DOLY GHOSH Vs. KUMUD CHANDRA GHOSH

JUDGEMENT

(1.) Facts - A suit was filed in the Court of the learned Munsif in November 1995 being O.C. Suit No. 169 of 1995 for the following reliefs:

(2.) Mr. Roychowdhury, appearing on behalf of the appellant, contends that it is the learned District Judge who is the competent Court to entertain all kinds of civil suits, including the kind of suit for negative declaration that there was no marriage. He may not be the lowest grade of Court of competent jurisdiction but that does not mean that the learned District Judge was not competent to entertain the suit. It was open to the learned District Judge to return the plaint for being presented to the appropriate Court or to retain the same and grant relief. He relies on sections 9, 13 and 18 of the Bengal Agra Assam Civil Courts Act, 1887. Relying on section 18 he contends that it is the learned District Judges who are competent to take cognizance of all suits triable by the Civil Courts, subject to section 15 of the Code of Civil Procedure (Code of Civil Procedure). Section 15 Code of Civil Procedure prescribes institution of every suit in the Court of lowest grade competent to try it. Section 15 is a procedural provision. It does not curtail the jurisdiction of the Court of higher grade of competent jurisdiction. It is only for the sake of convenience and in order to relieve or ease the pressure of suit on the higher grade of Courts and to leave such higher grade of Courts to deal with appeal and other matters. He also relies on Order 7 Rule 7 Code of Civil Procedure and contends that even in such a case the Court is competent to mould the prayer and grant relief. He also relies on some decisions to support his contention to which we will be referring to at appropriate stage. Submission on behalf of the respondent:

(3.) Mr. Dey, the learned counsel for the respondent, on the other hand, contends that the petitioner herself had filed the suit for declaration that there was no marriage in the lowest grade of competent Court, namely, the Munsif. But after some evidence was gone into, she withdrew the suit with liberty to file the suit under the provision of the Hindu Marriage Act, 1955. Accordingly, the learned Munsif had permitted withdrawal of the suit with liberty to file a suit before the appropriate Court under the Hindu Marriage Act. Therefore, she could not claim any relief before the learned District Judge where she herself consciously had filed the suit for declaration under section 12 of the 1955 Act. He also points out that it was the question of jurisdiction, which the petitioner herself had opted to file before one such Court at the lowest grade. Therefore, after having opted to bring the suit at the Court of the lowest grade, she was not entitled to withdraw the suit and file it before the Court of higher grade and claim relief. She was estopped from seeking any relief other than those available under section 12 of 1955 Act, since that was the ground for which the suit was allowed to be withdrawn from the Court of the learned Munsif for presenting before the learned District Judge. If she failed on that count, in that event, she could not seek for alternative relief. According to him, these two reliefs, being inconsistent and conflicting, the same could not be permitted to be adopted in the plaint. According to him, therefore, the learned District Judge was right in refusing the relief. The petitioner could continue the suit before the Court of competent jurisdiction from the stage from where it was withdrawn or otherwise or could proceed on the basis of the materials available on record and could have asked for transfer of the suit invoking section 24 of the Code of Civil Procedure to the appropriate Court. It was equally open to the learned District Judge either to transfer under section 24 of the Code of Civil Procedure or to return the plaint under Order 7 Rule 10 of the Code if Civil Procedure. He next contends that if the District Judge is permitted to decide the same, then one forum of appeal would become unavailable. Points at issue: