Banerjee and Brett, JJ.
1. This is a Rule calling upon the opposite party to show cause why the order of the District Judge returning the petition of appeal should not be set aside and the case sent back to him for a proper decree being made, or why the decree pronounced by the Munsif should not be set aside upon the ground that he had no pecuniary jurisdiction to entertain the suit, or why such other order as to this Court may seem fit and proper should not be made.
2. The facts of the case are shortly these: A suit was brought in the Court of the Munsif of Sassaram, it being valued at less than one thousand rupees. Amongst other objections the defendant, the petitioner before us, urged that the suit had been undervalued and, if properly valued, it would He not in the Munsif's Court, but in the Court of the Subordinate Judge. The Munsif disallowed this objection and disposed of the suit on the merits, giving the plaintiff a decree. Against that decree the defendant preferred an appeal to the District Judge. The District. Judge found upon the question of valuation that the suit had been undervalued and that the proper value of the suit was over five thousand rupees; and having come to that conclusion he held that he had no jurisdiction to entertain the appeal, and he accordingly returned the memorandum of appeal to the appellant's pleader, evidently on the ground that he had no jurisdiction to entertain the appeal and 'that the petition of appeal should be presented to the High Court; the exact terms of the District Judge's order being these: 'Presented by Mangal Charan, pleader, on the 29th September 1902 and returned to him today, as it. is found that the value of the appeal exceeds five thousand.'
3. Against this order the petitioner, the defendant in the first Court, moved this Court and obtained the Rule that is now before us. A question was raised at the hearing of the Rule as to whether an appeal lay from the order of the District Judge just referred to, and whether Section 622 of the Code of Civil Procedure, under which our interference is asked for in this Rule, was therefore inapplicable to the case.
4. The only ground upon which it could he said that an appeal lay against the order would he by reading Section 57 with Section 582 of the Code, and construing Clause (6) of Section 688 to include the case of the returning of a memorandum of appeal for presentation to the proper Court; and the case of Kunhikutti v. Achotti (1891) I.L.R. 14 Mad. 462, might he referred to as supporting that view. We are however unable to accept as correct the view that an appeal lies under Clause (6) of Section 588 of the Code against the order of an Appellate Court returning a memorandum of appeal for presentation to the proper Court. The terms of Section 588 do not cover such a case; nor can the reading of Section 57 with Section 582 justify the interpellation of the words, 'memorandum of appeal' after the word 'plaints' in Clause (6) of Section 588. Although Section 582 authorizes an Appellate Court to order the plaint in the suit to be returned for presentation to the' proper Court and although, when such an order is made by an Appellate Court, an appeal from it may lie under Clause (6) of Section 588, we do not think that the reading of sectionwith Section 57 would warrant our holding, that Clause (6) of Section 588 would bear the extension of meaning contended for. With all respect for the learned Judges, who decided tne case of Kunhikutti v. Achotti (1891) I.L.R. 14 Mad. 462. we must therefore say we are unable to assent to the view expressed by them. The other cases that might be cited upon the point, namely, Chinnasami Pillai v. Karuppa Udayan (1896) I.L.R. 21 Mad. 234, Pachaoni Awasthi v. Ilahi Bakhsh (1882) I.L.R. 4 All. 478, and Goor Bux Sahoo v. Birj Lal Benka (1899) I.L.R. 26 Calc. 275 are cases of orders by an Appellate Court returning plaints for presentation to the proper Court, orders which, as we have pointed out above, would be appealable under Clause (6) of Section 588 by reason of the provisions of Section 582 authorizing the Appellate Court to pass such orders at the hearing of the appeal.
5. That being so, we think that Section 622 of the Code of Civil Procedure applies to the case, and the Rule must therefore be determined on its merits. We need hardly add that the view we take, that no appeal lies from an order of an Appellate Court such as the one complained of in this case, will not be attended with any hardship or difficulty to any party aggrieved by such an order, as there is a remedy under Section 622 of the Code.
6. Now, the order here complained of was made by the District Judge on the ground that he had no jurisdiction to hear the appeal by reason of the proper value of the suit exceeding rupees five thousand. But the suit was brought in the Munsif's Court; it was decided by that Court; and the appeal was an appeal against the decision of the Munsif. That being so, the appeal clearly lay to the Judge under Section 21, Sub-section (2) of the Bengal, N.W.P. and Assam Civil Courts Act (XIX of 1887), and the learned Judge was bound to determine the appeal according to law. Moreover it was not enough, for the disposal of the appeal, for the Judge to find that the proper valuation of the suit took it out of the Munsif's jurisdiction and that the Munsif's decree was therefore liable to be reversed. The learned Judge was bound to hear the appeal and to dispose of it, having, regard to the provisions of Section 11 of the Suits Valuation Act (VII of 1887), and to determine this, amongst other questions, namely, whether the undervaluation of the suit has prejudicially affected the disposal of the suit on its merits.
7. It might be argued for the petitioner that according to the learned Judge's finding the correct valuation of the suit not, only took the suit out of the jurisdiction of, the Munsif's Court; but also took the appeal from the decision. of the first-Court, if the suit had been rightly valued and instituted in the proper Court, out of the jurisdiction of the Court of the District Judge, or in other words, that it changed the venue of the appeal; and it that was so, we should not send the case back to the District Judge for determination of the appeal having regard to the, provisions of Section 11 of the Suits Valuation Act, but we should now ourselves hold that the decree of the munsif must be set aside, as the undervaluation of the suit has prejudicially affected its disposal on the merits by reason of such undervaluation having changed the venue of the appeal, and we should direct the plaint to be returned for presentation to the Court of the Subordinate Judge; because any determination by the District Judge of the question whether the under valuation has prejudicially affected the disposal of the suit on the merits, will be a determination of the merits of the case by an Appellate Court, which would not have been competent to hear the appeal, if the suit had been rightly valued and instituted in the proper Court; the appellate tribunal in such a case being the High Court.
8. In our opinion, the simple answer to an objection like this is this, that if the District Judge at the bearing of the appeal before him decides that the under valuation of the suit has not prejudicially affected the disposal of the suit on the merits, it will be open to the party aggrieved to have the decision of the District Judge examined by this Court on the merits and to have ultimately the decision of this Court upon the question whether the under valuation has prejudicially affected the disposal of the suit on the merits. It will be time enough for the party aggrieved to have the point determined by the Court, when the occasion properly arises. It would be premature for us now at this, stage of the case without going into the merits to pronounce an opinion that as a matter of course the decision of the Munsif has prejudicially affected the disposal of the case on the merits.
9. At the same time we should observe that it would be for the learned District Judge, when hearing the appeal before him, to consider whether the under valuation of the suit has not prejudicially affected the disposal of the suit on its merits, regard being had to all the circumstances of the case, one of which would be the grossness of the under valuation.
10. The result then is, that the order of the District Judge returning the memorandum of appeal to the appellant must be set aside, and the case sent back to him in order that he may dispose of the appeal before him with reference to the directions given above.
11. The costs of this Rule the petitioner is entitled to.
12. The question of refund of any Court-fee will be for the learned Judge to determine, when disposing of the appeal.