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Baboolal Gyansingh Vs. Sunderlal Munnalal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 136 of 1960
Judge
Reported inAIR1961MP152
ActsProvincial Small Cause Courts Act, 1887 - Sections 15, 17, 23 and 25 - Schedule - Article 11; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantBaboolal Gyansingh
RespondentSunderlal Munnalal
Appellant AdvocateG.C. Jain, Adv.
Respondent AdvocateR.C. Agarwal, Adv.
DispositionRevision dismissed
Cases ReferredIn Mangnia v. Sakia
Excerpt:
.....as well as in hindi. the section is clearly inapplicable, as thesuit, as found by the trial judge, is not triable by a small cause court. as i understand the law the dismissal of the suit in the circumstances of the case and not a return of the plaint for presentation to proper court was the legal and just order and the court would have failed to exercise jurisdiction vested in it by law if instead of dismissing the suit the court would have returned the plaint for presentation to proper court'.it will, therefore, be seen that the power under order 7 rule 10 of the civil procedure code is to beexercised in favour of a bona fide litigant, who does not depend on falsehood. if that is so, it is clear nothing would be due to the applicant, inasmuch as, all the amount due to the..........the receipt, dated, 26-9-1956 (ex. d-1). he also denied that he had signed any such receipt.5. the learned small cause judge came to the conclusion that the rent note was, in tact, in lieu of interest on the mortgage. the learned judge had taken a sample signature of the plaintiff-applicant, as per ex. d-2 in english as well as in hindi. the learned judge was of opinion that the signature on ex. d-1 was of the plaintiff. as such, the mortgage amount along with interest had been repaid. in that view of the case, the plaintiff's suit was dismissed in its entirety.6. as the present suit was in respect of interest due on the mortgage of immoveable property, article 11 of schedule 11 of the provincial small cause courts act was a bar to the cognizance of the suit by a small cause court. the.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 25 of the Provincial Small Cause Courts Act is by the plaintiff-against the decree, dated, 3-2-1960, passed by Shri R. K, Shukla, Second Additional District Judge. Bhopal, empowered under Section 9 of the M. P. Courts Act, 1958, in Small Cause Suit No. 145 of 1959.

2. The applicant filed the present suit tor recovery of Rs. 250/- as rent for the period from 26-6-1956 to 26-7-1959, on the basis of a rent note, dated. 26-9-1955 (Ex. P-1). The plaint alleged that the rent was claimed, as the plaintiff was owner of the suit house.

3. The non-applicant, in his defence, denied that the plaintiff was owner of the suit house. On the other hand, he alleged that the plaintiff was a mortgagee with possession on the strength of a registered mortgage deed dated, 26-9-1955 for aconsideration of Rs. 200/-. The rent note, in tact, was by way of interest upon the mortgage. The rate of interest agreed to in the guise of a rent note was excessive, as it was at the rate of Rs. 3/8/- per cent per month.

He further alleged that he had paid an amount of Rs. 231/-, as was evidenced by the receipt, dated, E6-9-1956 (Ex. D-1). As he had paid the said amount in full satisfaction of the mortgage claim with interest, nothing was due, and, therefore, the mortgagee could not maintain the present suit. The said receipt also recited that all rent upto that period namely, 26-9-f956 had been paid. As such, the non-applicant had paid some more amounts in small instalments besides the amount of Rs. 231/-.

4. The applicant, in his deposition, admitted that he was a mortgagee with possession. However, he denied the receipt, dated, 26-9-1956 (Ex. D-1). He also denied that he had signed any such receipt.

5. The learned Small Cause Judge came to the conclusion that the rent note was, in tact, in lieu of interest on the mortgage. The learned Judge had taken a sample signature of the plaintiff-applicant, as per Ex. D-2 in English as well as in Hindi. The learned Judge was of opinion that the signature on Ex. D-1 was of the plaintiff. As such, the mortgage amount along with interest had been repaid. In that view of the case, the plaintiff's suit was dismissed in its entirety.

6. As the present suit was in respect of interest due on the mortgage of immoveable property, Article 11 of Schedule 11 of the Provincial Small Cause Courts Act was a bar to the cognizance of the suit by a Small Cause Court. The suit could not have been tried in the Small Cause Court.

