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Rai Ranjeet Singh and ors. Vs. Bind Bahadur Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 612 of 1971
Judge
Reported inAIR1973All547
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 7, Rule 10; Negotiable Instruments Act, 1881 - Sections 78
AppellantRai Ranjeet Singh and ors.
RespondentBind Bahadur Singh
Appellant AdvocateDhananjai Pd. and ;G.P. Dixit, Advs.
Respondent AdvocateR.S. Dubay, Adv.
DispositionRevision allowed
Excerpt:
.....passed is binding on all the coparceners - to avoid unnecessary litigation - payment made to holder of pronote - completely discharges the liability - neither defendant nor the plaintiff could pray for impleading the other coparceners in the suit. (ii) return of plaint - order 7 rule 10 of code of civil procedure,1908 - no party has the right to determine the forum nor can jurisdiction be conferred by consent on a court - except where provided under some enactment - held , suit within exclusive jurisdiction of the nyaya panchayat - not cognizable by the civil court including court of judge small causes - such a plaint is returned for presentation to a competent court. - - the present is not a case where the amount of the pronote was payable to the bearer, nor was the pronote..........the remedy was sought for in the civil court in the present case, before judge small cause.7. the holder of a pronote can sue for the recovery of the amount irrespective of whether he had advanced the money in his personal capacity or as karta of the joint hindu family. consequently. the other coparceners of the joint hindu family are not necessary parties to the suit. the question, however, remains whether they can be regarded as proper parties to be impleaded in the suit either as co-plaintiffs or as pro forma defendants.8. there is nothing on the record to show that the interest of the karta of the joint hindu family was adverse to that of the minor coparceners, nor could there be any occasion for the minors to challenge the action taken by plaintiff no. 1 as karta of the family for.....
Judgment:
ORDER

D.S. Mathur, Actg. C.J.

1. This Is a plaintiffs' revision under Section 115. C.P.C. arising out of a suit instituted by Rai Ranjeet Singh, his son Surya Nath Singh and the latter's minor sons Ashok Kumar and Pradeep Kumar, for the recovery of the amount advanced to the defendant Bind Bahadur Singh. under a pronote and receipt dated September 14, 1965, executed by the defendant in favour of Rai Ranjeet Singh alone. The amount claimed in the suit included Rs. 225/- towards principal and Rs. 67/-by way of interest. The plaintiffs' case was that Rai Ranjeet Singh was the Karta of the joint Hindu family which included his sons and grandsons and because the two grandsons were minors, the suit was not cognizable by the Nyaya Panchayat and hence was instituted in the Court of the Judge Small Cause, Jaunpur.

2. The Judge Small Cause Court repelled the contention that the suit was within the exclusive jurisdiction of the Nyaya Panchayat and accepting the plaintiffs' case, decreed the suit in full though clarified that the decree shall notbe capable of execution unless applied for by plaintiff No. 1 alone or along with the other plaintiffs.

3. Thereafter the defendant preferred a revision before the District Judge which was allowed on the ground that the minor plaintiffs had been impleaded to oust the jurisdiction of the Nyaya Panchayat, The learned District Judge treated this as a fraud played on the Court, and. therefore, instead of returning the plaint for presentation to a proper court, dismissed the suit with costs.

4. Section 78 of the Negotiable Instruments Act 1881, lays down to whom payment shall be made. The present is not a case where the amount of the pronote was payable to the bearer, nor was the pronote endorsed in blank. Consequently, the pronote could not stand discharged unless the payment was made to the holder thereof i.e. to Rai Ranjeet Singh, plaintiff No. 1.

5. Section 78 does not prescribe who shall be the parties to the suit and whether any person other than the holder of the pronote can sue for the recovery of the amount. It is a different thing that by implication the courts may insist that the holder of the instrument shall also be impleaded in the suit as a co-plaintiff or as the pro forma defendant, to ensure that the decree passed is also binding on the holder of the pronote and he may not claim the amount all over again from the debtor. Once the holder of the pronote is a party to the suit he shall be bound by the decree and cannot claim the amount of the pronote all over again. In the instant case, the holder of the pronote, namely, the plaintiff No. 1 had instituted the suit along with the other coparceners of the joint Hindu family. Any decree passed would have been in his favour also.

6. In case all the coparceners were major, the controversy as to whether the co-plaintiffs, had been impleaded unnecessarily would have been a technical one not requiring any adjudication by the courts of law. considering that in either case the present suit would have been within the exclusive jurisdiction of the Nyaya Panchayat. It is on account of plaintiffs Nos. 3 and 4 being minors that the jurisdiction of the Nyaya Panchayat was ousted and the remedy was sought for in the Civil Court in the present case, before Judge Small Cause.

7. The holder of a pronote can sue for the recovery of the amount irrespective of whether he had advanced the money in his personal capacity or as Karta of the joint Hindu family. Consequently. the other coparceners of the joint Hindu family are not necessary parties to the suit. The question, however, remains whether they can be regarded as proper parties to be impleaded in the suit either as co-plaintiffs or as pro forma defendants.

8. There is nothing on the record to show that the interest of the Karta of the joint Hindu family was adverse to that of the minor coparceners, nor could there be any occasion for the minors to challenge the action taken by plaintiff No. 1 as Karta of the family for the recovery of the amount advanced by him.

9. The courts of law permit impleading the coparceners in the suit to ensure that the decree passed is binding on all the coparceners. This is done at the instance of the plaintiff at the instance of the defendant, to avoid unnecessary litigation and to make it clear that the decree being passed against the Karta of the family, is effective against all the coparceners of the family. Considering that under the provisions of the Negotiable Instruments Act payment made to plaintiff No. 1 as holder of the pronote completely discharged the liability, neither the defendant nor the plaintiff could pray for impleading the other coparceners in the suit.

10. From whatever aspect the matter is looked into, it must be held that the coparceners, namely, plaintiffs Nos. 2 to 4, were neither necessary nor proper parties to the suit. It was not necessary for plaintiff No. 1 to implead them as co-plaintiffs. Plaintiff No. 1 clearly impleaded plaintiffs Nos. 2 to 4 to oust the Nyaya Panchayat of its jurisdiction. This could not be allowed. No party has the right to determine the forum nor can jurisdiction be conferred by consent on a court other than one prescribed under some enactment. In the circumstances the suit must be held to have been within the exclusive jurisdiction of the Nyaya Panchayat not cognizable by the Civil Court including the Court of Judge Small Causes. Ordinarily, such a plaint is returned for presentation to a competent court.

11. The learned District Judge was moved by the fact that plaintiff No. 1 had unnecessarily impleaded the other coparceners to oust the jurisdiction of the Nyaya Panchayat. He treated this as a fraud played on the Court. Whether the plaintiff was entitled to the benefit of Section 14 of the Limitation Act. is not to be decided by the Court directing the return of the plaint. Such a question, if raised and permissible under the law, can be raised before the court before whom the plaint is represented.

Courts of law do not attempt to fetter the discretion of other courts or tribunals. The District Judge was, therefore, not well advised to express the opinion that a fraud had been played on the courts. The proper thing would have been to leave the question open and to simply order that the plaint shall be returned for presentation to a competent court.

12. The revision is hereby allowed and the order of the District Judge in revision and also the decree of the Judge Small Cause Court are set aside. It is further ordered that the plaint shall be returned for presentation to a proper court. Costs of all the courts easy as no one has put in appearance from the side of the defendant.


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