BIJOYO KUMAR PATTANAIK Vs. BASANTA KUMAR PATNAIK

JUDGEMENT

(1.) This appeal is an illustration as to how procedural bottlenecks could thwart real justice to the parties and the partition suit of 1975 can be kept still lingering at the thereshold on the question of payment of proper court-fees and the pecuniary jurisdiction of the competent court to try it.

(2.) A few relevant facts leading to this appeal deserve to be noted at the outset to highlight the aforesaid observation of ours.

(3.) The appellant as well as Respondent Nos. 1 to 4 as co-plaintiffs filed a civil suit being O. S. No. 67 of 1975-I in the Court of learned Munsif, Khurda in Orissa State. In that suit the five plaintiffs claimed partition and separate possession of their shares in the suit properties. In the present appeal we are not concerned with the merits of the suit. The original defendant No. 3 who is Respondent No. 5 before us contested the suit on various grounds including one of pecuniary jurisdiction of the trial Court to entertain the suit. Ultimately, the trial Court took up the suit overruling the objection of defendant No. 3 about the Court's pecuniary jurisdiction to entertain the suit. The trial Court passed a preliminary decree for partition against defendant No. 3 on contest. This decree of the trial Court resulted into an appeal at the instance of Respondent No. 5 herein - the original defendant No. 3 before the Court of Additional Subordinate Judge, Bhubaneswar. Learned first appellate Judge after hearing the contesting parties took the view that the trial Court had no pecuniary jurisdiction to entertain the suit. On that ground alone the judgment and decree of learned Munsif, Khurda were set aside by order dated 17-3-1980. The plaint was ordered to be returned to the appellant who was respondent No. 1 and respondent Nos. 1 to 4 who had been joined as co-respondents 2 to 4 in that appeal, for presentation to the proper Court. This order of the first appellate Court i.e. the Court of learned Additional Sub-Judge, Bhubaneswar was carried in appeal being Miscellaneous Appeal No. 214 of 1980 before the High Court. The said Miscellaneous Appeal came up for hearing before R. N. Misra, C. J. (as his Lordship then was) who by order dated 17-4-1981 dismissed the same and confirmed the order of the first appellate Court meaning thereby the direction to the appellant and respondent Nos. 1 to 4 was maintained. The appellant moved a review petition before learned Judge who dismissed the same on 15-1-1982. Learned Judge observed in the said order that the consequence of dismissal of the Misc. Appeal is that the plaintiff will have to present his plaint in the appropriate Court. It is always open to him to ask for transposition in the proceeding in the Court below. Whether transposition would be granted is a matter of discretion. Thereafter, the appellant-plaintiff instead of getting the plaint returned to him for presentation before proper Court went to the trial Court i.e. the Court of learned Munsif. He requested learned Munsif by his Miscellaneous Application No. 13 of 1982 under O. 1, R. 10 read with Section 151 of the Code of Civil Procedure to permit him to transpose plaintiff Nos. 2 to 5 as Defendant Nos. 4 to 7. He also applied on 25-4-1981 to learned trial Court i.e. Munsif, Khurda to return the plaint under O. 7, R. 10, C. P. C. for presentation of the suit to the proper court. Thereafter, on 6-9-1982 the appellant withdrew that application and prosecuted only his application under O. 1, R. 10, C. P. C. Under these circumstances, learned Munsif, Khurda by his order dated 4-10-1982 came to the conclusion that as he had no pecuniary jurisdiction to entertain this suit as held by the appellate Court he could not grant permission to the plaintiff to transpose the remaining plaintiffs as defendants. It is this order which was carried in revision before the High Court. Learned Judge of the High Court, R. C. Patnaik, J. (as he then was) rejected the revision. It is that order of the High Court which is made subject matter of this appeal on grant of special leave.