SONI VRAJLAL JETHALAL Vs. SONI JADAVJI GOVINDJI

JUDGEMENT

(1.) This is a very unfortunate proceeding in which the plaintiff a minor at the time of the institution of the suit has been pushed by different orders of different courts from pillar to post with the result that 15 years after its institution his suit has not been entertained by any court till today. There is no dispute that his suit is of a civil nature and he complains of a civil wrong done to him for which there must not only be a remedy but there must also be a forum for availing of the remedy.

(2.) The plaintiff minor through his next friend filed a regular civil suit No. 56 of 1956 against one Jadavji Govindji who died pending the suit and his heirs defendants Nos. 1/1 to 1/9 have been brought on record and defendant No. 2 one Purshottam Gagubhai alleging that they were trustees of a trust created by the father of the plaintiff and they were realising the income of the trust property and that they should render accounts of the income of the trust property received by them and pay certain amount out of the income so realised and deposited with the Bank of India at Bhuj. Let it be distinctly made clear that the prayer in the suit was that the defendant trustees should render accounts of the income of the trust property realised by them and the costs of the suit and any other relief ancillary and incidental to the main relief. The suit was instituted in the Civil Judge (Senior Division) at Bhuj and was transferred to Joint Civil Judge (Junior Division) Bhuj. The defendants appeared in the suit and raised diverse contentions one of them being that the court of the Civil Judge Junior Division Bhuj had no jurisdiction to entertain the suit but the District Court alone had jurisdiction to hear the suit in view of some of the provisions of the Indian Trusts Act 1882 In view of this contention taken by the defendants the learned Joint Civil Judge Junior Division Bhuj raised an issue as to whether the court of the Civil Judge Junior Division Bhuj had jurisdiction to hear the suit. The learned Judge held on construction of the plaint that the suit is one for removal and appointment of new trustees as well as for extinguishments of the trust and further held that the principal Civil Court of Original Jurisdiction meaning thereby the District Court alone had jurisdiction to entertain the suit and accordingly passed an order that the plaint be returned for presentation to the proper court. This order was made on 14th April 1959 The plaintiff obeyed the order and accepted the plaint and presented it to the District Court at Bhuj where the Civil Suit was registered as Civil Suit No. 1 of 1962. The learned District Judge after hearing both the sides come to the conclusion that the suit was a suit simplicitor for accounts from the trustees of a private trust and therefore the Court of Civil Judge Junior Division had jurisdiction to entertain the suit. In accordance with this finding the learned District Judge passed an order on 19th March 1964 that the plaint be returned to the plaintiff for presentation to the proper court. The plaintiff again in obedience to this order accepted the plaint and presented it in the Court of the Civil Judge Senior Division at Bhuj where it was initially instituted. Possibly at that time there was no court of Joint Civil Judge (Junior Division) at Bhuj and therefore the Civil Judge (Senior Division) took the suit on his file. The Civil Judge (senior Division) felt doubt whether it would be open to him to entertain the suit until the first order passed by the Joint Civil Judge (Junior Division) was duly set aside by a court of superior jurisdiction. The learned Civil Judge (Senior Division) passed an order observing that even though he had jurisdiction to entertain the suit but till the first order was set aside it would not be open to him to entertain the suit. In accordance with this finding; he passed a very curious order which is as follows:-

(3.) First contention raised was that if the order sought to be revised is one under O. 7 R. 10 of the Code of Civil Procedure an appeal would lie against that order under O. 43 R-1 to the District Court and therefore it is not a case in which no appeal lies and therefore this court cannot exercise its revisional jurisdiction under sec. 115 of the Code of Civil Procedure. This contention can be disposed of by observing that the impugned order could not be said to be one under O. 7 R. 10. O. 7 R. 10 provides that 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. Where a suit is instituted in one court and if that court is of the opinion that it had no jurisdiction to entertain the suit it is not open to that court to dismiss the suit on that account but the court is required to proceed under O. 7 R. 10 directing that the plaint should be returned to the plaintiff for presentation to the proper court. In the present case learned Civil Judge (Senior Division) does not say in the impugned order that he had no jurisdiction to entertain the suit. In tact in para 13 of the impugned order the learned Judge agrees with the remarks made by the learned District Judge in his order dated 19th March 1964 to the effect that the court of Civil Judge (Junior Division) has jurisdiction to try the suit. Therefore it is not a case in which the court before whom the plaint is presented is of the opinion that it has no jurisdiction to try the suit. The situation is exactly to the contrary. That court is definitely of the opinion reasons for the opinion at this point of time being immaterial that it has jurisdiction to try the suit. But as on an earlier occasion in respect of the same suit an order was made that the court had no jurisdiction to try the suit and as that order was not set aside by any superior court the learned Judge felt difficulty in entertaining the suit. Faced with this peculiar situation the learned Judge passed an order which can by no stretch of imagination be said to be one made under O. 7 R. 10. A formal order under O. 7 R. 10 would be that the plaint be returned to the plaintiff or presentation to the proper court. In the present case the learned Judge has passed an order that as the court is unable to reentertain the suit the plaint be returned to the plaintiff if he wants it. This can hardly be said to be an order under O. 7 R. 10 and therefore on the face of it no appeal against it could have been preferred to the District Court. Therefore revision application would lie to this court if other conditions of sec. 115 are satisfied and no question is raised that the other conditions of sec. 115 are not satisfied. Shortly stated once the impugned order is made the court will not entertain and proceed with the suit with the result that the case is decided against the plaintiff and if it ultimately transpires that the Court of Civil Judge (Junior Division) alone had jurisdiction to entertain the suit it would mean that the learned Civil Judge (Senior Division) failed to exercise jurisdiction vested in him. Therefore sec. 115 would in terms be attracted and this Civil Revision Application against the impugned order would be quite competent.