MANGIA HAGRIA MAHAR Vs. SAKIA

JUDGEMENT

(1.) PLAINTIFF Mangia sued the defendants Sakia and Hiraman for recovery of Rs. 81-6-3. The allegations in the plaint were that the plaintiff and the defendants were partners in the purchase of a 3/4ths share of the right to collect and sell Tendu leaves from the jungle which was taken on lease by Govindram Balabux, that the leaves so collected were sold to the firm of Bhikusa (defendant 3) in the case and the first payment of Rs. 325 towards price was divided between the partners on accounts taken but the second payment of Rs. 143 which was received by the defendants and which also was agreed to be shared by them with the plaintiff in the proportion of their shares in the business was not so divided and the defendants failed to give the plaintiff his share. Plaintiff thus sued for recovery of that share and its interest. Plaintiff joined defendant 3 as a party so that in case defendants 1 and 2 prove that they did not receive Rs. 143 from defendant 3 a decree may be passed against him for the amount due. Defendant 3 pleaded that he paid the amount due to the partnership and had nothing to pay to the partnership and should be discharged. Defendants 1 and 2 admitted having received Rs. 143 but pleaded that it was out of Rs. 325 and not separately as pleaded. It was further urged that the partnership accounts were not struck and closed, there was a failure on the part of the plaintiff to contribute his share of expenses and the allegations that the accounts were made and the balance struck and that the defendants agreed to pay the plaintiff his share out of Rs. 143 are all false and that the suit was not tenable in the Small Cause Court. The defendants gave their own version of the partnership, its sharers, contributions, etc. and stated the plaintiff is trying to get from defendants what he is not entitled to on false allegations. Plaintiff in reply stuck to his allegations in the plaint and maintained that his suit as laid was tenable. The plaintiff reiterated the plea that accounts of the partnership were made and the balance was struck and the suit as laid in the Small Cause Court was tenable.

(2.) THE Court framed the following point for determination. Whether the suit as framed is maintainable and whether the plaintiff must sue for the partnership accounts ? The Court came to the conclusion that the accounts of the partnership were not settled and the suit was not for a share of the balance struck on settlement of accounts. In this view of the case it held that the suit as framed was not tenable and dismissed the suit. The present application for revision is filed by the plaintiff against this decision. The finding that the accounts were not settled and the balance was not struck is not disputed, but what is contended for is that the Court when it arrived at a finding that this was a suit of a nature not cognizable by the Small Cause Court ought to have returned the plaint for presentation to proper Court under Order 7, Rule 10, and it has no jurisdiction to dismiss the suit, as it did. Order 7, Rule 10, runs as under: (1) The plaint shall, at any stage of the suit, be returned to be presented to the Court in which the suit should have been instituted.

(3.) THE Court investigated into the cases of the respective parties and came to the conclusion that the plaintiff's suit was false and dismissed it. This was not therefore a case in which the plaint should have been returned for presentation to proper Court. Plaintiff who insisted on adhering to falsehood and who does not and could not challenge the finding of the Court below on that point which is adverse to him, ought to take the consequences of his persisting in falsehood. He cannot be allowed to claim the benefit of Order 7, Rule 10, and argue that the Rule states that at any stage the plaint has to be returned and the mere fact that he joined issue and went to trial did not permit the Court to dismiss the suit. I was asked to interpret the Rule this way inasmuch as there are cases in which questions of overvaluation and undervaluation are involved and the issue is tried and decided and if it is found that the suit is overvalued and is beyond the jurisdiction, the plaint is usually returned. This is so, but I do not regard an issue regarding overvaluation or undervaluation as an issue on the merits of the case. The Civil Procedure Code also requires that such a point ought to be decided as a preliminary point. Order 7, Rule 11(b) empowers the Court, at the initial stage of the case to enter into that enquiry and give plaintiff time to correct the valuation and if on an enquiry the proper valuation is found either in excess of or lower than the jurisdiction of the Court, the Court ought to possess the power to return the plaint. This is thus an exception permitted by law, but to lay down a general proposition that in all cases, howsoever false the allegations of the plaintiff, the Court as soon as it discovers the falsehood, ought to return the plaint, will not be correct.