K MUTHIYAN NADAR Vs. R VIJAYARANI

JUDGEMENT

(1.) ON September 28, 1972, the Subordinate Judge of padmanabhapuram passed a decree in O. S. No. 85 of 1971 on his file in favour of the father of the respondents herein against the petitioner herein for certain sum of money. The decree was amended by order dated 8. 10. 1974 made in i. A. No. 331 of 1974 and after amendment, the decree directed the petitioner herein to pay a sum of Rs. 3,200 with interest at 6% per annum from the date of decre till date of realisation along with proportionate cost of Rs. 652-25 and the petitioner was granted six months time to pay the amount. The petitioner not having complied with the decree, the decree-holder set the execution proceedings in motion in E. P. No. 28 of 1979. The petitioner herein claimed to be entitled to the benefits of the Tamil Nadu Act 31 of 1976 on the footing that he is a small farmer as defined by the Act. . The executing Court, viz. , the subordinate Judge, Kuzhithurai, negatived his claim and ordered execution by order dated 30. 10. 1979. The petitioner herein filed C. R. P. No. 2829 of 1979 in this Court against that order. During the pen-dency of the revision petition, the decree-holder died and his children, the respondents herein, were brought on record as his legal representatives. By order dated 17-6-1985, this Court set aside the order of the executing Court and remanded the matter to the subordinate Judge, Kuzhithurai for deciding the question whether the petitioner is entitled to the benefits of Tamil Nadu Act XXXI of 1976 after giving an opportunity to both parties to adduce evidence thereon.

(2.) AFTER remand, the petitioner herein filed an additional counter in the E. P. , objecting to the jurisdiction of the subordinate Judge to enquire on the ground that after the Civil Courts amendment Act, the pecuniary jurisdiction of the District Munsif having been raised to Rs. 15,000 the matter could be deal with only by the Court of the District munsif. However, evidence was adduced by both parties. The Subordinate Judge, kuzhithurai, passed an order on 6-10-1987 holding that the petitione herein is not a small farmer, as defined by Tamil Nadu Act XXXI of 1976 and directing further proceedings in execution. It is the said order which the petitioner seeks to displace in this revision petitioner.

(3.) IN Suryanarayana v. Bullayya, A. I. R. 1927 Mad. 568, sundaram Chetty, J. , held that the trial of a suit by a higher Court when it is triable by a Court of lower Grade by virtue of section 15, C. P. C. is merely an irregularity. A similar question arose in a different context before a Full bench in Rama Subbarayulu v. Rangammal, A. I. R. 1962 Mad. 450. The question related to the jurisdiction of a Subordinate Judge invested with powers by a notification under section 29 (1) of the Tamil Nadu Civil Courts Act issued by the High Court to hear and dispose of proceedings under the INdian Succession act. While considering that question, the Full Bench made the following observations which are relevant for this case; "vesting of authority in a Subordinate Judge to entertain and dispose of contentious applications for probate etc. , under section 29 (1) of Madras Civil Courts Act cannot take away the jurisdiction of the District Judge over such matters. The result is, both the Subordinate Judge and the District Judge will have concurrent jurisdiction to take cognizance of contentious applications for probate etc. , relating to matters arising within the jurisdiction of the former. Under section 15 of the Civil Procedure Code, where more than one Court has a jurisdiction over a matter, the case should be instituted only in the Court of the lower grade competent to try it. The Sub court being a Court lower to the District Court in the hierarchy of Courts, the aplication for grant of probate or letters of administration will have to be instituted only in that Court. But this is only a rule of procedure. Therefore, section 15 of the Civil Procedure Code does not depirve the District Court of its jurisdiction. As observed by Petharam, C. J. , in Nidhi Lal v. Mazhar Hussain, i. L. R. 7 A11. 230 at 233 (F. B.), the word shall is in my opinion 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 over crowded with suits. The proviso is for the benefit of the court of 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".