Govinda Menon, J.
1. This raises a question .of some importance regarding the practice and procedure observed in the lower Courts, though instances like the one in question are not of common occurrence.
2. The plaintiff in O.S. No. 146 of 1943, on the file of the District Munsiff, Vizagapatam, is the appellant in the second appeal. He filed the suit, out of which this second appeal arises, in the first instance in the Court of the Subordinate Judge,. Vizagapatam, for the recovery from the defendant of 55 cents of land on the ground that the same was encroached upon by the defendant. The plaint was presented in the Court of the Subordinate Judge on 3rd February, 1942, by two petitioners, Messrs. C.V. Somayajulu and P. Gangadharam, with a properly executed and attested vakalat in their favour. The suit was numbered as O.S. No. 10 of 1942, in the usual course and summons was ordered to the defendant. The defendant who appeared contested that the suit has been overvalued for the purpose of pecuniary jurisdiction. It was his case that if the land had been properly valued the suit could have been filed in the District Munsiff's Court of Vizagapatam as the property, the subject-matter of the contest, would be worth only a sum below Rs. 3,000. The learned Subordinate Judge appointed a commissioner to value the properties and the result of the valuation by the commissioner was that it was found that the suit was of the value of below Rs. 3,000 and therefore should have been presented in the Court of the District Munsiff as the Court of the lowest pecuniary jurisdiction. Thereupon the learned Judge directed the return of the plaint on 13th July, 1943. The original plaint was taken back on the same date as it was returned and presented immediately thereafter on the very date itself before the District Munsiff of Vizagapatam; but as there was no direction to return the vakalat filed in the Sub-Court along with the plaint it was not taken back at all by the pleaders. When the plaint was presented again before the District Munsiff, no vakalat was filed. The reason for not doing so is not apparent from the records and neither of the lower Courts gives any reason why such a procedure was resorted to. After the evidence was, let in, and during the course of the arguments before the District Munsiff, it was pointed out by the defendant's vakil that the suit should be dismissed because no vakalat was filed on behalf of the plaintiff when the plaint was presented in the District Munsiff's Court. Apparently, this defect was not noticed till then. Arguments were heard on this aspect of the case and the learned District Munsiff holding that the proceedings before his Court cannot be said to be a continuation of the proceedings in the Subordinate Judge's Court, came to the conclusion that the provisions of Rules 1 and 4 of Order 3, Civil Procedure Code, have not been complied with and hence held that the plaint was not properly presented and on that ground the suit was dismissed. In his judgment the learned District Munsiff considered in extenso the evidence on issues 1 to 3 also and gave a finding that the plaintiff was entitled to recover possession from the defendants of 27.54 cents of land encroached upon by the latter. Even so, in view of his opinion that the whole proceedings were void as the plaint had not been properly presented, the suit was; dismissed.
3. The plaintiff took up the matter in appeal and the learned Subordinate Judge of Vizagapatam during the course of the hearing of the appeal admitted the original vakalat which had been lying in his own Court as additional evidence under Order 41, Rule 27, Civil Procedure Code, after examining Mr. P. Gangadharam, the junior vakil who presented the plaint as P.W. 4. The learned Judge was therefore satisfied that when the plaint was originally filed in the Sub-Court, there was a proper vakalat, though it was not taken back when the plaint was returned and the same was not re-presented before the District Munsiff. According to the learned Subordinate Judge, the pendency of the plaint before the District Munsiff cannot be said to form a continuation of the proceedings before the Subordinate Judge's Court. It should be deemed to be new proceedings, and such being the case in the absence of a proper vakalat which only could initiate such proceedings the order of dismissing the suit by the Distric Munsiff was correct and the Subordinate Judge confirmed the same. The learned Judge did not accept the contentions put forward by the defendant's counsel, nor did he agree with the decision in Debt Lal v. Krisknaj (1922) 67 I.C. 296 citedbefore him. The result, according to both the lower Courts, was unfortunate, but as both of them viewed that legally the plaintiff was not entitled to any relief the suit was dismissed.
4. The plaintiff comes up in a second appeal, and Mr. Tatachari appearing for the appellant raises before me various contentions to the effect that the procedure; adopted by the lower Courts was wrong and that he is entitled to a decision of the case on the merits. Before I discuss the legal aspect of the question in issue one observation falls to be made and that is that when it was discovered during the course of the trial in the Munsiff's Court that no vakalat had been filed it was the duty of the counsel appearing for the plaintiff to have immediately made an application to the District Munsiff to call for the vakalat from the Subordinate Judge's Court or to have applied straightaway to the Subordinate Judge's Court for the return of the vakalat and after getting it back present the same to the District Munsiff's Court. Mr. Tatachari is not able to explain why this obvious procedure/ which ought to have occurred to any legal practitioner, was not adopted in the lower Courts. Anyhow that does not matter in the light of the opinion which I am expressing in this case.
5. The question, therefore, for consideration is whether the proceedings before the District Munsiff could be deemed to be a continuation of the proceedings before the Subordinate Judge's Court. As already stated, the presentation before the Subordinate Judge's Court was without any formal defect as the suit was numbered as O.S. No. 10 of 1942. Further proceedings were resorted to as is evidenced from the circumstance that the value of the properties was fixed by that Court after consideration of the evidence before that Court. Leach, C.J. and Krishnaswami Ayyangar, J., had to consider a case in Ramaswami Aiyar v. Veerarayan Raja : AIR1941Mad711 where aplaint which should have been filed in a Munsiff's Court was, in fact, presented to the Sub-Court and after various proceedings before the Sub-Court was returned for presentation to the proper Court, viz., the District Munsiff's Court. It was contended in that case that the re-presentation of the plaint in the Munsiff's Court should be deemed to be the actual genesis of the proceedings and that all the previous pendency and proceedings before the Sub-Court should be deemed to have been wiped off in order that the plaintiff may be confronted with the objection regarding certain new rights which the defendants had acquired by the subsequent passing of the Malabar Tenancy Act. The learned Judges expressed the opinion that the presentation of a plaint to a Court which had no jurisdiction to try the suit cannot be said to be the institution of the suit even though the plaint had been accepted as being in order and registered. But, when a plaint is presented to a Court having jurisdiction as the Subordinate Judge's Court in that case, and that Court accepted the plaint as being in order it must be held that the suit had been instituted. Further they were of opinion that because at some later stage as the result of a finding on the value of the subject-matter of the suit it was found that the plaint should have been presented to a Court having lower jurisdiction and the plaint is returned for presentation to that Court it does not mean that the suit had not been instituted and therefore when a p1aint has been so returned and re-presented to the Court having jurisdiction the date of the original institution of the suit is the date on which the plaint was filed and not the date on which it was re-presented. As I read the judgment of the learned Judges it seems to me that the principle enunciated there is that if the Court in which the suit was first instituted was having territorial and pecuniary jurisdiction, though not the lowest jurisdiction, it cannot be said that the suit was not instituted at all.
6. It is not disputed that the Sub-Court of Vizagapatam has territorial jurisdiction over the locality in which the plaint property is situate and but for the provision of the Suits Valuation Act that a suit should be instituted in the Court of the lowest pecuniary jurisdiction, the Subordinate Judge would have jurisdiction to receive the plaint and try the suit. The Subordinate Judge will also have' jurisdiction if the suit is transferred to him by the District Court for disposal by him. Therefore, it seems to me, that the presentation of the plaint in this case was to a Court having jurisdiction and there is no initial defect of jurisdiction as regards the original proceedings. Now, if that is so, can it be said that the subsequent return of the plaint and its presentation in the Court of the District Munsif are not a continuation of the proceedings in a suit which has been properly instituted. There is a paucity of authority of this Court on this aspect of the question. But Mr. Tatachari invites my attention to two decisions of the Judicial Commissioner of Nagpur, Hallifax, A.J.C. in which the question akin to the one for consideration now had been discussed.
