B.K. Mukherjea, J.
1. The petitioners in this rule instituted a suit as plaintiffs in the Court of the Subordinate Judge of Sylhet against the defendants-opposite party claiming recovery of possession of certain lands on establishment of their title to the same. The suit was instituted on 17th January 1940 and the defendants filed their written statement on 28th March 1940 one of their objections being that the suit was overvalued and that it should have been filed in the Court of the Munsif. There was a specific issue raised on this point which was issue 1, and it was worded as follows : 'Has the suit been overvalued? Has this Court jurisdiction to try this suit?' The defendants did not press for a hearing of this issue as a preliminary issue, and the plaintiffs in the usual course got an order for local investigation which was conducted by a commissioner who submitted his report on 11th March 1941. Both the plaintiffs and the defendants filed objections to the commissioner's report, and one witness who was the Sub-divisional Magistrate of Sunamgunj was also examined before that Court. After several peremptory dates were fixed for hearing of the suit it was finally transferred to the Court of the Additional Subordinate Judge of Sylhet and it was taken up for hearing by that Court on 11th November 1942. The issue which raised the question of valuation and jurisdiction was brought up first for hearing and the Court on a consideration of the evidence came to the conclusion that the suit was overvalued and should have been filed in the Court of the Munsif. The result was that the plaint was returned to be presented to the proper Court. Against this order the plaintiffs preferred an appeal to the Court of the District Judge of Sylhet. The learned District Judge affirmed the order of the Subordinate Judge but held that as the Subordinate Judge had jurisdiction to try the suit, although it was the duty of the plaintiffs to file it in the Court of the lowest grade, whatever steps were taken by the parties in the Court of the Subordinate Judge ought to be regarded as validly taken, and the suit in the Munsif's Court would proceed from the stage at which it was left by the Subordinate Judge. Later on, however, the District Judge deleted this portion of the judgment in exercise of his powers under Section 151, Civil P.C. It is against this judgment of the District Judge that the present rule has been obtained.
2. The grievance of the petitioners seems to be that they had to incur considerable expenses in the matter of local investigation which was completed in the Court of the Subordinate Judge and all these costs will be thrown away if the suit is now directed to be filed in another Court. It is argued by Mr. Bose who appears on behalf of the petitioners that as the Subordinate Judge did not lack jurisdiction to try the suit even if it was overvalued, the plaint should not have been returned at all having regard to the expenses already incurred by the parties. At any rate, if the plaint was to be returned to be filed in the Court of the Munsif, that Court should proceed with the case from the stage at which it was left in the other Court, and the report of the commissioner who made the local investigation should be treated as made under the direction of the Munsif's Court. It is said that the direction given by the District Judge in this connection in his original judgment was perfectly right and there was no warrant for modifying this portion of the judgment subsequently. We may take it, as has been held by both the Calcutta and the Allahabad High Courts, that Section 15, Civil P.C. lays down a rule of procedure and not of jurisdiction and it does not divest any Court of jurisdiction which it otherwise possesses under the statute constituting such Courts. It was ob. served by Petheram, C.J. in Nidhi Lal v. Mazhar Hosain ('85) 7 All. 230, that the word 'shall' in Section 15, Civil P.C., is imperative on the suitor. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits.... The proviso is for the benefit of the Court of the higher grade, and it is not bound to take advantage of it. If it does not wish to try the suit, it may refuse to entertain it. If it wishes to retain the suit in its Court, it may do so; it is not bound to refuse to entertain it.
3. The same view was taken in Matra Mandal v. Hari Mohun Mullick ('90) 17 Cal. 155. Taking the law as laid down above to be correct, the position would be that it was in. the discretion of the Subordinate Judge in the present case either to retain the suit in his file or to return the plaint for presentation to the Court of the lowest grade. We cannot say that in choosing to exercise the discretion in one particular way and not in the other the learned Subordinate Judge did exercise a jurisdiction which was not vested in him by law or exercised it in an irregular and improper manner. In exceptional cases, where the hearing of the suit is practically completed and before delivering the judgment the Court returns the plaint to be presented to another Court possibly we might be justified in interfering, in the interest of justice, but the present case does not seem to be one of that description. Now, if the order of the Court returning the plaint is a valid order, and we have no doubt that it is so, it is difficult for us to direct that the Court of the Munsif where the suit has now to be filed, should take up the suit from the stage at which it was left in the Court of the Subordinate Judge. When a plaint is filed in a new Court after being returned by another, it is a new suit to all intents and purposes, and not merely a continuation of the old one. In our opinion, we are unable to interfere with the order that has been made by the District Judge in this case. It is true that the question of valuation and jurisdiction might have been placed for hearing at an earlier stage and thereby all these consequences could have been avoided; but, for this, we think, the defendants are not solely responsible. The result is that the rule is discharged, and the order of the District Judge is confirmed. We express no opinion on the point as to whether the report of the commissioner can be made admissible as evidence in the Court of the Munsif if the commissioner himself is examined as a witness. We make no order as to costs in this rule. Our order will not affect in any way the application for transfer which is now pending in the Court below.
4. I agree that this rule should be discharged. The petitioners before us instituted the present suit in the Second Court of the Subordinate Judge at Sylhet on 17th January 1940 valuing the relief claimed by them in the plaint at Rs. 2100. The relief claimed was recovery of possession of certain immovable properties on declaration of the plaintiff's title thereto. The defendants appeared and pleaded inter alia that the relief was overvalued and that on a proper valuation of the same the suit should have been instituted in the Court of the Munsif at Sylhet. Several issues were raised on the pleadings of the parties of which issue 1 related to this question of the valuation of the suit. The issue was 'Has the suit been overvalued? Has this Court jurisdiction to try this suit?' This issue was tried on 13th November 1942. In the meantime, however, at the instance of the parties a local investigation was directed, a commissioner was appointed on 28th May 1940, and he submitted his report on 11th March 1941. Both the parties incurred heavy expenses in connexion with this local investigation. Certain witnesses were also examined in that connexion and ultimately on 13th November 1942, issue 1 as set forth above, was taken up for hearing. The suit being for possession of land is one mentioned in para. 5 of Section 7, Court-fees Act, (Act 7 of 1870) within the meaning of Section 3(1), Suits Valuation Act, (Act 7 of 1887). Section 3(1), Suits Valuation Act, lays down that
the Local Government may, subject to the control of the Governor-General in Council, make rules for determining the value of land for purposes of jurisdiction in suits mentioned in the Court-fees Act, 1870, Section 7, Para. 5.
5. The Subordinate Judge of Sylhet determined the value of the land for purposes of jurisdiction to be Rs. 900 only, this, according to him, being the price of the land. According to this finding, the suit ought to have : been instituted in the Court of the Munsif at Sylhet under Section 15, Civil P.C. The learned Subordinate Judge accordingly made the following order:
Although I have jurisdiction to try this suit I order that the plaint be returned to the plaintiff for presentation to the proper Court as per provisions of Section 15, Civil P.C. read with Order 7, Rule 10, Civil P.C. and Sections 18 and 19 of the Bengal, etc., Civil Courts Act (Act 12 of 1887).
6. An appeal from this order returning the plaint under Order 7, Rule 10, Civil P.C., was taken to the District Judge and the learned District Judge found that the valuation cannot exceed Rs. 1800. As at Sylhet there had been at the relevant dates a Munsiff having pecuniary jurisdiction upto Rs. 2000 the learned District Judge affirmed the decision of the Subordinate Judge by his order dated e 7th January 1943. He, however, added to his order the following observations:
I wish also to make it clear that since the learned Subordinate Judge had jurisdiction over the suit whatever steps have been taken and whatever has been done in the suit up to date when the proceedings terminated in the learned Subordinate Judge's Court must be deemed to have been done in exercise of proper jurisdiction and therefore valid and trial shall begin from the stage when terminated.
