BABUBHAI VAMALCHAND KACHRA Vs. HIRALAL VAMALCHAND KACHRA

JUDGEMENT

(1.) THIS is a reference 'by the First Class Subordinate Judge of Surat purporting to be under Order XLVI, Rule 1.

(2.) THE facts are as follows. A suit for a declaration and injunction valued at Rs.. 205 was instituted in the First Class Subordinate Judge's Court. According to the practice by which the work of that Court is distributed the case was allocated to the Joint First Class Subordinate Judge for disposal. Subsequently by order of the District Judge (it is not quite clear whether this was an administrative order or an order under Section 24 of the Civil Procedure Code) the case was sent to the Court of the Extra Joint Second Class Subordinate Judge, who is one of the four Subordinate Judges attached to the First Class Court. While the case was pending in the Court of the Joint First Class Subordinate Judge, an application was made to amend the plaint by including additional properties in the list of suit properties and asking for partition. This application for amendment was granted by the Second Class Subordinate Judge after the case had been taken up by him. THE result was that the suit became one beyond his pecuniary jurisdiction and he made the following order: THE suit is now valued at more than Rs. 5,000. So this Court can have no jurisdiction to hear the suit. I therefore pass the order below:-THE suit be sent to the First Class Court as this Court has no jurisdiction. Apparently he reported the action taken by him to the District Judge and in a letter sent by the Clerk of the Court of the District Judge by order of the District Judge the First Class Subordinate Judge was informed that the sanction applied for had been granted. It is not clear, however, that any judicial order of transfer under Section 24 of the Civil Procedure Code had been made. When the case was taken up by the First Class Subordinate Judge, the defendants objected that he had no jurisdiction and that the only legal way of dealing with the case was that the Second Class Subordinate Judge should have returned the plaint for presentation to the First Class Subordinate Judge under Order VII, Rule 1 0. THE learned First Class Subordinate Judge was of opinion that this was the correct view. He doubted whether the District Judge had power to transfer the case under Section 24 of the Civil Procedure Code and also whether any order of transfer under that Section had in fact been made. He thought that there was a difficulty in the way of his entertaining the suit by reason of a decision of the learned Chief Justice in Shankerji Samalji v. Vrajlal Bapalal (1934) I.L.R. 59 Bom. 466: s.c. 37 Bora. L.R. 255 and he submitted several questions for the opinion of this Court under Order XLVI, Rule 1.

(3.) THE learned First Class Subordinate Judge doubted whether an order under Section 24 could be made, and learned Counsel who appears here for the defendants has also argued that at any rate according to some authorities an order under this Section cannot be made in such a case. THE points relied upon seem to be two. It is urged that there must, first of all, be a pending suit, and, secondly, there must be a suit pending in a Court which has jurisdiction to try it.