7. In Debi Lal v. Krishnaji (1922) 67 I.C. 296 the learned Additional Judicial Commissioner held that where a plaint which was returned for presentation to the proper Court was on the very day presented to the proper Court and the pleader who thought that his power to act for the plaintiff had expired and asked for time to produce a fresh vakalatnama and the District Munsif accepted the plaint and treated it as presented and the case was decided on the merits, it was a proper presentation. In that case objection was taken in appeal that the District Munsif had wrongly exercised his jurisdiction under Section 151, Civil Procedure Code, in having given time to the pleader to file a proper vakalatnama before him. The learned Judicial Commissioner was of opinion that it was a proper case for the application of Section 151, and that the Court had power under that provision to allow the plaintiff time for the production of the vakalatnama and such an act would not nullify the provisions of Order 3, Rules 1 and 4, Civil Procedure Code. He further held that a vakalatnama once executed remains in force till all the proceedings in the suit have ended. Various earlier decisions were referred to by the learned Additional Judicial Commissioner and he came to the conclusion that there was nothing wrong in the District Munsif having given time to the plaintiff's pleader to file a fresh vakalat. At page 126 there are observations to the following effect:
The fundamental assumption made by the learned pleader for the plaintiff, to which both. Judges who dealt with the case and both parties have all along assented, is that the vakalatnama executed for the purposes of the suit in the senior Munsiff's Court expired with the return of the plaint and did not enure for the purposes of the further proceedings in the junior Munsiff's Court. This appears to be wrong. Under Rule 4(2) of Order 3, the original appointment of the pleader in the senior Munsiff's Court remained in force till all proceedings in the suit were ended so far as regards the plaintiff.
8. Later on in the same page there are these observations:
All that is necessary, and therefore all that is permissible for me to say is that in this particular case the proceedings in the suit instituted in the Court of the senior Munsiff did not end so far as regards the, plaintiff for the purposes of Rule 4(2) of Order 3, when that Court returned the plaint to his pleader, but were continued by and in the proceedings in the Court of the junior Munsiff.
9. Now, the observations contained in this case are of direct bearing so far as the facts in our case are concerned. The retention of the vakalat in the Subordinate Judge's Court would not in any way detract from the fact that when the plaint was subsequently presented in the District Munsif's Court it was a continuation of the suit that had been originally instituted. The same Additional Judicial Commissioner in another case, Mahamshtrqya Jnan Kosh v. Bijjulal A.I.R. 1923 Nag. 182 expressed the opinion that the practice of not returning the vakalat when the plaint is retuned is wrong. The original vakalat enures for the purpose of the suit in the Court in which the plaint is subsequently filed under Rule 4(2) of Order 3, even if it contains no express provision to. that effect, and, therefore ought in every case to be returned along with the plaint. There are other points, discussed by the learned Judicial Commissioner, viz., that a vakalat in which the pleader's name is not mentioned is a valid vakalat. I am not called upon to express any opinion regarding the correctness of that view in this case. It seems to me, therefore, that even though the vakalat was not produced before the District Munsif, still its existence being now proved to be correct, the District Munsif should not have dismissed the suit on this technical (sic).
