D.K. Kapur, J.
(1) The present Revision has been filed tochallenge the validity of the order passed by the Commercial Sub Judgewhereby he decided Issue No. 5 in the suit : the said issue was regardingthe value for purposes of court-fees and jurisdiction. It was held that thepecuniary jurisdiction was Rs. 48,200.00 and not Rs. 24,000.00 as fixedby the plaintiff. However, the Court did not return the plaint, butordered the file to be sent to the Court District Judge for transfer to acompetent Court.
(2) The history of the case is some justification for the order actually passed by the Commercial Sub Judge. The suit was instituted forrendition of accounts and partition of Joint Hindu Family property.As the valuation for purposes of jurisdiction was less than Rs. 25,000.00the suit was properly instituted before a Subordinate Judge. At thattime, the Delhi High Court Act provided that suits above Rs. 25,000.00had to be instituted in the High Court. Later, the valuation was raisedto Rs. 50,000.00 in the case of the High Court and the Subordinate Judges got jurisdiction to deal with suits below Rs. 50,000.00. Still later,the pecuniary jurisdiction of Subordinate Judges was reduced tors. 25,000.00 and suits between Rs. 25,0001- and Rs. 50,000.00 were tobe tried by the District Judge or any Additional District Judgs. Thislast alteration was made with effect from 1/10/1972. As it happens, this suit was instituted in 1967 and then the parties completedtheir evidence after considerable delay. It was only after the case wascomplete that the defendants moved an application seeking a trial onIssue No. 5 as a preliminary issue. Thus, it came about that the preliminary Issue regarding the jurisdiction of the court was only tried asa preliminary issue after the entire evidence was complete and the casewas ready for final trial. The Court found at this stage that in view ofthe judgment of this Court (Prithvi Raj, J.) reported in Jagdish Pershadv. Jai Pershad, 1975 R LR 203 the real value for purposes of jurisdiction was Rs. 48,200. I may mention that the originalvalue for purposes of jurisdiction was fixed on the basis of the- valuation of the plaintiff's share, but the High Court has held that the jurisdictional values has to be fixed on the basis of the whole property whichis sought to be partitioned. This is on account of the Rules framed under section 9 of the Suits Valuation Act, 1887, by the Lahore High Courtin 1943. There are some other judgments which have taken the sameview. As at present advised, it is unnecessary to go into this questionin any detail. In fact, there is another some recent judgment deliveredby B. C. Misra J. reported as Jamila Khatoon etc. v. Saidul Nisa etc.1977 RLR 54 in which it has been held that if thesuit is brought for partition and possession then Section 7(v) of theCourt Fees Act, 1870 applies and the value for purposes of jurisdictionhas to be fixed in accordance with the plaintiff's share. Thus, the present position of law seems to be that if the suit for partition is brought by a person who is in possession or joint possession of the propertythen the valuation for purposes of jurisdiction has to be fixed in accordance with the value of the entire property. On the other hand, if thesuit is brought for partition and possession by a person who is not inpossession at all, then the value for purposes of jurisdiction has tobe fixed in accordance with the plaintiff's share and court-fees have tobe paid ad-valorem on that share. On the other hand, if the plaintiff isin joint possession, although the value for jurisdiction is higher, thecourt-fees payable is only Rs. 19.50.
(3) In the present case, the question of jurisdiction was determined as a preliminary issue after the entire suit was ready for arguments. Thishas led the trial court to pass the impugned order dated 16/10/1976, whereby it did not return the plaint, but ordered the file to beplaced before the District Judge for transferring the same to a competent court. It is urged by the petitioner that the Commercial Sub Judgehad no option but to return the plaint. It is urged by the respondentsthat the order passed in the present case is a perfectly correct orderbecause the entire proceedings were over and a mere return of theplaint would cause grave hardship. I am much impressed by this argument and although I find that the Commercial Sub Judge was notempowered to direct the placing of the file before the District Judgefor passing an order of transfer, I find that case cannot be satisfactorilydisposed of by merely rejecting the plaint. This in fact will mean thatthe entire evidence will have to be re-recorded. The suit had beenpending for a period of ten years and there was a long trial. It wouldnot be in the interest of justice if the plaint was returned and the casehad to be tried all over again before an Additional District Judge.
(4) I have been referred to a Division Bench judgment of the Allahabad High Court reported as Saha Nand Ram v. Mussammat Him Deviand others, 1973 I. C. 495 in which case a suit was tried and thenit was found at very late stage that the suit should have been tried inanother district. The Court held that this was a fit case where the HighCourt should exercise its power of transfer. Accordingly, the HighCourt set aside the order returning the plaint and instead transferredthe suit to the Court that had rejected the plaint. The High Court rejected a suggestion that the plaint should first be filed before a Subrodinate Judge in Meerut and then be tranferred back to some court in Moradabad district. In fact, the Court in essence transferred the case fromMeerut district where it had never been filed to Moradabad districtwhere it had been pending for some time. I think, a somewhat similarorder should be passed in this case. Accordingly, I think the properorder in this case is that although the plaint had to be returned becauseof lack of jurisdiction, instead of directing the return of the plaint, Iorder the transfer of the entire suit from the court of the CommercialSub Judge to the court of the District Judge. In this connection, theprovisions of Section 24 of the Code of Civil Procedure as amended bythe Act of 1976 are useful. Section 24(5) as it now stands says :-
'Asuit or proceeding may be transferred under this section froma Court which has no jurisdiction to try it.'
This is a new power which can be most usefully exercised in thiscase. Hence, although the Commercial Sub Judge did not have jurisdiction to try the suit, this is a suitable case which should be transferredunder Section 24 of the Code from the Court of Commercial Sub Judgeto the Court of the District Judge. I further hold that the District Judgemay send it to any other Additional District Judge, if he so desires.
(5) Hence, I accept this Revision to the extent that the order passed by the Commercial Sub Judge is wrong. He had no jurisdiction to directthe file to be placed before the District Judge for transferring it to acompetent court, but this Court has the power to make such a transfer,and accordingly, I transfer the proceedings from the Commercial SubJudge who had no jurisdiction to the District Judge who has jurisdiction.I also in turn direct that the District Judge may send it to any other Ad-ditional District Judge for further trial. The parties to appear before theDistrict Judge on 5/07/1977. No order re: costs.
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