HUBERT PEYOLI Vs. ABUSALI

JUDGEMENT

(1.) PLAINTIFF in O.S. 435 of 1985 on the file of Munsiff Court, Nedumangad is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for realisation of Rs. 5518.30 with interest on the principal amount of Rs. 5110/- as the balance amount due on a loan obtained on executing a bond creating a charge over the plaint schedule property. Appellant instituted the suit as O.S. 499 of 1983 before Sub Court, Thiruvananthapuram on 8.9.1983. But as per Kerala Civil Court Ordinance 31 of 1983 promulgated on 5.9.1983 and published in Gazette on 6.9.1883, pecuniary jurisdiction of the Munsiff Court was enhanced to Rs. 15000/-. But without taking note of the pecuniary jurisdiction of Munsiff Court pursuant to the ordinance suit was instituted before Sub Court, Thiruvananthapuram as the suit was valued at Rs. 10,678.80 inclusive of the interest till that date. In view of the ordinance enhancing the pecuniary jurisdiction of Munsiff Court, as per order dated 27.9.1983, Sub Court returned the plaint to the appellant for presentation before proper court granting three weeks time for presentation. The suit was represented before Munsiff Court, Thiruvananthapuram on 12.10.1983. But as a charge decree was sought in the plaint and the property is within the jurisdiction of Munsiff Court, Nedumangad as provided under Section 16(c) of Code of Civil Procedure the plaint should have been presented before Munsiff Court, Nedumangad instead of Munsiff Court, Thiruvananthapuram. As that defect was found out later by the counsel, plaintiff filed an application for withdrawal of the suit for presentation before Munsiff Court, Nedumangad. As per order dated 20.9.1985, sanction was granted. The plaint was directed to be returned for presentation before the proper court. Plaint was taken back and represented before Munsiff Court, Nedumangad on 1.10.1985.

(2.) RESPONDENTS appeared and filed a written statement disputing the plaint claim. Necessary issues were framed and evidence was recorded.

(3.) THE second appeal was admitted formulating the following substantial questions of law.