Skip to content


Deep Chand JaIn Vs. Kasoombiri Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 2518 of 1977
Judge
Reported inAIR1980All117
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantDeep Chand Jain
RespondentKasoombiri Lal
Advocates:V.D. Ojha, Adv.
DispositionRevision dismissed
Excerpt:
civil - presentation of plaint to proper court - order 7 rule 10 of code of civil procedure, 1908 - suit for ejectment - to be instituted in court of small causes and not at court of munsif - munsif was right in directing the return of plaint for presentation to proper court. - - it was the case of the defendant-opposite party that the suit was bad for misjoinder of causes of action. such a suit, clearly, after passing of u. clearly applied to the instant case. learned counsel has failed to point out any provision under which it was obligatory for the court of the munsif to have directed the transfer of the suit, in the circumstances of this case. 9. for the reasons given above, the revision is liable to fail......the proper court or whether some kind of order be passed transferring the same for decision by the judge, small cause court. 3. the learned munsif directed the plaint to be returned for presentation to the proper court. the plaintiff went up in appeal. the district judge, muzaffarnagar dismissed the appeal. he held that the learned munsif had no option but to order the presentation of the plaint in the proper court and no illegality was found in the order of the munsiff, so directing the return of the plaint. 4. the plaintiff has hence come up in revision to this court. 5. the counsel appearing for the applicant has contended that the learned munsif erred in law in returning the plaint for presentation to the proper court; as according to the learned counsel the suit was initially.....
Judgment:
ORDER

B.D. Agarwala, J.

1. This is a revision under Section 115 Code of Civil Procedure filed by Deep Chand Jain (plaintiff in original Suit No. 324 of 1974) against the order passed by the District Judge, Muzaffarnagar dated 18th May, 1977, dismissing the appeal against the order of the V Additional Munsif, Muzaffarnagar directing the return of the plaint for presentation to the proper court.

2. The plaintiff Sri Deep Chand Jain filed a suit on 1st June, 1974 against Kasoombiri Lal in the court of Munsif Muzaffarnagar praying for two reliefs. The first relief was for ejectment from the house in question and for recoveryof rent and damages. The other relief was for possession over a vacant piece of land lying in front of the house and damages for use and occupation in respect thereof. A preliminary issue was raised before the learned Munsif in regard to the maintainability of the suit in respect of both the reliefs. It was the case of the defendant-opposite party that the suit was bad for misjoinder of causes of action. This plea was accepted by the learned Munsif by his order dated 9th February, 1976. The plaintiff went up in revision against this order of the learned Munsif. The IInd Additional District Judge, Muzaffarnagar who decided the revision upheld the view taken by the learned Munsif and dismissed the revision. The learned Munsif was directed to give an opportunity to the plaintiff to elect as to which of the two reliefs he would wish to retain in the suit. In pursuance to this order the plaintiff appeared before the Munsif when the matter was taken up by him and elected to retain the relief in regard to ejectment and for recovery of rent etc. against the defendant-opposite party. The plaint was allowed to be amended accordingly. The question then arose as to whether the plaint be returned for presentation to the proper court or whether some kind of order be passed transferring the same for decision by the Judge, Small Cause Court.

3. The learned Munsif directed the plaint to be returned for presentation to the proper court. The plaintiff went up in appeal. The District Judge, Muzaffarnagar dismissed the appeal. He held that the learned Munsif had no option but to order the presentation of the plaint in the proper court and no illegality was found in the order of the Munsiff, so directing the return of the plaint.

4. The plaintiff has hence come up in revision to this court.

5. The counsel appearing for the applicant has contended that the learned Munsif erred in law in returning the plaint for presentation to the proper court; as according to the learned counsel the suit was initially instituted in the proper court. He further contends that in these circumstances the learned Munsif could only have directed the transfer of the same to the court of the Judge, Small Causes or should have referred the matter to the District Judge for being so transferred to that court.

6. I have considered this submission of the learned counsel but I am unable to agree.

7. As noticed above, the suit was filed on 1st of June, 1974. After the plaint was permitted to be amended and the relief in regard to the possession over the vacant land having been deleted, the suit remained a suit only for relief of ejectment, arrears of rent etc. Such a suit, clearly, after passing of U. P. Civil Laws Amendment Act, 1972 (U. P. Act 37 of 1972) was suit which could be instituted only in the court of Judge, Small Causes. It was this Court which was the competent court. The suit as such even in 1974 with this relief could not have been instituted in the court of Munsif. Thus it is not correct to submit that the plaint as amended could have been entertained by the learned Munsif on 1st June, 1974. This being the position, the provisions of Order 7, Rule 10, C.P.C. clearly applied to the instant case. Order 7, Rule 10 provides that subject to the provisions of Rule 10 (a) the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. The suit in this case as noticed above should have been instituted in the court of Judge, Small Causes. The learned Munsif was hence right in directing the return of the plaint for presentation to the proper court namely, the court of the Judge, Small Causes. I find no illegality in this order. The appellate court rightly upheld this order. Learned counsel has failed to point out any provision under which it was obligatory for the court of the Munsif to have directed the transfer of the suit, in the circumstances of this case. The procedure adopted, in the absence of anything shown to the contrary, was the only permissible procedure available before the Court.

8. Learned counsel has referred to Akhilesh Chandra v. Bhagwati Devi (AIR 1976 All 42) in support of the above submission. In this case part of the suit was triable on the regular side and part was triable under the provisions of the Provincial Small Cause Courts Act. In this situation it was held that it was not possible to split up such a suit into two parts and since it was not permissible for the court of the Small Causes to try that part of the suit which was only triable on the regular side, it was held that the suit in that case as a whole could be tried by the Munsif. Such are not the facts in the instant case. After the amendment of the plaint the entire suit was a suit triable by the court of Judge, Small Causes. This decision has no application to the instant case. The otherdecision relied upon by the learned counsel is Alam Chand v. Moti Lal (AIR 1968 Madh Pra 112). In my view this decision lends support to the view taken by me above. It has been laid down that under Order 7, Rule 10, C.P.C. a plaint is liable to be returned if at the time it was filed there was another court in which the suit should have been instituted. As seen above, on 1st June, 1974 the suit should have been instituted in the court of Judge, Small Causes. In my opinion, this case does not lend support to the submission of learned counsel for applicant. If it was a case of subsequent conferment of power on the Judge, Small Causes, after filing of the suit, then perhaps this case might have had some application.

9. For the reasons given above, the revision is liable to fail. It is accordingly dismissed. In the circumstances, the parties are directed to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //