade would therefore be incompetent to try the suit. In such a case the date of representation of the suit in the court of the higher grade i.e., the proper court would be the date of institution of the suit.

17. Bearing these principles in mind, I would deal with the contentions raised by the learned advocates appearing for the parties.

18. The law relating to Civil Courts in the Telangana area of the State of Andhra Pradesh, has been reenacted in the Andhra Pradesh (Telegana Area) City Civil Court Act (No. 36) of 1954. The classes of Civil Courts and the pecuniary jurisdiction of the Judges thereof in original suits , are mentioned in Section 11 of the said act , thus :-

IN THE CITY CIVIL COURT :

1. the courts of First and Second Judge : With unlimited jurisdiction.

2. the courts of 3rd and 4th Judges : With jurisdiction not exceeding rupees five thousand.

3. the courts of 5th Judge : With jurisdiction not exceeding Rs. 2,000/-.

19. Under Section 12, the 1st Judge of the City Civil Court is empowered to make such arrangements as he may think fit for the distribution of the business of the court among the various Judges thereof.

20. Under Section 16 (1) of the said Act an appeal from a decree or order of the First Judge or the Second Judge of the City Civil Court, will lie to the High Court. Under Section 16 (2) of the Act, an appeal from a decree or order of the other Judges of the City Civil Court, will lie to the 1st Judge or the Second Judge if the Second Judge , is authorised to discharge the functions of the first Judge of the City Civil Court.

21. Under the scheme of reorganisation of the Courts the Government of Andhra Pradesh issued G.O. Ms. No. 444, dated 14-3-1958, combining the two cities of Hyderabad and Secunderabad into a single unit, under the jurisdiction of the City Civil Court, Hyderabad and also prescribing the strength of its officers. Clause (2) of the said Notification reads thus :

'(2) The proposal of the High Court that there should be common courts for the twin cities of Hyderabad and Secunderabad is approved. The new set-up for the administration of civil and criminal justice in the two cities in future will be as follows :-

CIVIL COURTS : (1) (a) City Civil Court : The twin cities of Hyderabad and Secunderabad should be combined into a single unit under the jurisdiction of the City Civil Court, Hyderabad. This court should have a strength of the following officers to start with :

(1) One Chief Judge of the grade of District Judge.

(2) One Additional Judge of the grade of Dist. Judge.

(3) Four Additional Judges of the grade of sub-Judges.

(4) Three Additional Judges of the grade of Munsif-Magistrates.'

22. The jurisdiction of the Chief Judge, City Civil Court and Additional Judges in the grade of Sub-Judges who will be having unlimited pecuniary jurisdiction is extended over the area now comprised within the jurisdiction of the District Court Hyderabad District. The six munsiffs in the said area will be under the appellate jurisdiction and control of the Chief Judge, City Civil Court, and will dispose of cases triable by Munsifs.

23. The Officers of the grade of the Sub-Judges should be invested with unlimited ordinary civil jurisdiction as in Andhra and Officers of the grade of Munsif should be invested with pecuniary jurisdiction upto Rs. 5,000/-. See at page 225 in Wimco, Madras v. H.A.H.M. Ehsan Ali, (1961) 2 Andh WR 255 = (AIR 1962 Andh Pra 127).

24. In Prabhakar Rao H. Mawle v. Hyderabad State Bank, : AIR1964AP101 the Second Judge, City Civil Court, passed a decree against Prabhakar Rao H. Mawle . In execution proceedings of that decree the matter went to the High Court in connection with the transfer of the execution proceedings. The transfer-petition was dismissed and the records were sent back to the First Additional Judge, City Civil Court in 1960. The First Additional Judge , placed the file before the Additional Chief Judge for hearing or for being transferred to some other judge. The Additional Chief Judge, referred the matter to the Chief Judge, City Civil Court, who withdrew to his own file the execution petition from the file of the First Additional Judge, City Civil Court. The contention advanced by the judgment-debtor was that the First Additional Judge, City Civil Court had no jurisdiction to entertain the first execution petition because the decree put in execution was passed by the Second Judge, City Civil Court. Repelling that contention, a Division Bench of this Court consisting of P. Chandra Reddi, C.J., and Gopalakrishnan Nair, J. ruled that

'................. The 1st Additional Judge , City Civil Court , is not a separate court. He is only one of the Judges of the City Civil Court. The decree is passed by the City Civil Court. It is therefore not correct to say that the First Additional Judge has no jurisdiction to entertain the execution petition.'