10. There is another aspect which has to be considered and that is whether the presentation of a vakalat along with the plaint is absolutely necessary in order to make the presentation a valid one. We have the opinion of Roe and Coutts, JJ., of the Patna High Court in Sheik Palat v. Sarwan Sahu (1918) 55 I.C. 271 to the effect that though it may not be necessary to file a vakalatnama with a petition of appeal it is certainly necessary that there should be at the time of the presentation of the appeal a vakalatnama in existence bearing the signature of the appellant or his attorney. The raison deetre of this decision is that the plaint or memorandum of appeal should be presented by a person with a duly authorised power of agency. There is no provision in the Civil Procedure Code or in the Rules of Practice, so far as my attention has been invited to, making it obligatory that along with the presentation of the plaint do instanti a vakalat also should be filed. If the Court is convinced that at the time the plaint was presented the pleader had in his possession or power a properly executed and attested vakalat then the Court is entitled to come to the conclusion that though there was some irregularity in the procedure adopted it is a matter which can be cured under Section 151, Civil Procedure Code. What is necessary and essential is the existence of the power in the possession or power of the person who acts. My attention has been invited to a decision of Burn and K.S. Menon, JJ., in Sri Sri Nandamani Ananga Bhima Deo v. Sri Madana Mohana Deo : (1936)71MLJ604 There the learned Judges had to consider a case where at the time an execution petition was presented there had been no vakalat at all executed in favour of the advocate and, therefore, the learned Judges held that that was not a mere irregularity but was an illegality, or a voidness which cannot be cured or condoned They were of opinion that it is not a case of any defect in the particulars of any document; it being a case simply of want of authority on the part of the pleader to act. I respectfully agree with these observations, but this decision cannot be said to run counter to the cases discussed by me above whereas here in-our case as a matter of fact, there was a proper vakalat in favour of the pleader and that vakalat had been already presented to a Court having jurisdiction. In 'the view which I am taking it is unnecessary for me to consider the observations contained in Hirabai v. Bhagirath Ramachandra I.L.R. (1945) bom. 819 as to whether the failure to comply with the provisions regarding the presentation of a plaint is a mere irregularity or not so that if the person, presenting it is not as a fact authorised by a document to do so whether the presentation would be illegal as would oust the jurisdiction of the Court. The learned Judges Mr. Justice Divatia and Justice Lokur were of opinion that in such a case the Court would have discretion to permit the irregularity to be cured and if the pleader had acted in good faith and without gross negligence the Court would allow that irregularity to be cured. They further held that the suit must be deemed to have been filed when it was first instituted and under Section 99, Civil Procedure Code, the decree passed in favour of the plaintiff should be confirmed on appeal on the ground that there was no irregularity. In that case it would appear that the counsel who presented the plaint did not have or file a vakalat along with it. Still the learned Judges held that it is a matter which can be cured under Section 99, Civil Procedure Code. It seems to me, therefore, that the learned District Munsif was wrong in dismissing the suit on the ground of this alleged illegality. Moreover when once the lower appellate Court had admitted the vakalat as additional evidence in appeal it should be deemed to be as if the vakalat was in existence even in the trial Court.
11. Mr. B.C. Seshachalam, counsel for the respondent, contended that on the merits the plaintiff has no case to succeed. If both the lower Courts had come: to the conclusion on the merits that the plaintiff's suit was unsustainable there would have been no necessity to interfere on this technical point. But the only finding now before me on the merits is in favour of the plaintiff's case.
12. In these circumstances, as the dismissal of the suit was not justified in law, I would set aside the decision of both the lower Courts and remand the suit to the trial Court to be tried afresh after taking evidence. The plaintiff is responsible for the plight in which he finds himself. He should have taken steps to get the vakalat transmitted from the Sub-Court to the District Munsif's Court and should have applied to that Court for the condonation of any irregularity, if there had been one. I am of opinion that if such a thing had been done, there would have been no irregularity at all. Such being the case, the plaintiff should be liable irrespective of the ultimate result of the suit for all the costs which the defendant had to incur up till now in the trial Court, in the Court of appeal and in this Court and the fresh trial of the suit will be conditional upon the plaintiff' paying to the defendant within one month after the receipt of the records in the trial Court such amount of costs. If the plaintiff does not pay the costs to the defendant within one month after the receipt of the records in the trial Court the suit will stand dismissed. If he conforms to this order the District Munsif will restore the suit to its original number on his file and dispose it of according to law. The Court-fee in the memorandum of second appeal will be refunded and if the plaintiff is so advised he may move the lower appellate Court for the refund of the court-fee paid there.
13. No leave.