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Nand Kishore Vs. Abdul Rahman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in52Ind.Cas.801
AppellantNand Kishore
RespondentAbdul Rahman
Excerpt:
civil procedure code (act v of 1908), sections 21, 107, order vii, rule 10, order xli, rule 33, order xliii, rule 1(a) - appeal--order by appellate court returning plaint for presentation to proper court--appeal, second, whether lies--place of suing, objection to--failure of justice, finding as to--court, duty of. - - the lower appellate court, before allowing the objection as to the place of suing, should have considered whether there had been a failure of justice consequent on the suit having been instituted in the court of the city munsif of moradabad instead of in the court;.....doubt, could be passed under the powers of an appellate court as specified in section 107 of the civil procedure code and is also covered by the provisions of order xli, rule 33 of the same code. it is never theless an order returning a plaint to be presented to the proper court, such as is referred to in order vii, rule 10 of the code of civil procedure. an objection has been taken in this court to the effect that no appeal lies. on the wording of order xliii, rule 1(a), we were disposed in any case to overrule this objection, but we find that the point is covered by clear authority. it was decided under the former code of civil procedure in wahidullah v. kanhaya lal 25 a. 174 (f.b.) : a.w.n. (1902) : 222 that an appeal lay from the order of an appellate court directing a plaint to be.....
Judgment:

1. This is an appeal from an order passed by the Subordinate Judge of Moradabad in an appeal directing the plaint filed in the case to be returned to the plaintiff for presentation in the proper Court. The suit was brought in the Court of the City Munsif of Moradabad. One of the pleas taken in defence was that the suit was not cognizable by that Court but should have been brought in the Court of the Munsif of Sarabha J. The learned City Munsif set down the suit for hearing, framed proper issues, held that the cause of action had arisen within his jurisdiction and gave the plaintiff a decree. 'On appeal the learned Subordinate Judge held that no part of the cause of action had arisen within the jurisdiction of the Court of the Munsif of Moradabad City. Without going further into the matter he passed the order now under appeal. That order, no doubt, could be passed under the powers of an Appellate Court as specified in Section 107 of the Civil Procedure Code and is also covered by the provisions of Order XLI, Rule 33 of the same Code. It is never theless an order returning a plaint to be presented to the proper Court, such as is referred to in Order VII, Rule 10 of the Code of Civil Procedure. An objection has been taken in this Court to the effect that no appeal lies. On the wording of Order XLIII, Rule 1(a), we were disposed in any case to overrule this objection, but we find that the point is covered by clear authority. It was decided under the former Code of Civil Procedure in Wahidullah v. Kanhaya Lal 25 A. 174 (F.B.) : A.W.N. (1902) : 222 that an appeal lay from the order of an Appellate Court directing a plaint to be returned. Subsequently in the case of Dalip Singh v. Kundan Singh 22 Ind. Cas. 614 : 36 A. 58 : 12 A.L.J. 21 a Bench of this Court has held that the present Code of Civil Procedure makes no change in the law in this respect. We are, therefore, content to follow these authorities. Assuming that the appeal lies, it raises only one question, namely, whether the lower Appellate Court has not overlooked the provisions of Section 21 of the Code of Civil Procedure. The case before us is in fact very similar in principle to that of Dalip Singh v. Kundan Singh 22 Ind. Cas. 614 : 36 A. 58 : 12 A.L.J. 21, above referred to, except that in that case reference was made to the provisions of Clause 2 of Section 11 of the Suits Valuation Act (VII of 1887;, whereas in the present case the question was one of territorial jurisdiction and reference is made to the closing part of Section 21 of the Code of Civil Procedure. We think the appeal mast succeed on this ground. The lower Appellate Court, before allowing the objection as to the place of suing, should have considered whether there had been a failure of justice consequent on the suit having been instituted in the Court of the City Munsif of Moradabad instead of in the Court; of the Munsif of Simbhal in the same district. This point has been altogether overlooked and we must, therefore, follow the precedent set in the case above referred to by setting aside the order under appeal and sending back the case to the lower Appellate Court to be re admitted under its original number in the file of panning appeals and disposed of on the merits. We order accordingly. Costs of this appeal will abide the event of the suit.


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