Alfred Henry Lionel Leach, C.J.
1. The second appellant is the karnavan of a Malabar tarwad.
2. On the 8th January, 1906, the jenmi, who is now represented by the first respondent, executed in favour of the tarwad of the appellant a kanom mortgage in respect of 58 parcels of agricultural land. On the 6th January, 1925, the jenmi executed a melcharth in favour of the second respondent, who on the 4th February, 1929, filed a suit in the Court of the Subordinate Judge of Calicut to enforce the redemption of the kanom. There were 136 defendants, the karnavan, 22 other members of the tarwad and 113 tenants. The contesting defendants pleaded that the Subordinate Court had no jurisdiction because the plaintiff had overvalued the property and that on a true valuation it should be filed in. the Court of the District Munsif of Chowghat. After inquiry the Subordinate Judge held that the allegation of overvaluation was well founded and by an order dated the 4th March, 1930, directed that the plaint be returned to the second respondent for presentation to the District Munsif's Court. The plaintiff appealed to the District Judge of South Malabar, who came to the conclusion that the suit had not been overvalued and accordingly directed the Subordinate Judge to hear and decide it. The contesting defendants then appealed to this Court, and Jackson, J., who heard this appeal came to the conclusion that the District Judge had erred and that the order of the Subordinate Judge should be restored. In pursuance of the order of the learned Judge the second respondent applied for the return of the plaint and it was handed to him by the Subordinate Judge on the 31st March, 1932. On the 11th August, 1932, the second respondent presented the plaint to the District Munsif.
3. In the meantime the Malabar Tenancy Act, 1929 had been passed and came into force on the 1st December, 1930, but in Section 1 (3) there is a proviso in these terms:
Provided that in all suits for eviction instituted after the 30th July, 1929, and pending in the Court of first instance on the date when the Act comes into force, which would have been governed by the provisions of this Act had it been in force at the time of their institution, the rights and obligations of the parties concerned shall be regulated by the provisions of this Act.
4. By virtue of Sections 22 and 23 of the Act a kanomdar is now in a position to apply for a renewal of his kanom.
5. On the 29th March, 1933, the appellant as the karnavan of the tarwad in whose favour the kanom of the 8th January, 1906, had been executed applied to the District Munsif of Chowghat for the renewal of the kanom. The second respondent objected. He relied on the proviso in Section 1 (3) of the Act, as the suit instituted by him for the redemption of the kanom was in effect a suit for eviction. The validity of this objection depends on the date on which the suit was 'instituted'. If it was instituted on the 4th February, 1929, the date on which the plaint was presented to the Subordinate Judge, the appellant was not entitled to apply for a renewal of the kanom, but if the date of institution is the 11th August, 1932, when the plaint was presented to the District Munsif of Chowghat the proviso will apply and the appellant's application for a renewal of the kanom will lie.
6. The District Munsif held that the suit must be deemed to have been filed on the date the plaint was presented to the Subordinate Judge of Calicut, namely, the 4th February, 1929, and accordingly he dismissed the application of the appellant. The appellant appealed to the Subordinate Judge of Ottapalam, who agreed with the District Munsif. The appellant then appealed to this Court, but again without success. The appeal was heard by King, J., who agreed with the Subordinate Judge's conclusion but on grounds somewhat different from those stated by the Subordinate Judge. The learned Judge having given a certificate under Clause 15 of the Letters Patent the present appeal has been filed against his decision.
7. If it had been the case that the Subordinate Judge of Calicut had no jurisdiction to entertain the second respondent's suit we should have no hesitation in accepting the contention of the appellant that the date of the institution of the suit was the 11th August, 1932, when the District Munsif of Chowghat became seised with the matter. The presentation of the plaint to a Court which has no jurisdiction to try the suit cannot be said to be the institution of the suit, even though the plaint has been accepted as being in order and registered. Before a suit can be deemed to be 'instituted' the plaint must be presented to a Court having jurisdiction. But notwithstanding that here the plaint should have been filed in the Court of the District Munsif by reason of Section 15 of the Code of Civil Procedure, which says that every suit shall be instituted in the lowest Court competent to try it, the Subordinate Judge had in fact jurisdiction to try it and he received his jurisdiction under the provisions of Section 12 of the Madras Civil Courts Act. That section says that the jurisdiction of a District Judge or a Subordinate Judge extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature. There is nothing in the rules of the Code of Civil Procedure which takes away the jurisdiction conferred by Section 12 of the Madras Civil Courts Act. If no objection to the valuation had been taken the Subordinate Judge would have heard and decided the suit and the decree passed by him would have had full validity, subject, of course to an appeal.
8. Mr. Govinda Menon has very properly conceded that the Subordinate Judge had jurisdiction, but he has said that inasmuch as the plaint should have been presented to the lowest Court having jurisdiction the suit must be deemed to have been instituted when it was presented to the District Munsif. We cannot accept this argument, as we have already indicated. When a plaint is presented to a Court having jurisdiction and that Court accepts the plaint as being in order it must be held that the suit has been instituted. Because at some later stage, as the result of a finding of fact on the question of the value of the subject-matter of the suit, it is found that the plaint should have been presented to another Court having jurisdiction and that the plaint is returned for presentation in that Court, it does not mean that the suit has not been instituted. When a plaint has been presented to a Court having jurisdiction a transfer of the case to another forum cannot mean the cancellation of the institution.
9. Mr. Govinda Menon has relied on the decision of the Bombay High Court in Hirachand Succaram v. G. I. P. Railway Co., Bombay I.L.R.(1928)Bom. 548, but we fail to see what application the judgment in that case has here. On the 10th March, 1925 and on the 29th June, 1925, two suits were instituted in the Court of the First Class Subordinate Judge at Sholapur against the Great Indian Peninsular Railway. At that time the Railway was controlled by a limited liability Company, but on the 1st July, 1925, it came under State control and it was necessary to add as a defendant to the suits the Secretary of State for India in Council. Up to the happening of this event the Subordinate Judge had jurisdiction to try the suits, but inasmuch as they had to be converted into suits against the Secretary of State for India in Council his jurisdiction ceased and it was necessary for the plaintiff to take back the plaints and present them to the District Court. Before the District Judge the question was raised on behalf of the Secretary of State whether the suits were bad for want of notice under Section 80 of the Code of Civil Procedure and the date of the institution of the suits became a material factor. The Bombay High Court held that the date of the suits must be taken to be the date on which the plaints were presented to the District Court. The difference between the Bombay suits and the suit now before us is that in the Bombay suits the Subordinate Judge had no jurisdiction to try them, but in the case before us the Subordinate Judge had jurisdiction, although after the suit had been instituted it was found that another Court also had jurisdiction and that the Code of Civil Procedure required the suit to be tried by the other Court as the Court of First Instance.
10. We hold that the suit with which this appeal is concerned was instituted on the 4th February, 1929 and therefore the appellant had no right of a renewal of the kanom. Consequently the appeal will be dismissed but there will be no order as to costs as it has proceeded ex parte.