VASANT NARAIN Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against an order directing return of the plaint for presentation to proper Court passed by the appellate Court with reference to an objection as to the place of suing. The point as to the place of suing was raised on behalf of the Defendant in the trial Court. A preliminary issue was framed by the trial Court on this point and when it came to the stage of argument it seems that the argument advanced was on the basis of Section 9 of the Code of Civil Procedure namely as to whether the case is of a civil nature. The finding given by the Court was that it is a civil nature. The case later was tried on merits and the suit was dismissed. The Plaintiff preferred appeal against that decision. Before the appellate Court it was pressed on behalf of the Respondent that the objection as to the place of suing had not been determined by the trial Court. The lower appellate Court thereupon considered that question in appeal and held that the trial Court had no territorial jurisdiction to try the suit and directed return of the plaint for presentation to proper Court. This appeal is directed against that decision.

(2.) IT is contended on behalf of the Appellant that an order directing the return of the plaint for presentation to proper Court is appealable. The appeal is specifically provided for under Order 43, Rule 1 (a) of the Code of Civil Procedure Code. It is further contended on behalf of the Plaintiff -Appellant that the lower appellate Court has committed an error of law in considering the objection as to the place of suing at the appellate stage ignoring the provision of Section 21 C. P. C. Reliance in this connection was placed by the learned Counsel for the Appellant upon the decisions reported in : AIR 1954 SC 340 Kiran Singh v. Chaman Paswan and : AIR 1962 SC 199 Hira Lal v. Kali Nath.

(3.) IN my opinion the contention of the learned Government Advocate is untenable in view of the wording of Section 21 of the Code of Civil Procedure Code. That section is follows: