Mithan Lal, J.
1. This first appeal from order is sought to be filed under Order 43 Rule 1 (a) Civil Procedure Code against the order of Civil Judge, Mohanlalganj, Lucknow, returning the plaint for presentation to proper Court.
2. The present suit appears to have been instituted in 1956. Thereafter the defendant filed A written statement but no plea of jurisdiction was taken. There was also a former suit between the parties in which the jurisdiction of the Court was not challenged and, I am told the dispute relating to the former suit is still pending in appeal or revision in this Court. In this case an application for stay was moved by the defendant under Section 10 Civil Procedure Code, perhaps read with Section 151 Civil Procedure Code and the learned Civil Judge passed an order of stay under Section 351 Civil Procedure Code though he appears to have found that the provisions of Section 10 Civil Procedure Code would not apply.
After the order of stay was passed an application was moved on behalf of the plaintiffs stating that the defendants 1 and 3 had committed default of an earlier compromise entered into between the parties on the 1st February, 1956 and so a prayer for appointment of a Receiver was made. This application for appointment of a Receiver was opposed by the defendants on two grounds. The first was that the suit having been stayed, the Court could not appoint a Receiver, while the second ground was that the Court had no jurisdiction to entertain the suit.
The first objection was overruled and the order of appointment of Receiver was upheld right up to this Court. On the point of jurisdiction the then Civil Judge passed an order that this question shall be taken up for consideration at the time of the hearing of the suit. It may be observed that when a preliminary point is raised in a case which affects the very entertainment or maintainability of a suit, it is not always proper to pass an order of hearing the preliminary point at the lime of final hearing of the suit. Such a point should ordinarily be decided at an earlier stage.
However, in this case this order was not subsequently adhered to and the objection relating to jurisdiction was heard before the hearing of the suit. The jurisdiction of the Court below was challenged on the basis of territorial jurisdiction and the learned Civil Judge, after going into the evidence of the parties, found that, he had no jurisdiction to entertain the suit and so he ordered the return of the plaint for presentation to proper Court. This appeal has been filed against that order.
3. The contention of the learned counsel for the appellant is that the Court below, having found that it had no jurisdiction to entertain the suit, could not order the return of the plaint but it had to dismiss the suit and the order which has been passed by the Court below is thus without jurisdiction. In support of this contention the learned counsel has relied upon the authorities of Durga Prasad v. Om Prakash : AIR1938All39 , Hira Lal v. Piarey Lal : AIR1933All745 , Sitla Din v. Mohan, and a single Judge case of Baboolal Gyansingh v. Sunderlal Munnalal : AIR1961MP152 . I am unable to agree with the argument of the learned counsel and the authorities which have been relied upon do not support the argument of the learned counsel as advanced before me.
4. The provision for the return of plaint has been made under Order VII Rule 10 (1) of the Code of Civil Procedure. It gives the Court a discretion to return the plaint at any stage of the suit for presentation to the proper Court. The law does not require the Court to dismiss the suit on the plea of want of jurisdiction. It is only in cases where the plea of jurisdiction has been contested and the evidence of the parties has also been recorded on the merits of the case that the Order of dismissal of the suit for want of jurisdiction has been upheld by the different High Courts. The learned counsel could not cite a single case in which the order of the return of plaint passed after hearing the preliminary issue of jurisdiction was held to be bad by any High Court. The cases cited all relate to those type of cases in which the Court after recording the evidence of the parties on all the issues came to the conclusion that it had no jurisdiction and then dismissed the suit. Such order of dismissal passed by the Court was found to be justified. In the instant case the plaint was ordered to be returned after hearing the preliminary point of jurisdiction raised on behalf of the defendant. This case was quite distinct from the facts of the case cited by file learned counsel.
5. In the case of Hira Lal : AIR1933All745 , the suit for rendition of accounts was filed at a place where the defendant was not residing. The only allegation relating to jurisdiction of the Court was that there had been an agreement between the parties that the accounts shall be rendered at the place where the suit was filed. The evidence of the parties was recorded in the case and thereafter it was found that none of the allegations made in the plaint were correct and there was no agreement for rendition of accounts at the place where the suit was instituted. The trial Court dismissed tho suit and that order was upheld by this Court with the observation that the Court was competent to dismiss the suit and under the circumstances of the case it was not necessary that the plaint should have been returned for presentation to proper Court.
6. In the case of Durga Prasad : AIR1938All39 , the learned single Judge who decided that case observed that where a person has chosen his forum it will be for the Court in which the suit has been filed or application has been made to see whether on the allegations made in the plaint or application it is cognisable by it. It may be that on the facts alleged and established by the defendant the allegations made in the plaint are found incorrect or false and the relief claimed cannot he given by the Court and so it was held that the suit could be dismissed on the ground that the Court was not in a position to grant the relief.
7. In the case of Silla Din AIR 1937 Oudh 483 (supra) the suit as framed was cognisable by the Civil Court and it was only after evidence that it was found that the Civil Court had no jurisdiction to entertain the suit or to grant the major portion of the relief claimed. It was held that the order dismissing the suit was proper and it was not necessary for the Court to have returned the plaint for presentation to proper Court.
8. All the three cases referred to above are those cases in which the Court went into the evidence of the parties and then dismissed the suit and the order of dismissal was upheld by the High Court.
9. The Madhya Pradesh case of Baboolal Gyan Singh : AIR1961MP152 , has not expressed any different view. It has been observed in paragraph (9) of that case that Order 7, Rule 10, Civil Procedure Code read with Section 17 of the Provincial Small Cause Courts Act is no doubt mandatory but it would be attracted whereupon the plaint as presented the Court finds that it has no jurisdiction to try the suit. If however upon entering into the evidence it is discovered that the Court has no jurisdiction the Court is not bound to return the plaint but may dismiss the suit.
10. In the present case, as already stated, the plea of jurisdiction was taken two years after the filing of the suit. The Court had no reason to think that the suit as instituted was not within its territorial jurisdiction till the plea of jurisdiction was raised. This plea was also raised not in the written statement but in an objection filed to an application for appointment of a Receiver. The Court originally passed an order that the plea of jurisdiction would be looked into at the time of the hearing of the suit but later on the plea of jurisdiction was heard and after hearing the parties if the Court passed an order for the return of the plaint that order cannot be said to be wrong or without jurisdiction. If the argument of the learned counsel for the appellant were to be accepted, in cases whether at an early stage or at a late stage, the only order which could be passed would be an order of dismissal of the suit and not an Order for the return of the plaint. Such an argument of the learned counsel is against the provision of law under which the order of return of the plaint for want of jurisdiction is the rule and not an exception. If is difficult to accept the argument that the order of the return of plaint passed in the instant case was improper or that the Court should have dismissed the suit. Under the circumstances of the case the only proper order which could be passed by the Court was the order of the return of the plaint. The Order of the Court below is perfectly justified and does not require any interference.
11. The appeal has no force. It is hereby dismissed.
12. The stay application is also dismissed.