SINGHAI BALCHAND Vs. KHUMAN

JUDGEMENT

(1.) 1. The plaintiff-applicants entered a case in the Court of the Subordinate Judge, Second Class, Saugor, on 2nd January 1932. The claim was for Rs. 447 and the suit was undoubtedly one which was triable by a Court of Small Causes. At the time the , jurisdiction of that Court was limited to Rs. 200. It was subsequently raised to Rs. 500 by an order dated 1st February 1932. In view of this alteration of jurisdiction the Subordinate Judge, second class, returned the plaint for presentation to the Court of Small Causes at Rehli on 9th March 1932. The Judge presiding in that Court however took a different view as to his jurisdiction to try the case and returned the plaint on 28th June 1932. The plaintiffs then went again to the Court of the Subordinate Judge, second class, which, on 3rd September 1932 held that the suit was not maintainable in that Court as the previous order dated 9th March 1932 remained intact; it accordingly rejected the plaint. The order was passed in the following terms: This suit has already once been returned by this Court on 9th March 1932 on the basis of the standing order of the District Judge dated 13th January 1932, (relating to pending suits in the Court of the Subordinate Judge, second class at Rehli, on 31st January 1932) for presentation to the proper Court. That order still stands, as it has not been appealed from, and the plaint has again been re-presented in this Court on 28th June 1932. I think the suit is not maintainable as my order dated 9th March 1932 remains intact, and as long as it stands it operates as a bar to the maintainability of the suit; and I reject the plaint with costs Under Order 7, Rule 11 (d), Civil P.C. Defendants' costs to Rs. 7 be paid by plaintiffs.

(2.) AGAINST this order an appeal was made to the Additional District Judge who dismissed the appeal holding that even if he were to set aside the order of 3rd September 1932, the order of 9th March 1932 would still be subsisting and that the appellants could only escape from the position they had got themselves into by not appealing against the first order or not applying in revision against the second, by filing a fresh suit if their suit was not already time-barred. He considered that the fact of there being three orders had deprived the plaintiffs of their appropriate remedy. Under the provisions of Rule 7, Order 46, Civil P. C, the Additional District Judge was entitled to make a reference to this Court on the question. He did not do so and it is admitted that he was not asked to do so by the applicants. Had he been so asked, the Additional District Judge, would have been bound to make a reference: Cantonment Board, Jubbulpore v. Phulchand 1932 Nag 70. In my opinion in this case the Additional District Judge should have made a reference whether he had been asked to do so or not. I consider that the Subordinate Judge, in the circumstances, was correct in passing the order which he did and also that the Additional District Judge was technically correct in dismissing the appeal, but I am unwilling to hold that the plaintiffs have no remedy.