Dealing with the next contention that the second execution petition should not have been filed before the IV Additional Judge but should have been filed only before the Chief Judge, the latter ought to have sent it on to the former as a matter of distribution of the Civil business of the City Civil Court, P. Chandra Reddy , C.J., observed thus :-

'.............. We do not consider this to be an argument of substance. It is a matter touching only the ministerial side of the administration of the City Civil Court and not inherent jurisdiction. Moreover in the absence of any order distributing the business of the Court among the various Judge thereof in such a manner as to preclude the Fourth Additional Judge, from entertaining the execution petition, the judgment-debtor cannot complain of any irregularity on the part of the Fourth Additional Judge in entertaining the execution petition in question. The Fourth jurisdiction. He has also adequate pecuniary jurisdiction. Therefore in the absence of any order to the contrary by the Chief Judge of the City Civil Court, under the provisions of Section 12 of the Hyderabad Civil Courts Act, it was competent for the Fourth Additional Judge to entertain E. P. No. 49 of 1960 (Vide Chaturbhuj Marwari v. A. W. Walkar. (1909) 4 Ind Cal 150 (Cal) and Remeshwar v. Jagadeswar, AIR 1919 Pat 367).

25. In Vidyamba v. Venkayamma, (1958) 1 Andh WR 40 = (AIR 1958 Andh Pra 218) Umamaheswaram and Krishna Rao, JJ., held that what Section 15, Civil Procedure Code provided was that every suit shall be instituted in the court of lowest grade competent to try it. Competency contemplated by this Section is only pecuniary competency and there was no lack of jurisdiction for the superior court to try the suit.

26. In R. Kunjukrishnan v. R. Viswanathan, : AIR1964Ker314 the suit was instituted in a District Court. The plainti was returned by that court, on the ground of pecuniary jurisdiction, for presentation to the Munsif's Court. A single Judge of the Kerala High Court held that the suit must be deemed to have been validly instituted on the date of the presentation of the plaint in the District being barred by limitation, on the date of its presentation to Munsif's Court could arise.

27. In Labhuram v. Charnu Fauju, AIR 1929 Lah 409 a suit for declaration, valued at Rs. 1,000/- for jurisdiction was properly presented on 4th October, 1901, in the court of the District Judge. The District Judge sent the suit fro trial to a court subordinate to him, and there the valuation of the suit was raised in some obscure way to Rs. 2,000/-. The Subordinate Court then ordered the return of the plaint for presentation to proper court on 17th January, 1902. The plaintiff represented his plaint, as soon as he got it bank, in the court of the District Judge on 24th January, 1902. On those facts it was held that the plaint was presented properly in the court of the District Judge in the first instance and that he in the ordinary course of distributing plaints properly sent it to the subordinate court which had jurisdiction to try the suit. The fact that that court had the valuation raised somehow or other wrongly to Rs. 2,000/- and returned the plaint thereafter, cannot bring it about that the plaint was only properly presented on 24-1-1902, when it was again put in before the District Judge.

28. From a combined reading of Section 11 of the C. C. C. Act along with G. O. Ms. No. 444, dated 14-3-1958, it is clear that the whole of the twin cities of Hyderabad and Secunderabad were combined into a single unit under the jurisdiction of the City Civil Court, Hyderabad. All the civil work in the twin cities of Hyderabad and Secunderabad was to be tried and disposed of by the City Civil Court. The City Civil Court is therefore only one unit for the entire area comprised in the twin cities. Under Section 12 of the C. C. C. Act, the Chief Judge, has the power and jurisdiction to distribute the work of the City Civil Court among the various Judges of the City Civil Court. If all the suits to be filed in the City Civil Court were not filed in the court of the Chief Judge, City Civil Court, then the question of distribution of the work of the City Civil Court, among the various Judges thereof, does not arise at all. The question of distribution and allotment of work of the City Civil Court among the various Judges thereof arises only when all the Civil Suits, arising within the twin cities of Hyderabad and Secunderabad are filed in the court of the Chief Judge, City Civil Court.

29. The combined effect of all the above decisions cited by the learned counsel for the revision-petitioners is that the City Civil Court is one court, and when a suit is instituted in the court of the Chief Judge, has got power and jurisdiction to distribute the business of his court among the other Judges of the City Civil Court. If the plaint was presented in the court of the Chief Judge, City Civil Court, who allotted it to another Judge of that court and that court either rightly or wrongly returned the plaint for presentation to a proper court the original date of institution of the suit in the Chief Judge's court would be the material date of the filing of the suit and not the date on which the plaint is presented to the proper court in pursuance of the order of the other Judge of the City Civil Court.

