1. This appeal by the defendant arises out of a suit for recovery of house rent. Both the Courts below have decided the suit against the present appellant.
2. A preliminary objection was raised by the plaintiff-respondent regarding the maintainability of the appeal. It appears that the appeal has already been dismissed by this Court as against pro forma defendant No. 5. It is contended, therefore, on behalf of the plaintiffs-respondents that the whole appeal has become incompetent. This objection cannot, however, be sustained. It appears from page -2 of the Paper Book that by an amendment petition the plaintiff stated that she had purchased by a registered Kobala 1/7th share belonging to pro forma defendant No. 5. Reference may also be made to pages 17, 18 and 19 of the Paper Book. In the circumstances disclosed above, no relief was sought against pro forma defendant No. 5 and the dismissal of the appeal against him cannot jeopardise the maintainability of the appeal against the remaining respondents. The-present objection is overruled accordingly.
3. On behalf of the appellant only one point was pressed before me. It is contended that the trial Court viz., the 2nd Court of the Munsiff at Alipore was not competent to try the suit and as such the decree must be set aside. This objection was raised by the defendant in the trial Court itself but decided against him by the learned Munsiff.
Originally this suit was filed as Small Causes Court Suit No. 1111 of 1939 in the Court of Small Causes at Sealdah. On the objection of the defendant the Small Cause Court Judge returned the plaint under Section 23 of the Provincial Small Cause Courts Act for presentation to the proper Court and then it was filed in the 3rd Court of Munsif at Alipur within whose jurisdiction the disputed property lies and here again the objection of the defendant regarding the competency of the Court having been dismissed, an appeal was preferred by him to the District Judge who dismissed the suit holding that it is not maintainable unless the entire rent due is claimed in the suit.
There was an appeal to this Court and this Court sent back the case to the trial Court to be decided afresh according to law after giving the plaintiff an opportunity to amend the plaint. There was also a decision to the effect that the suit should be decided on the evidence already taken and such additional evidence, if any, as the parties might choose to adduce. The plaint has been amended accordingly & claim has now been laid at Rs. 1200/- and odd. By such amendment, however, the claim exceeded the pecuniary jurisdiction of the trial Court (3rd Court) and thereupon on the prayer of the District Judge the suit was transferred to the 2nd Court having pecuniary jurisdiction and this appeal is directed against the trial of the suit by the 2nd Court. The attempt of the defendant to get the District Judge to vacate the order of transfer was unsuccessful.
4. It is contended on behalf of the appellant that the transfer of the suit (under Section 24, C. P. C-) by the District Judge from the Court (3rd Court) where the suit had been filed (after return of the plaint by the Small Cause Court Judge) to the 2nd Court was without jurisdiction and that being so, the trial of the suit by the 2nd Court was also without jurisdiction.
In support of this contention reliance hasbeen placed upon the case of -- 'Ledgard v.Bull' 13 Ind App 134 (PC) (A) as also upon thecase of -- 'Peary Lal v. Komal Kishore', 6 Cal30 (B); -- 'Pachoni Awasthi v. Illahi Baksh' 4All 478 (C); -- 'Ram Narain v. Parmeswar Na-rain', 25 Cal 39 (D).
In -- 'Ledgard's case (A)', the Judicial Committee 'entirely' approved of the decision of this Court in -- 'Peary Lal Mazoomdar's case (B)', wherein it was held that the superior Court cannot make an order of transfer of a case under Section 25 (corresponding to the present Section 24) of the Civil Procedure Code unless the Court from which the transfer is sought to be made has jurisdiction to try it. In the present case, clearly the 3rd Court had no jurisdiction to try the suit after amendment of the plaint, because of want of pecuniary jurisdiction and it is contended, therefore, the transfer of the suit by the District Judge to the 2nd Court comes within the mischief of the principle laid down in the above cases.
There is, however, one case viz. -- 'Bechan Missir v. Markanda Missir' : AIR1936All335 which supports the view of the learned Munsiff (2nd Court) repelling the objection preferred by the defendant. The learned Munsiff has pointed out that as originally framed, the suit was within the jurisdiction--both territorial and pecuniary --of the 3rd Court and that being so, the District Judge was competent to transfer it subsequently to the 2nd Court even after the amendment of the plaint whereby the suit went beyond the pecuniary jurisdiction of the 3rd Court.
There is a passage in -- 'Ledgard's case (A)' which runs thus:
'The first and an essential step in the maintenance of a suit is its due institution.'
My attention was drawn by the learned advocate for the appellant to Order 7, Rule 10 of the Code of Civil Procedure which makes it obligatory on the Court to return the plaint to be presented to the Court in which the suit should have been instituted. It was contended on behalf of the appellant that the only course open to the plaintiff after she found that the pecuniary jurisdiction of the Third Court had been exceeded by the amendment of the plaint was to seek for return of the plaint and it was then not open to her to achieve the same object by moving the District Judge to transfer the suit under Section 24.
So far as this contention is concerned, there is, however, a difficulty in the way of the appellant. This Court in its order of remand directed, as has been mentioned before, that the suit should be decided on the evidence already taken and such additional evidence, if any, as the parties might choose to adduce. If the plaint had been returned under Order 7, Rule 10, this direction to which the defendant himself had submitted would have been flouted. He did not choose to move this Court for the modification of the above direction in the altered circumstances. In the peculiar circumstances, therefore, of the present case, I would follow the principle laid down in -- ' : AIR1936All335 ', and hold that the appellant cannot attack now the competency of the Munsif, 2nd Court to try the suit.
5. The facts of the present case are, to my mind, if any, stronger than those of -- 'Bechan Missir's case (E)'. I am unable, therefore, to uphold the objection urged before me on behalf of the appellant.
6. In the result, the appeal is dismissed with costs.