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Padu Mohammad and ors. Vs. Chutra Nath Chaudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.203
AppellantPadu Mohammad and ors.
RespondentChutra Nath Chaudhury and ors.
Cases ReferredCourt. Ladhaji Nathaji v. Hari
Excerpt:
provincial small cause courts act (ix of 1887), section 25 - civil procedure code (act v of 1908), order vii, rule 10--jurisdiction of small cause court judge to dismiss suit on merits after holding it to be non-cognizable. - .....small cause courts, as is clear from order l, provides that the plaint shall, at any stage of the suit, be returned to the plaintiff for presentation to the court in which the suit should have been instituted. the words 'at any stage of the suit' were introduced in the code of 1908, and did not appear in the corresponding provision of the code of 1882, namely, section 57. these words really amount to a legislative approval of the decision of a full bench of the bombay high court in the case of prabhakarbhat v. vishwambhar pandit 8 b. 313 : 4 ind. dec. (n. s.) 583. consequently, it was incumbent on the small cause court judge to return the. plaint to the plaintiff for a presentation to the proper court. ladhaji nathaji v. hari 1 bom. l. r. 176 : 23 b. 679 : 12 ind. dec. (n. s.) 454. the.....
Judgment:

1. We are invited in this Rule to set aside a decree of dismissal made by a Court of Small Causes. The suit was in essence for rescission of a contract, and in the alternative, for declaration that the contract was either void or voidable and for consequential reliefs. Objection was taken by the defendants that the suit was excluded from the cognizance of a Court of Small Causes under Clauses 16 and 19 of the Second Schedule to the Provincial Small Cause Courts Act. The defendants also objected to the claim on the merits. The Small Cause Court Judge found that the suit was not cognizable in his Court under Clauses 16 and 19 : but, notwithstanding this conclusion, he proceeded to try the case on the merits and ultimately dismissed it. The plaintiffs now contend that the only course open to the Judge was to direct that the plaint be returned to the plaintiffs for presentation to the proper Court. This view has been controverted by the defendants. In our opinion the order made by the Small Cause Court Judge is obviously wrong.

2. Order VII, Rule 10 of the Code of 1908, which applies to Provincial Small Cause Courts, as is clear from Order L, provides that the plaint shall, at any stage of the suit, be returned to the plaintiff for presentation to the Court in which the suit should have been instituted. The words 'at any stage of the suit' were introduced in the Code of 1908, and did not appear in the corresponding provision of the Code of 1882, namely, Section 57. These words really amount to a legislative approval of the decision of a Full Bench of the Bombay High Court in the case of Prabhakarbhat v. Vishwambhar Pandit 8 B. 313 : 4 Ind. Dec. (N. S.) 583. Consequently, it was incumbent on the Small Cause Court Judge to return the. plaint to the plaintiff for a presentation to the proper Court. Ladhaji Nathaji v. Hari 1 Bom. L. R. 176 : 23 B. 679 : 12 Ind. Dec. (N. S.) 454. The Rulo is accordingly made absolute, and the order of the Small Cause Court Judge set aside. The plaint will be returned to the plaintiff in order that he may present it to the proper Court for trial of his claim. As the Rule has been opposed, we make it absolute with costs which we assess at one gold mohur. We are of opinion that the Rule should not have been opposed, and if it had not been opposed, we should not have been disposed to allow costs to the petitioner.

3. It is conceded that this judgment will govern the analogous Rules (Nos. 896 to 899 of 1916). These Rules also are made absolute with costs---one gold mohur in each case.


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