30. I will consider the decisions cited by the learned counsel for the respondents. In Satyanarayana Murty v. Subbarao, AIR 1939 Mad 724 Venkatramana Rao J., held that where a plaint is presented in a court which has no jurisdiction and it is represented after return by that court in a court which has jurisdiction the presentation in the latter court must be deemed to be the date of its institution in the said court. The proceedings in the former court are of no avail and the proceedings in the latter cannot be treated as a continuation of the proceedings in the former suit.

31. In coming to that conclusion the learned Judge relied upon the decision in Ramdutt Ramkishen Dass v. E. D. Samson & Co., AIR 1929 PC 103 and Hirachand Succaram v. G. I. P. Railway Co., AIR 1928 Bom 421.

32. In Ammar Chand Inani v. The Union of India, : [1973]2SCR684 Ramaswamy v. Veerarayan Raja, AIR 1941 Mad 711 and AIR 1928 Bom 421 (supra) and Ramkishun Rai v. Ashirabad Raj, : AIR1950Pat473 it has been held that when the plaint was returned for presentation to the proper court and was presented in that court the suit can be deemed to be instituted in the proper court only when the plaint was presented in the court. In other words the suit instituted by presentation of the plaint returned, was not a continuation of the suit filed in the returning court for proper presentation.

33. In Chandrayya v. Seethanna, AIR 1940 Mad 689 a Division Bench of the Madras High Court, consisting of Leach C. J. and Krishnaswami Ayyangar J. reversing the decision held that a court which had no jurisdiction could not pass orders in the suit beyond directing the plaint to be presented to the proper court and giving a direction with regard to the costs incurred upto the time of the return of the plaint, and that the suit must be deemed to have been instituted on the date of representation of the amended plaint which the court had jurisdiction to accept and was therefore barred. Having deliberately under-valued his relief in the first instance, the plaintiff could not claim the benefit of Section 14.

34. A careful reading of the facts in all the above cases, relied upon by the learned counsel, Sri. A. Satyanarayana, appearing for the respondents, reveals that in the first instance the suit, value of which exceeded the pecuniary jurisdiction of the court, was filed in that court, and the court having found that if the suit was properly valued the valuation would be beyond its pecuniary jurisdiction, returned the plaint for presentation to proper court. The suit was then either after altering the value or omitting some of the claims for the purposes of valuation, presented in a different court or in the same court. In such a case the courts have considered that the date of institution of the suit in the proper court would be the date of institution, and the proceedings in the proper court would not be a continuation of the suit filed in the original court which returned the plaint, that is to say the first court in which the suti was filed, was not competent by reason of its pecuniary jurisdiction to try and entertain the suit. It is only in such cases where the court in which the suit was originally instituted had no pecuniary jurisdiction and was not competent to try the suit filed before it and therefore returned the plaint for presentation to the proper court, that the date of presentation of the suit in the proper court in pursuance of the order of the original court returing it would be the proper date of institution of the suit.

35. However in the instant case before me, the City Civil Court is one court and the Chief Judge, of the City Civil Court has jurisdiction to try all suits of civil nature of unlimited pecuniary value. Whether the suit was valued at Rs. 1,000/- or at Rs. 5,500/- the suit could be filed in, tried and disposed of by the Chief Judge, City Civil Court, who was competent to try the said suit. Therefore the present suit filed in the court of the Chief Judge, City Civil Court, cannot be equated to a suit which has been filed in a court appearing for the respondents. Those cases therefore are not applicable in the facts of the present case.

36. In the case before me the plaint was presented for the first time on 15-9-1967 in court of the Chief Judge, City Civil Court, which had jurisdiction to try the same. On that date the 1st plaintiff Ram Mohan Reddy was alive, It is only six days after the institution of the suit that Ram Mohan Reddy died. In those circumstances it is evident that the date of institution of the suit was 15-9-1967 and on that date of 1st plaintiff Ram Mohan Reddy was alive. Since the 1st plaintiff died on 21-9-1967 i.e., six days after the institution of the suit the L. R. petition filed under Order XXII, Rule 3, C. P. C. for bringing his legal representatives on record, was a valid and a proper petition. The learned First Additional Judge, therefore erred in holding that the presentation of the suit in the court of the Chief Judge, City Civil Court on 15-9-1967 was not the proper date of institution of the suit and the 1st August, 1968 was the date of institution of the suit on which date it was presented to the Chief Judge's Court, in pursuance of the order of return passed by the II Asst. Judge, City Civil Court, Hyderabad.

37. There is also a fallacy in the argument advanced by the learned counsel appearing for the respondent. Both in the first instance as well as subsequently the plaint was presented in the court of the Chief Judge, City Civil Court, When in the latter case as contended by the learned counsel for the respondents 1st August, 1968, the date on which the plaint was represented in the court of Chief Judge, City Civil Court was the proper date of presentation of the plaint, then it is surprising why 15-9-1967 the date on which the suit was filed in the court of the Chief Judge, City Civil Court, was not the proper date of presentation. I therefore, see no merit in this connection and hold that the suit was properly filed, in a court of competent jurisdiction on 15-9-1967, Since the 1st plaintiff died six days after the proper institution of the suit the only remedy available to his heirs was to file a petition under Order XXII, Rule 3 of the C. P. C. The learned 1st Additional Judge, C. C. C. has therefore erred in dismissing the L. R. petition filed under Order XXII, Rule 3, C. P. C.

38. In Kedarnath Lal v. Sheonarain Ram, : AIR1952Pat280 Ramaswami J. (as he then was) held that where on evidence it was found by the court that the suit transferred to it was beyond its pecuniary jurisdiction the Judge should transfer the suit back to the court from which it was sent back to the court from which it was sent and not return the plaint under Order VII, Rule 10, C. P. C. and that the provisions of Order VII, Rule 10, C. P. C. do not apply to such cases.

30. In that instant case before me, when the II Asst, Judge, or the First Additional Judge, City Civil Court, returned the plaint on the ground that the suit was beyond the pecuniary jurisdiction of his court the learned Judge should have sent back the suit to the court from which it was allotted to him, that is to say the learned Judge should have sent back the plaint to the court of the Chief Judge, City Civil Court. The order of return with a direction to present the plaint in a proper court was itself therefore bad in law.

40. In K. Isamil v. Pavu Amma, : AIR1955Mad644 , Alabhai Vajsurbhai v. Bhura Baya, AIR 1937 Bom 401 and Gopalakrishnayya v. Adivi Lakshmanarao, AIR 1925 Mad 1210 (FB) the suit or the appeal was filed by mistake against a dead person. It was held that it was a defect in the proceedings which could be cured and rectified under Section 153, C. P. C. These are not cases where the suit or appeal was filed in the name of a dead person, and Section 153, C. P. C. does not apply to a case whose the suit has been filed in the name of a dead person. However, that question does not arise in the instant case in view of my finding that the 1st plaintiff was alive on the date of institution of the suit i.e. 15-9-1967.

41. There however appears to be a conflict of judicial opinion on the question whether in a suit or an appeal filed in the name of a dead person, the legal representatives of the deceased could be brought on record under Order 1, Rule 10 of the Civil Procedure Code.

42. In Karimulla v. Bhanu Pratap Singh, AIR 1938 Nag 458 Niyogi J., held that :--

'............ Order 1, Rule 10 only contemplates that a suit should have been filed in the name of a wrong person irrespective of whether he is living or a dead person. There is no difference between a suit filed in the name of a dead plaintiff and one filed in the name of a wrong person as plaintiff. The suit filed in the name of a dead plaintiff is manifestly one that is filed in the name of wrong plaintiff. Hence the case comes within the ambit or Order 1, rule 10 and the defect is capable of being cured if the mistake is shown to have occurred in good faith.' In Rangarao Yyankatesh v. Kashinath Dhondu, AIR 1947 Nag 73 a suit for rectification of K and S was instituted in the name of K and S as plaintiffs but it was subsequently discovered that S had died only three days before the institution of the suit. The sons and widow of S thereafter applied for being substituted as his legal representatives. This was allowed by the court. It was contended by the defendants that the suit which purported to be filed by a dead person, was an absolute nullity and that the order allowing the substitution was illegal. On these facts Niyogi J., held that :

'............... the suit was properly presented so far as K was concerned and he could prosecute the suit on his won account as if he was the sole plaintiff in the case. The suit vis a vis S who was dead was certainly void and his legal representatives could not be brought on record. Under Order XXII, Rule 3, But Order 1, R. 10 (2) was applicable to the case and hence the order of substitution was not illegal. The fact that K wrongly included the name of a dead person in his plaint did not make any difference.'