7. As the plaintiff was, on his own admission, a mortgagee, he could exercise whatever rights he had in that capacity. On the other hand, he suppressed the fact that he was a mortgagee. In the plaint, he alleged that he was the owner of the house. However, when constrained to admit, he admitted his possession as a mortgagee. It is, therefore, clear that the present suit for rent as owner was not maintainable and the claim for rent being based on a mortgage, the suit was not tenable in a Small Cause Court.

8. The learned counsel for the applicant urged that the plaint be either returned for proper presentation under Order 7 Rule 10 of the Civil Procedure Code read with Section 17 of the Provincial Small Cause Courts Act or that the suit be remitted to a regular Court under Section 23 of the Provincial Small Cause Court Act, as it involves a question of title, At this stage, it may be pertinent to note that the applicant did not even file the mortgage deed in the trial Court. I am unable to accept the contention of the learned counsel for transferring the case to the regular Court under Section 23 of the Provincial Small Cause Courts Act, as this request is being made at a late stage upon suppression of a material fact, which was necessary for an adjudication of the rights between the parties on a correct basis.

The powers under the section are discretionary and the applicant, by suppressing a material tact, has disentitled himself to indulgence at the revisional stage. The section is clearly inapplicable, as thesuit, as found by the trial Judge, is not triable by a Small Cause Court. The section would be attract-ed where the suit be cognisable by a Small Cause Court, but at the same time, the court is required to decide a question of title relating to immoveable property. Therefore, I am of opinion that this Court is unable to act under the section.

9. As regards the question about return of the : plaint under Order 7 Rule 10, Civil Procedure Code read with Section 17 of the Provincial Small Cause Courts Act, the provision is mandatory. But, it ; would be attracted where upon the plaint as presented, the Court finds that it has no jurisdiction to try the suit. If upon the plaint as presented, the Court finds that it has jurisdiction, but subsequently, if upon the defence allegations, it is discovered that the Court has no jurisdiction, the Court is not bound to return the plaint, but has the power to dismiss the suit. A plaintiff, having chosen the forum and elected to contest the lis, cannot later on be heard to say that if upon the defence contention the Court is found to have no jurisdiction, the plaint should be returned to him for proper presentation under Order 7 Rule 10 of the Civil Procedure Code. There is ample authority for such a course as is adopted by me.

10. In Mst. Jageshwar Kuer v. Tilakdharisingh ILR 2 Pat 746: (AIR 1924 Pat 267) a Division Bench of the Patna High Court refused to return the plaint and dismissed the suit, which was triable by the Deputy Commissioner on account of the tact that although t e plaintiff had purported to file the suit against an alleged trespasser, upon defence allegation it was established that the dedendant was a non-occupancy raiyat, In Durgaprasad Seth v. Omprakash, AIR 1938 All 39 Mohammad Ismail J. followed the same course. In Sitladin v. Mohan, ILR 13 Luck 18: (AIR 1937 Oudh 183) Ziaul Hasan J. following, the earlier view of the Allahabad High Court, held that under such circumstances, the Court should dismiss the suit and not return the plaint for presentation to proper Court.

11. In Mangnia v. Sakia, ILR (1941) Nag 96: (AIR 1940 Nag 331) decided by Puranik J. the suit was filed in the Small Cause Court on the definite allegation that the accounts of the partnership had been settled and an ascertained sum was due to the plaintiff. Therefore, the plaintiff claimed an ascertained sum and filed the plaint in a Small Cause Court. The defence was that no accounts had ever been settled and the only remedy of the plaintiff was to sue for rendition of accounts of the partnership firm. As such, the Small Cause Court had not jurisdiction to try the suit. The learned Small Cause Judge, instead of returning the plaint, dismissed the suit. At the revisional stage a prayer was made that the plaint ought to be returned for presentation to proper Court. Puranik J. made the following observations:

