DURGARANI DASI Vs. KALYANI BANDOPADHYAY

JUDGEMENT

(1.) Durgarani Dasi instituted a suit in the Court of the First Munsif, Alipore, on July 25, 1950, for realisation of Rs. 200 as chauth payable on account of transfer of some property by Defendant No. 2 in favour of Defendant No. 1. One of the contentions raised by Defendant No. 1 was that the suit was triable by the Small Cause Court and the Court where it had been instituted had no jurisdiction to try it. The Munsif accepted this contention and on August 28, 1952, directed the plaint to be returned for presentation to the proper Court. The Plaintiff preferred an appeal against this order but the appeal was dismissed, the learned Subordinate Judge, who heard the appeal, being also of opinion that the suit was triable by the Small Cause Court. Thereafter the Plaintiff presented the plaint in the Court of the Small Causes but that Court being of opinion that the suit was not triable in a Small Cause Court directed the plaint to be returned for presentation to the proper Court.

(2.) It is not disputed before us that the District Judge was right in his view that the suit was not triable by a Small Cause Court and that the Munsif's Court did in fact fail to exercise jurisdiction by reason of erroneously holding that it was triable by a Small Causes Court. The only question raised on behalf of the Defendant before us is that an order should not be passed by this Court directing trial of the suit by the civil court in the face of the decision of the Subordinate Judge in appeal affirming the Munsif's decision that the Munsif's Court had no jurisdiction to try the suit. It is said that this was a decision which was binding on the two parties and the Court should not allow the parties to get rid of such a binding order. The provisions of Order 46, Rule 7, however confer a special jurisdiction on the District Judge to make a reference to this Court where he thinks the Munsif's Court had refused to exercise jurisdiction and makes it the duty of this Court to pass suitable orders thereon. I can see no reason why this Court should not perform its function merely because the order passed by the Subordinate Judge in appeal may be binding on the two parties. I do not see that the fact that an appeal was taken and the appeal was dismissed is of any consequence. Even if no appeal had been filed, the decision of the Munsif that he had no jurisdiction would have been binding on the two parties. To say, however, that because there is such a binding decision that the Munsif's Court had no jurisdiction, this Court cannot ask the Munsif's Court to try the suit is really to unsay what is said in Order 46, Rule 7(1) and (2). It is because of the erroneous decision that the District Judge is given the power and the duty to submit the records to this Court and the High Court given the duty of making proper order in the case. If the erroneous decision itself is to prevent this Court from directing the Munsif to try the suit, there would be no point in the District Judge being empowered to consider whether the decision is erroneous and to submit the records to this Court. The only possible conclusion, in my opinion, is that where the Court has erroneously failed to exercise jurisdiction by wrongly holding that the suit is triable by a Small Cause Court, then even if the decision is affirmed in appeal, the jurisdiction of the District Judge to make the reference under Rule 7(1) remains and that in such a case, if the High Court agrees with the view taken by the District Judge, the High Court is bound to order that the Munsif's Court should exercise the jurisdiction, it had failed to exercise by reason of its erroneous view, and should accept the plaint and proceed to dispose of the suit in accordance with law.

(3.) I would accordingly accept the reference by the learned District Judge and order that the first Munsif's court should now accept the plaint and proceed to dispose of the suit in accordance with law.