7. Later on, by his order dated 17th March 1943, the learned Judge vacated this portion of his order being of opinion that it was clearly unsustainable and that the trial should begin afresh in the learned Munsiffs Court. The present rule is directed against these orders of the learned District Judge. It is contended that in the facts and circumstances of this case the order returning the plaint was in itself improper. Order 7, Rule 10, Clause (1), Civil P.C. lays down:
The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
8. This provision is expressed in a mandatory form. The corresponding provision in Act 14 of 1882 was contained in its Section 57 which was expressed very differently. This section was first introduced by Act 10 of 1877 where, in also it was numbered as Section 57. In the Code, of 1859 the corresponding provision was made in its Section 30 which stood thus:
If the amount or estimated value of the claim as stated by the plaintiff be beyond the jurisdiction of the Court the plaint shall be returned to the plaintiff in order to its being presented in the proper Court.
9. Section 15 of the present Code of Civil Procedure lays down : 'Every suit shall be instituted in the Court of the lowest grade competent to try it.' This provision also is to all appearance mandatory. It may be noticed here that Section 6 of Act 8 of 1859 and Section 15 of Act 14 of 1882 contained corresponding provisions in those Codes and the provisions were expressed exactly in the same language. The decisions in Nidhi Lal v. Mazhar Hosain ('85) 7 All. 230, Baidya Nath Adya v. Makhan Lal Adya ('90) 17 Cal. 680 and Matra Mandal v. Hari Mohun Mullick ('90) 17 Cal. 155, will show to what extent the provisions in Section 6 of Act 8 of 1859 and Section 15 of Act 14 of 1852 were mandatory. In order to appreciate these decisions, we must keep in view also the relevant provisions for the return of plaint given above. For our present purposes, it will not be necessary to examine this position. In this case the question whether or not the learned Subordinate Judge would have been competent to retain the suit in his own Court and whether, if the suit had been so retained and tried, the decision given would have been with or without jurisdiction, does not fall to be decided. I, therefore, refrain from expressing any opinion on the above decisions which have bearing only on such questions.
10. According to the findings arrived at by the Courts below, the valuation in the present case cannot exceed Rs. 1800. Mr. Bose, appearing in support of the rule, did not question this valuation as erroneous in law. No rule under Section 3, Suits Valuation Act, was placed before us and it is not the case of Mr. Bose that the valuation made by the Courts below was in violation of any such rule or of any other law. The valuation of the suit as determined by the Courts below clearly shows that it had to be instituted in the Court of the Munaiff at Sylhet under Section 15, Civil P.C. The learned Subordinate Judge was therefore certainly competent to make the order returning the plaint to be presented to the Munsiff's Court under Order 7, Rule 10, Civil P.C. Even assuming that he was also entitled to retain the suit in his own Court and try it himself, there can be no doubt that he was equally entitled to return the plaint under Order 7, Rule 10, Civil P.C. Even if he had any option left to him in this respect he exercised that option and chose to return the plaint. We do not see how this order can in any way be impeached as erroneous or improper. In any case, even if we assume that in view of the fact that the suit reached a certain stage in his Court involving heavy expenses, the learned Subordinate Judge exercised his option improperly in not retaining the suit in his Court and that this error on his part could be rectified by the Court of appeal below, it cannot be contended that it was beyond the competence of the Court of appeal below to confirm this order also in his discretion. At any rate we cannot say that the learned District Judge on appeal committed any error that would call for our interference under Section 115, Civil Procedure Code.
11. We only want to make it clear that none of the orders referred to above should be taken as affecting the question whether or not the local investigation made in this case in the Court of the learned Subordinate Judge before the plaint was returned and the report of the commissioner would still be evidence in this case under Order 26, Rule 10(2), Civil P.C. or can be adduced in evidence by any other process. The Court trying the suit will determine that question if and when raised.