GHANI Vs. DHARAM SINGH

JUDGEMENT

(1.) THIS revision is directed against the order of District Judge, Bhadarwah, dated 14th April, 1969, whereby he has upheld the order of the Sub -Judge, Kishtwar, dated 4th August, 1966, returning the plaint of the suit to the petitioner under Order 7, Rule 10, Civil Procedure Code for presentation before a proper Court. The suit of the plaintiff was for cancellation of a decree passed by the High Court on 19th November, 1963, whereby a decree for possession of land measuring 23 kanals 6 marlas in different survey numbers situate in village Lass, Tehsil Kishtwar was passed in favour of defendants and an injunction that the defendants in that suit should not interfere with the possession of the plaintiffs over this land. It appears in some previous litigation between the parties, the matter was finally compromised in second appeal before the High Court on 19th November, 1963, and a decree was passed in terms of the compromise by a Division Bench of this Court. The plaintiffs feeling aggrieved by this decree, brought the suit for the cancellation of that decree and for the incidental relief mentioned above in the Court of the Sub -Judge, Kishtwar. It was held by the trial Court that it was the High Court alone which could grant the relief prayed for by the plaintiff and hence returned the suit. Against this order of return of the plaint by the trial Court, an appeal before the District Judge Bhadarwah, as already indicated was unsuccessful. A further revision has been preferred to this Court which was originally heard by a Single Judge of this Court. The Single Judge finding that the point involved in this case was of great importance and was likely to affect a large number of similar other cases, referred the matter to a Division Bench.

(2.) WE have heard the learned counsel for the parties at length and bestowed our serious thought over the matter.

(3.) THE argument of the learned Counsel for the petitioner is that the two Courts below have mis -applied the law. He contends that in this case the original litigation which culminated in the compromise before the High Court, had started from the Court of Sub -Judge, Kishtwar, that the subject -matter of the dispute i.e., the land in question was situated within the jurisdiction of Sub -Judge, Kishtwar, that the parties lived within his jurisdiction and lastly that on the basis of this decree, which was sought to be set aside, the respondent No. 1 had taken out execution before the Sub -judge Kishtwar as Stated by him in paragraph 8 of his written statement. Therefore even though the decree was passed by the High Court, the profer forum for the suit for the cancellation of that decree was Sub -Judges Court at Kishtwar. On the other hand the argument of the respondents learned Counsel is that the decree has been passed by the -High Court, the cause of action, if any, that the plaintiffs can allege to have accrued to them, is in the High Court and the High Court is the only proper Court where the present suit can be lodged. This argument has found favour with the Courts below. In a ruling reported as AIR 1940 Pat 444 the case was that A who was a resident of the district of Saran carrying on business in the town of Chapra had transactions with B resident of Bombay and carrying on business in Bombay. A mortgaged certain property situate in Saran to B for the payment of debts due from him to B. B brought a mortgage suit at Bombay and got a decree. A filed a -suit at Saran for a declaration that the decree obtained at Bombay was illegal, an a nullity. The Patna High Court held that the Court at Saran had no jurisdiction to try the case.