M VENKATARAMANAPPA Vs. K LASHMANNA

JUDGEMENT

(1.) This case has been referred to us by our learned brother, Qamar Hassan, J., as involving important question of law, namely, whether the decree passed by the Subordinate Court, Anantapur, in S.C. No. 97 of 1956 is invalid by reason of the fact that the plaint was first filed as original suit in the District Munsif's Court, Anantapur, and returned by that Court to the plaintiff for being filed in the proper Court, as the Small Cause jurisdiction of the Subordinate Court was enlarged to Rs. 2,000. When the decree was sought to be executed, the judgment-debtor contended that it was a nullity and that the execution cannot be proceeded with. This contention was negatived by the Subordinate Judge against which an appeal was filed before the District Judge, Anantapur, who allowed the appeal and declared the decree to be a nullity and hence not executable. The District Judge further directed that the suit will be transferred to the file of the Distruct Munsif's Court, Anantapur, to be tried as an original suit and disposed of according to law.

(2.) In our view, the Judgment and the Decree of the learned District Judge, Anantapur, is clearly erroneous and is unsustainable. It may be stated at once that these are not proceedings in which the order rejecting the plaint under Order 7, rule11, Civil Procedure Code, has been challenged. If the initial order has been so challenged, there would have been a justification in the contention that the order of the District Munsif was bad. The learned District Judge relied on a judgment of a Division Bench of this Court in Venkata Subbaramiah Setty v. Hari Rao, (1957) 1 An. W.R. 340 : 1957 A.L.T. 346 on a reference made by the District Munsif's Court under Order 46, rule 6 (1), Civil Procedure Code. Previous to this decision, Umamaheswaram, J., in Appalanarasimham v. Mutyala Rao, (1956) An. W.R. 280 : 1956 A.L.T. 683 had held that if during the continuance of an original suit before the District Munsif the jurisdiction of the Subordinate Court had been extended, it was the Subordinate Judge who was invested with jurisdiction to try the suit on the Small Cause side and that the District Munsif's Court had no further jurisdiction to proceed with the suit though it was rightly instituted before him at the time when he filed the plaint. It appeared that before Umamaheswaram, J., the decisions of a Full Bench of the Madras High Court in Hari Kamayya v. Hari Venkayya, (1903) I.L.R. 26 Mad, 212 and of a Division Bench in Kannan Nambiar v. Anandan Nambiar, (1905) 15 M.L.J. 491 : I.L.R. 29 Mad 124 were not cited.

(3.) Following these decisions, the Division Bench in Venkata Subbaramiah Setty v. Hari Rao, to which one of us was a party, held that the District Munsif is not divested of his jurisdiction to try an original suit filed properly in his Court merely by reason of the enlargement of the Small Cause jurisdiction of a higher Court and that this had no retrospective effect. These cases are relied upon by the learned Advocate for the respondent in support of the proposition that the Subordinate Court had no jurisdiction to entertain the suit after the plaint was returned by the District Munsif and filed in his Court. It is no doubt true that sub-section (2) of section 32 of the Provincial Small Cause Courts Act embodies a saving clause reserving the jurisdiction of a Court in respect of a suit instituted or proceedings taken before those Courts before the date on which they were invested with that jurisdiction. Order 7, rule 10 authorises the return of a plaint only if at the time the plaint was filed the Subordinate Court had no jurisdiction to entertain it as a Small Cause suit. The subsequent conferment of Small Cause powers on another Court would not enable the District Munsif's Court to return the plaint. The Full Bench case in Kannan Nambiar v. Anandan Nambiar, arose out of a reference under section 646-B, Civil Procedure Code, by the District Court against the order of the District Munsif, Tellicherry, returning the plaint. So was the case in Hari Kamayya v. Hari Venkayya, (1903) I.L.R. 26 Mad. 212. which was a Division Bench case. None of these cases are an authority for the proposition that where after the return of the plaint the plaintiff has filed a suit in the Court subsequently invested with Small Cause jurisdiction and the trial has proceeded without any objection and a decree has been passed thereon that such a decree would be a nullity merely by reason of the order of return of the plaint being invalid. Nor do they negative the right of a plaintiff to withdraw the suit filed as an original suit and file it afresh as a Small Cause suit. As we have already stated, neither the respondent nor the Court as such raised any objection as to the entertainability of the suit in the Subordinate Judge's Court and if the Subordinate Court had jurisdiction at the time when the plaint was entertained and the trial proceeded without any objection thereto ending in a decree, it cannot be said that that decree is passed without jurisdiction and is a nullity. The cases referred to by the learned Advocate for the respondent are, in our view, distinguishable as those cases arose on an objection taken to the invalidity of the order of return of the plaint or its transfer. Once that stage has passed and a decree has been passed by a Court which at the time it entertained the plaint had jurisdiction, it cannot be said that that decree is a nullity. The invalidity of the return of the plaint does not preclude the plaintiff from filing it as a Small Cause suit in a Court which has jurisdiction on the date when the filed it and proceed with the trial and obtain a decree thereof.