'The Court judging from the allegations in the plaint could not throw it out and say that it had no-jurisdiction to try the same. In this case the defendants Nos. 1 and 2 pleaded that the allegations to the plaint that the accounts were settled and balance struck are false and the suit as framed is not tenable. They pleaded that plaintiff should have sued for dissolution of partnership and accounts in a properCourt and should not have come to the Small Cause Court on false averments. The plaintiff instead of taking the hint if his allegations were not true and instead of immediately either asking for the amendment of the plaint and return thereof or applying for withdrawal with liberty to bring a fresh suit, insisted on the suit being tried in the Small Cause Courtand stated that his allegations were true. The plea raised by the defendants in this case was a part ofthe main defence on merits. The Court investigated into the cases of the respective parties and came tothe conclusion that the plaintiff's suit was false anddismissed it. This was not therefore a case in which the plaint should have been returned for presentation to proper Court. Plaintiff who insisted on adhering to falsehood and who does not and could not challenge the finding of the Court below on that point which is adverse to him, ought to takethe consequences of his persisting in falsehood. He cannot be allowed to claim the benefit of Order VII, Rule 10, and argue that the rule states that at any stage the plaint has to be returned and the mere tact that he joined issue and went to trial did not permit the Court to 'dismiss the suit, I was asked to interpret the rule this way inasmuch as there arecases in which questions of overvaluation and undervaluation are involved and the issue is tried and decided and if it is found that the suit is overvalued and is beyond the jurisdiction, the plaint is usuallyreturned. This is so, but I do not regard an issueregarding overvaluation or under-valuation as an issue on the merits of the case. The Civil Procedure Code also requires that such a point ought tobe decided as a preliminary point. Order VII, Rule 11(b) empowers the Court, at the initial stage of thecase, to enter into that enquiry and give plaintiff time to correct the valuation and if on an enquiry the proper valuation is found either in excess of or lower than the jurisdiction of the Court, the Court ought to possess the power to return the plaint. This is thus an exception permitted by law, but to lay down ageneral proposition that in all cases, howsoever falsethe allegations of the plaintiff, the Court as soon as it discovers the falsehood, ought to return the plaint, will not be correct. I understood the words 'the plaint' as meaning the plaint as originally presented. If on the face of the plaint the Court finds that ithas no jurisdiction to try the case, it will return the plaint at any stage of the case, if the Court fails to detect want of jurisdiction in it to begin with, but where a plaint on the face of it is triable by the Court and though the other side challenges the allegations in the plaint, the plaintiff sticks to them and wants the Court to try the case, the Court proceeds to try the case on merits and is not deciding any preliminary point about jurisdiction. If on such a trial the Court comes to the conclusion that plaintiff's contention is false and he cannot maintain the suit as laid, the Court ought to dismiss the suit and no question of returning the plaint under Order VII,Rule 10, arises in such a case. I go even the length of stating that the Court will be failing to exercisethe jurisdiction vested in it by law if instead of dismissing the suit the Court were to return the plaintfor presentation to proper Court'.

Further on the learned Judge, while concluding the judgment, observes as follows;

'As I understand the law the dismissal of the suit in the circumstances of the case and not a return of the plaint for presentation to proper Court was the legal and just order and the Court would have failed to exercise jurisdiction vested in it by law if instead of dismissing the suit the Court would have returned the plaint for presentation to proper Court'.

It will, therefore, be seen that the power under Order 7 Rule 10 of the Civil Procedure Code is to beexercised in favour of a bona fide litigant, who does not depend on falsehood. As opined by the learned Judge if the Court returns the plaint for presentation instead of dismissing the suit it would be acting in excess of the jurisdiction conferred by law. I am in respectful agreement with the view expressed by Puranik J. Therefore, I am of opinion that the learned Small Cause Judge acted rightly in dismissing the suit on merits and not returning the plaint for presentation to proper Court.

12. There is another aspect which persuades me to adopt the present course. I am inclined to accept the conclusion of the learned Small Cause Judge that the receipt (Ex. D-1) is in the hand-writing of the applicant. The learned trial Judge had taken a sample hand-writing of the applicant, which was Ex. D-2. Upon a mere perusal of the two documents it would be clear that there can be no doubt about the receipt (Ex. D-1) being in the hand-writing of the applicant. If that is so, it is clear nothing would be due to the applicant, inasmuch as, all the amount due to the applicant on the mortgage with interest has already been satisfied. I am of opinion that the applicant made a deliberately raise claim in the present suit by suppressing the real facts. For that reason, he must suffer the consequences of his own falsehood. Therefore, as the learned Small Cause Judge acted rightly in dismissing the suit, I would decline to interfere in exercise of revisional powers under Section 25 of the Provincial Small Cause Courts Act.

13. As a result, this revision Fails and is dismissed with costs. Counsel's fee Rs. 25/- if certified. The costs of the trial Court shall be borne as directed by that Court.


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