43. In the instant case before me two persons i.e. Ram Mohan Reddy and Jayashree, filed the suit. Even assuming for a moment without admitting that the suit should be deemed to have been properly instituted on 1-8-1968 still on that date Jayashree could alone continue and prosecute the suit. Whether the suit is considered to have been filed on 15-9-1967 or 1-8-1968 still it was a valid suit which could have been filed by Jayashree and continued by her even in the latter court. In such circumstances even if the application for bringing the legal representatives on record under Order XXII, Rule 3, C. P. C, is not allowable under the impression that on the date of the institution of the suit, i.e. 1-8-1968 the 1st plaitiff was already dead still the legal representatives of the 1st plaintiff could be brought on record under Order 1, rule 10 (2) , C. P. C.

44. However in Amar Kaur v. Sadhu Singh, AIR 1961 Punj 57 a Division Bench of the Punjab High Court appears to have taken a different view. In that case the learned Judges held that :--

'............... The powers under Order 1, Rule 10 cannot be exercised to substitute a different person for a dead plaintiff or appellant. The 'Person' referred to in this rule means a person in existence who may of course be either a human being or a legal person capable of suing or being sued but it does not include fictitious person or a person who having died is no longer in existence on the date of the institution of the suit or appeal. A person who is dead has no existence, either in fact or in law and he is incapable of instituting a suit or an appeal or performing any act...............'

45. I prefer the view expressed by the Nagpur High Court in AIR 1938 Nag 458 and AIR 1947 Nag 73.

46. However the question whether the legal representatives of a deceased plaintiff could be brought on record under Order 1, Rule 10, C. P. C. when on the date of the institution of the suit the plaintiff was dead, does not arise in this case because on the date of the institution of the suit i.e. on 15-9-67, on which date the suit was validly instituted in a court of competent jurisdiction, the 1st plaintiff was alive.

47. In Bhupendra v. Rajeswar AIR 1931 PC 162 Sri George Lowndes J., observed that :

'........... the course of adding pro forma defendants as co-plaintiffs should always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings.................'

In the instant case before me, the 1st plaintiff (i.e. the deceased) left two heirs and they are (I) his sister, who is already on record as the 2nd plaintiff and (ii) his mother who is already on record as defendant No. 1. In such a case it is in the interest of justice that the court is required to substitute the legal heirs of the deceased and by transposing the 1st defendant as plaintiff.

48. A Full Bench of the Patna High Court in Hifsa Khatoon v. Md. Salimar, : AIR1959Pat254 (FB) overruling its earlier decision in Waleyatunnissa Begum v. Chalakhi, AIR 1931 Pat 164, held that :

'.................. Where all the heirs or legal representatives of the deceased are already on the record in any capacity it is not necessary to make an application for their substitution in the place of the deceased and such a case is governed by Rule 2 of Order XXII and not Rules 3 and 4 of that order...............'

It is clear from this ruling that when the legal heirs of a deceased are already on record even an application under Order XXII, Rule 3, C. P. C. is not necessary and the legal heirs could be brought on record by substitution.

49. What emerges from the above discussion, is that the City Civil Court is one court and all the suits have to be instituted by presentation of the plaint to the Chief Judge, City Civil Court who in order to regulate the work of his court, is competent and has jurisdiction to distribute the work among the various other Judges of the City Civil Court. The date of presentation of the suit in the court of the Chief Judge, City Civil Court will be the proper date of institution of the suit even though it was for the purpose of distribution, allotted by the Chief Judge, City Civil Court to another Judge of that court and the latter court, finding that the suit was beyond its pecuniary jurisdiction returned it for presentation jurisdiction returned it for presentation to the proper court. Even if on the proper date of presentation of the suit the plaintiff was dead and the suit was filed under a bona fide belief that the plaintiff was alive, that application for bringing the L. Rs. on record could be considered under Order 1, Rule 10, C. P. C.

50. I, therefore allow this revision petition, set aside the order of the First Additional Judge, City Civil Court, Hyderabad and allow I. A. 347/69 and direct the First Additional Judge, City Civil Court to allow the legal representatives of the deceased 1st plaintiff to be brought on record. The Civil Revision Petition is allowed with costs.

51. Revision allowed.


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