A B VISHALAMMA Vs. A B SIDDAMALLAPPA

JUDGEMENT

(1.) RESPONDENTS 1 and 2 who are the plaintiffs in the court below filed a suit o. s. No. 47 of 1985 against the petitioner herein and the third and fourth respondents for the relief of partition and separate possession of their legitimate share in the suit schedule property. The suit was valued at Rs. 45,000. 00 and therefore it was filed before the learned civil judge (senior division) as the pecuniary jurisdiction of the civil judge (junior division) was Rs. 10,000. 00 as on that date. The said suit was decreed ex parts. The defendants preferred a first appeal against the judgment and decree before this court. During the pendency of the appeal before this court there was an amendment to the Karnataka civil courts act by virtue of which the jurisdiction to decide appeals of the value to the extent of Rs. 1,00,000. 00 was conferred on the district court. Consequently, this court transmitted the appeal pending before it to the district court at chickmagalur. The judgment and decree of the trial court was set aside by the district court and the matter was remanded to the civil judge (senior division) for fresh disposal in accordance with law. Thereafter, defendants filed a joint written statement. There was conflict of some interest between them. Therefore, they were permitted to file separate written statements. After filing of the written state- ments they took up a contention that the said court has no pecuniary jurisdiction. Therefore, one issue regarding pecuniary jurisdiction was framed and it was tried as a preliminary issue. On the said preliminary issue the court held that it has no pecuniary jurisdiction. Thereafter, third defendant filed an application under order 7, Rule 10 of the CPC for return of the plaint to be presented to the proper court. The said application was allowed and the plaint was returned for presentation before the appropriate court. The plaint was presented before the learned civil judge (junior division) as the pecuniary jurisdiction of the said court was enhanced to Rs. 50,000. 00 by virtue of the Karnataka civil courts laws (Amendment) Act, 1989. In the said proceedings third defendant has made the present application la. No. Vii under Section 151 of the CPC seeking (1) to allow the third defendant to file a fresh statement, (2) try the case once again, and (3) discontinuing the continuation of previous suit in recording evidence and further trial. The said application was opposed by the plaintiff. The learned judge on consideration of the rival contentions has rejected the said application. It is against the said order the present revision is filed.

(2.) SRI n. d. r. ramachandra rao, learned counsel for the petitioner, contends the learned civil judge (senior division) recorded a finding that the said court has no pecuniary jurisdiction to entertain the suit and returned the plaint for presentation before the proper court and the proceedings before that court till that date becomes a nullity and the learned civil judge (junior division) should proceed from the stage of presentation of the plaint, as such the defendant's request for such a course has been wrongly rejected. Elaborating the said contention he submitted even in cases where initially the court had the jurisdiction to entertain the matter but by a subsequent event whether by operation of law or in any other manner if that court is held to be without jurisdiction, in law there is no distinction and all the proceedings before that court would be one without jurisdiction and the transferee court should hold a de novo enquiry. In that view of the matter he submits the impugned order is liable to be set aside.

(3.) SRI desai, learned counsel for the respondent, contends this is not a case of return of plaint for presentation to the proper court under order 7, Rule 10 of the CPC. On the date the suit was filed, the learned civil judge (senior division) had the pecuniary jurisdiction to entertain this suit. It is only by operation of law with an amendment to the Karnataka civil courts act the jurisdiction of the court is taken away and therefore it is a case of transfer of that case from civil judge (senior division) to civil judge (junigr division) and the learned civil judge (senior division) has to proceed with the case as if the proceedings had been instituted or commenced in such court. In that view of the matter the question of permitting the defendants to file written statement afresh in that court would not arise and the court below was justified in rejecting such a request.