Richard Garth, C.J.
1. In this case, an objection that was made in the Court below by the defendant was that the property was undervalued, and that, consequently, the plaintiffs had brought their suit in the wrong Court. That question was gone into by the first Court, which found that the property was undervalued, and that, consequently, the suit should be dismissed.
2. Upon that the plaintiffs appealed, apparently upon the ground that the finding of the first Court was wrong upon the question of valuation. That was a point which, of course, went to the merits of the question. But they also contended that the first Court, finding as it did, ought not to have dismissed the suit altogether; but should, under Section 57 of the Code of Civil Procedure, have returned the plaint to the plaintiffs to be presented to the proper Court.
3. The lower Appellate Court found, that the first Court was right in saying that the suit was undervalued; and the Subordinate Judge also held, that the lower Court was right upon the other point,--viz., in dismissing the suit and not returning the plaint. Both Courts seem to have thus decided upon the ground, that, according to the proper construction of Section 57, a plaint cannot be returned to the plaintiff after the defendant has been called upon to state his case. That is as much as to Say, that a plaint cannot be returned to the plaintiff under that section after the defendant's written statement has been put in.
4. We think that, in this respect, the lower Courts were clearly wrong; Section 57 says nothing of the kind; and the good sense and reason of the matter is certainly against that view.
5. Any objection upon the ground of valuation would naturally come from the defendant. The objection would not appear upon the face of the plaint itself; and the Court would have no means of knowing whether the suit is undervalued or not until the objection had been pointed out in the defendant's written statement.
6. If, therefore, the Courts below were right in the view which they have taken, the provision in Section 57 for returning the plaint to the plaintiff would be virtually useless.
7. We think, therefore, that the plaintiffs were perfectly justified in coming to this Court to have the matter set right.
8. I had at first, I confess, some doubt whether the question was one affecting the merits of the case; but I think it is, because, as regards limitation, it might affect the plaintiffs' rights very materially, whether they had their plaint returned to them or are compelled to bring a fresh suit.
9. Moreover, the provisions of Section 57 seem to be imperative. The words are--'the plaint shall be returned to be presented to the proper Court.' The section, therefore, leaves the Court no option; and if, instead of returning the plaint, the Court dismisses the suit by its decree, that is undoubtedly a matter which affects the merits of the case, and becomes the proper subject of an appeal.
10. We think, therefore, that the case must go back to the first Court in order that the plaint may be returned by that Court to the plaintiffs; and we also think, that the plaintiffs ought to have their costs in this Court. In the Court below we leave the order as to the costs as it was, as we find that the Court has given no costs to either party.