HANS RAJ Vs. LUDAM MARI

JUDGEMENT

(1.) IN litigation pertaining to his ejectment, the plaintiff appellant is alleged to have agreed to vacate the premises under his occupation or before 7th of June, 1986, as is evident from the order passed in Civil Appeal No 3 1981, decided by District Judge. Udhampur. Instead of vacating the premises the plaintiff filed a suit for declaration to the effect that the aforesaid order passed by the District Judge, Udhampur was void, unenforceable as being based on fraud and misrepresentation with consequential relief of re -hearing of the appeal on merits. The suit was valued at Rs. 2228.96 and filed in the court of District Judge Udhampur on the ground: "that since the fraud has been committed in relation to the appeal pending before this court and at Udhampur, therefore, this court has jurisdiction to try the suit irrespective of its pecuniary value." The plaintiff also filed an application for the grant of interim relief in which the trial court directed that the execution of the order impugned shall stay till disposal of the suit However after hearing the parties, the court below came to the conclusion that the suit should have been filed in the lowest court competent to try the same and on merits held that the plaintiff was not entitled to the grant of the relief of temporary injunction The suit Was directed to be returned to the plaintiff appellant for presentation, to the proper court. Aggrieved by the order of the trial court, this miscellaneous appeal has been filed in this court on various grounds:

(2.) I have heard learned counsel for the parties and have perused the record.

(3.) MR . R S. Thakur the learned counsel appearing for the appellant has submitted that the trial court was not justified in returning the plaint and direction that the same should be filled in the court of Sub judge in terms of Sec. 15 of the Civil procedure Code. I find fore in the argument of Mr. Thakur in as much as the provisions of Sec. 15 of the Civil procedure code regulate the procedure and do not prescribe or take away the jurisdiction. The purpose and object of the section is that the court of higher grade should not be burdened or overcrowded with suits which can be entertained and adjudicated by the courts subordinate to such court. This section will not deprive court of higher grade of its jurisdiction which it otherwise possesses with respect to the subject matter. The institution of a suit in a court higher grade which ought to have been instituted in the court of lower grade, is only an irregularity in procedure and dose not after the jurisdiction of the court. The word shall used in the section is imperative on the suiter and not on the court. The suiter is obliged to bring its suit in the court of lower grade competent to try it, and the proviso is made for the benefit of the court of the higher grade. If the court of the higher grade does not wish to try the suit it may refuse to entertain it but if it wishes to retain the suit, it may do so. Under such circumstances, it cannot be said that the court of higher grade had no jurisdiction to try the suit though the same, as a matter of policy and procedure ought to have been filed in the court of lowest grade and the higher court in its discretion may return the same for its presentation in the proper court. However if, a suit is instituted in the court of lower grade than the one which is competent to try, the proceedings shall be null and void as being without jurisdiction and material prejudice has to be assumed to have been caused to the concerned party. Once the institution of the suit takes places, according to the provisions of Sec.15 its operation is exhausted and the suit should not be transferred merely because it is subsequently found that the same should have been instituted in the court of lowest grade. The court of higher grade of jurisdiction are advised to satisfy themselves about the valuation of the suit at the first instance and pass appropriate orders regarding their transfer, as contemplated by Sec. 15 to 20 of the Civil Procedure Code, but once a higher court of jurisdiction takes cognizance, it could not hold that the same was without jurisdiction. Even though the order of the court below in directing the return of the plaint may not be illegal yet under the circumstances of the case was not justified particularly when it had taken cognizance, granted the interim relief prima facie considered the rival claims of the parties and adjudicated upon the petition for the grant of interim relief.