AMAR NATH SWAMI Vs. RAMDEO

JUDGEMENT

(1.) S.C.C. Suit No. 1 of 1998 was filed before the learned Civil Judge. Basti, who has Jurisdiction to try the Small Causes Court valued upto Rs. 25,000. Initially the said suit was valued at Rs. 22.485.30. Subsequently the valuation of the suit was amended to Rs. 29,836.67 exceeding the jurisdiction of the learned Civil Judge. Senior Division. On an application under Section 24 of the Code of Civil Procedure, (hereinafter referred to as the 'Code'), the learned District Judge by its order dated 16.11.1999 recalled the records of the suit and transferred the same to the Court of learned Additional District Judge. Basti, having jurisdiction to try the Small Causes Court Suit above Rs. 25,000. The said application under Section 24 of the Code was registered as Misc. Case No. 804 of 1999 in which the order dated 16.11.1999 was passed.

(2.) Mr. R. N. Pandey, learned counsel for the applicant contends that the said order cannot be sustained on two grounds--first that the order was passed without any notice to the applicant-defendant and without giving any opportunity to it. The second ground is that applicant-defendant had taken objection to the Jurisdiction of the Court and maintainability of the suit before the learned Civil Judge. Senior Division, as such Section 24 cannot be applied. Inasmuch as such the situation attracts the application of Order VII, Rule 10 at best Order VII, Rule 10A of the Code and it was the duty of the learned Court below to return the plaint for being presented to the appropriate Court having jurisdiction. In elaborating his second ground, he had contended that in exercise of power conferred under Section 24 of the Code, the learned District Judge cannot fill up the lacuna by transferring the suit to a Court of competent jurisdiction. He further contends that unless that suit was not instituted before a proper Court. and if the suit is instituted in a wrong forum, the same cannot be transferred under Section 24 of the Code. In support of his first ground he had relied on a decision in the case of Nirmal Singh v. State of Haryana, (1999) 38 ACC 217. While he cited the decisions in the case of Raja Soap Factory and others v. S. P. Shantharaj and others, AIR 1965 SC 1449 and Murari Lal v. Roman Lal and Others, AIR 1978 All 106, in support of his second contention.

(3.) Shri P. P. Chaudhary, learned counsel for the opposite party, on the other hand, contended that the suit can be returned under Order VII, Rule 10 or it can be transmitted to the Court of competent jurisdiction under Order VII. Rule 10A of the Code by the learned Civil Judge. At the same time, it was also open the learned District Judge to exercise his power under Section 24 (5) of the Code apart from general power of transfer conferred on him under the Bengal. Agra and Assam Civi! Courts Act. In any event, according to him. the question is too technical, Alternatively he argued that even if the Court finds favour with the contention raised by Mr. Pandey, in that event, this Court may also pass appropriate order presenting the plaint or transferring the proceeding before the appropriate court under Order VII, Rule 10B of the Code. He then contends that originally suit was instituted before the appropriate court with the value of Rs. 22.485.34. It is only by way of amendment the valuation was changed to Rs. 29.836.67, therefore, it cannot be said that a suit was instituted in a wrong court but on account of amendment that the jurisdiction was surpassed. It was for the learned District Judge to exercise the power under Section 24 (5) of the Code or for the learned Civil Judge either to return the plaint under Order VII, Rule 10 or to transmit the records under Order VII, Rule 10A of the Code. He had relied on the decision In the case of Rajesh Kumar v. M/s. Mohan Cut Piece Stores and another, 1987 (1) AWC 776, in support of his contention.