PERLA SATTEYYA CHETTI Vs. GRANDHI VENKATARAMANAYYA

JUDGEMENT

(1.) This raises a question of some importance regarding the practice and procedure observed in the lower Courts, though, instances like the one in question are not of common occurrence.

(2.) The plaintiff in O. S. No. 146 of 1943 on the file of the District Munsif, Vizagapatam, is the appellant in the second appeal. He filed the suit, out of which this second appeal arises, in the first instance in the Court of the Subordinate Judge, Vizagapatam, for the recovery from the defendant of 55 cents of land on the ground that the same was encroached upon by the defendant. The plaint was presented in the Court of the Subordinate Judge on 3rd February 1942 by two practitioners, Messrs C. V. Somayajulu and P. Gangadharam, with a properly executed and attested vakalat in their favour. The suit was numbered as O. S. No. 10 of 1942 in the usual course and summons was ordered to the defendant. The defendant who appeared contested that the suit has been over-valued for the purpose of pecuniary jurisdiction. It was his case that if the land had been properly valued the suit could have been filed in the District Munsif's Court of Vizagapatam as the property, the subject-matter of the contest, would be worth only a sum below Rs. 3,000. The learned Subordinate Judge appointed a Commissioner to value the properties and the result of the valuation by the Commissioner was that it was found that the suit was of the value of below Rs. 3,000 and therefore should have been presented in the Court of the District Munsif as the Court of the lowest pecuniary jurisdiction. Thereupon the learned Judge directed the return of the plaint on 13th July 1943. The original plaint was taken back on the same date as it was returned and presented immediately thereafter on the very date itself before the District Munsif of Vizagapatam; but as there was no direction to return the vakalat filed in the Sub-Court along with the plaint it was not taken back at all by the pleaders. When the plaint was presented again before the District Munsif, no vakalat was filed. The reason for not doing so is not apparent from the records and neither of the lower Courts gives any reason why such a procedure was resorted to. After the evidence was let in, and during the course of the arguments before the District Munsif, it was pointed out by the defendant's vakil that the suit should be dismissed because no vakalat was filed on behalf of the plaintiff when the plaint was presented in the District Munsif's Court. Apparently, this defect was not noticed till then. Arguments were heard on this aspect of the case and the learned District Munsif holding that the proceedings before his Court cannot be said to be a continuation of the proceedings in the Subordinate Judge's Court, came to the conclusion that the provisions of Rules 1 and 4 of Order 3. Civil P. C. have not been complied with and hence held that the plaint was not properly presented and on that ground the suit was dismissed. In his judgment the learned District Munsif considered in extenso the evidence on issues 1 to 3 also and gave a finding that the plaintiff was entitled to recover possession from the defendant of 27.54 cents of land encroached upon by the latter. Even so, in view of his opinion that the whole proceedings were void as the plaint had not been properly presented, the suit was dismissed.

(3.) The plaintiff took up the matter in appeal and the learned Subordinate Judge Page 2 of 7 Perla Satteyya Chetti vs. Grandhi Venkataramanayya (08.04.1949 - MADHC) of Vizagapatam during the course of the hearing of the appeal admitted the original vakalat which had been lying in his own Court as additional evidence under Order 41, Rule 27, Civil P. C., after examining Mr. P. Gangadharam, the junior vakil who presented the plaint, as P. W. 4. The learned Judge was therefore satisfied that when the plaint was originally filed in the Sub-Court, there was a proper vakalat, though it was not taken back when the plaint was returned and the same was not represented before the District Munsif. According to the learned Subordinate Judge, the pendency of the plaint before the District Munsif cannot be said to form a continuation of the proceedings before the Subordinate Judge's Court. It should be deemed to be new proceedings, and such being the case, in the absence of a proper vakalat which only could initiate such proceedings, the order of dismissing the suit by the District Munsif was correct and the Subordinate Judge confirmed the same. The learned Judge did not accept the contentions put forward by the defendant's counsel, nor did he agree with the decision in Debi Lal v. Krishnaji, 67 I. C. 296 : (A. I. R. (9) 1922 Nag. 126), cited before him. The result, according to both the lower Courts, was unfortunate, but as both of them viewed that legally the plaintiff was not entitled to any relief the suit was dismissed.