VALIAKATH KUNHI SEETHI KOYA THANGAL Vs. KIZEKKITATHI KOVILAKATH RAVI VARMA ALIAS VEERA VARMA RAJA AVERGAL

JUDGEMENT

(1.) The main question raised in this second appeal is whether the Subordinate Judge of Tellicherry was competent to hear the suit. The suit came up in second appeal to this Court in S. A. No. 870 of 1935 both the lower Courts having dismissed it on the ground that the plaintiff was estopped from denying the defendant's title. This Court held that there was no estoppel precluding the plaintiff from maintaining the suit and from enforcing his claim as against the defendant and remanded the suit to the District Court for disposal. It is said that it was brought to the notice of this Court that the Sub-Court was no longer functioning and that is given as the reason why the suit was remanded to the District Court of North Malabar for disposal. After this Court remanded the suit, a Sub-Court was established at Tellicherry and the District Judge transferred the suit to that Court. The Subordinate Judge heard the suit and dismissed it. An appeal was taken to the District Judge and he dismissed the appeal. Hence this second appeal.

(2.) The point urged by Mr. Govinda Menon, the learned advocate for the appellant is that as the High Court remanded the suit expressly to the District Court for disposal that Court had no jurisdiction to transfer the suit to the Subordinate Judge's Court and it is conceded that this objection was not taken either before the Subordinate Judge at the trial or before the District Judge when the appeal was presented to him. Nor was it urged before the District Judge at the hearing of the appeal. It is taken for the first time in this Court. Two answers are suggested by the respondents. One is that under Section 24, Civil P.C., 1908, the District Court is given very wide powers to transfer any suit, appeal or proceeding at any stage. It may withdraw a suit and then either try it or transfer the same to any Court subordinate to it or re-transfer the same for trial to the very Court from which it was withdrawn. There seems to be great force in this argument that the powers of the District Court are very wide. The decision of Sadasiva Ayyar and Spencer JJ. in Venkatiah V/s. Chirranna ( 15) 2 A.I.R 1915 Mad. 446 has been brought to my notice by Learned Counsel for the respondents. There an appeal was remanded by the High Court to the District Court and the District Court transferred the same to the Subordinate Judge and the Subordinate Judge heard the appeal. No objection was taken either at the time of the transfer by the District Court or at the time when the appeal was heard by the Subordinate Judge. In second appeal it was urged for the first time that the Subordinate Judge's Court had no jurisdiction to hear the appeal as it had been remanded by the High Court to the District Court. It will be seen that the objection is the same in the present case except that in the case dealt with by the learned Judges it was a case of an appeal whereas in this case it was a suit that was remanded to the District Court. The learned Judges held that the District Court had ample power to transfer the appeal to the Subordinate Judge's Court under Section 24, Civil P.C. This is a decision directly in point.

(3.) Mr. Govinda Menon, the learned advocate for the appellant, draws my attention to a decision of Krishnan J. in Uthuman Ammal V/s. Naina Mohammad Rowther. ( 23) 10 A.I.R. 1923 Mad. 351. There a suit was tried by the District Munsif's Court of Madura Taluk. It came up to the High Court and the High Court remanded the suit. While remanding the suit to the Court of first instance, it was stated that as that Court had been abolished the suit was remanded for trial by the Madura Town Court. By the time the suit went back, the Madura Taluk Munsif's Court was established. The suit was tried by that Munsif and the objection was taken before the High Court that that Court had no jurisdiction because the suit was specifically remanded to the Madura Town Court. The learned Judge held that as the terms of the remand order of the High Court were expressly to the effect that it was to be tried by the Madura Town Court, the Taluk Court had no jurisdiction to hear the suit. This decision does not apply to the facts of the present case, because here it is a suit remanded to the District Court and the District Court has the power under Section 24 to transfer a suit or appeal to any other Court subordinate thereto. There was no order of the District Judge under Section 24 in the case which came up before Krishnan J. I hold, therefore, that the decision of the Bench in Venkatiah V/s. Chirranna ( 15) 2 A.I.R 1915 Mad. 446 is directly applicable. On the merits I see no reason to interfere. The second appeal is dismissed with costs. No leave.