DEOKINANDAN PANDEY Vs. RAM CHANDRA TEWARI

JUDGEMENT

(1.) This is an application for revision under Section 115, Civil P.C., against the order passed by the District Judge of Benares confirming that of a munsif of that district, who returned the plaint filed in his Court by the applicant for presentation to the proper Court, that is the Revenue Court. The plaintiff alleged in his plaint that he and defendants 2 to 6 are members of a joint Hindu family owning certain fixed-rate tenancy lands specified at the foot of the plaint and that defendants 2 and 3 conspired to alienate the property in suit fraudulently without consideration and without legal necessity in favour of their relative, defendant 1, to the detriment of the plaintiff. The plaint also alleges that defendants 4 to 6 are the other members of the family. As a matter of fact, defendants 4 and 5 are the sons of defendant 2 and defendant 6 is the nephew of defendant 2. The relief originally claimed by the plaintiff was cancellation of a sale deed dated 18 August 1934 executed by defendants 2 and 3 in favour of defendant 1 and for a declaration that the same is not binding on the share of the plaintiff which, according to the pedigree appended to the plaint, comes to half. It was further prayed that in case the Court found that the property in dispute is no longer in possession of the plaintiff, a decree for possession be passed and defendant 1 be ejected. The suit was contested by defendants 2 and 3, inter alia, on the ground that the Civil Court has no jurisdiction to entertain it.

(2.) Before the trial Court returned the plaint for presentation to the proper Court, the plaintiff made an application for amendment praying that a reference to the plaintiff's half share in the relief be omitted so that the relief that might be granted to him was a declaration that the deed in question was inoperative. The munsif upheld the defendants plea as regards jurisdiction and ordered the plaint to be returned for presentation to the proper Court. It did not allow the amendment prayed for by the plaintiff on the ground that since a Civil Court had no jurisdiction to try the suit, it was not competent, to allow amendment of the plaint. The plaint was accordingly returned, but the plaintiff did not file it in the Revenue Court and preferred to appeal to the District Judge, questioning the correctness of the view taken by the munsif. In the main, two questions were argued before the learned District Judge. It was contended that, having regard to the nature of the suit, the Civil Court alone has jurisdiction to entertain it and that the munsif was wrong in holding that the suit not being within his jurisdiction he was not competent to allow amendment of the plaint. The learned District Judge agreed with the Court of first instance and held on both the points against the plaintiff who has come in revision to this Court.

(3.) A preliminary objection is taken by learned Counsel for the opposite party that no revision lies. The contention is that the lower Appellate Court had jurisdiction to hear the appeal and that if in deciding that appeal it has taken an erroneous view of law on which his finding as to jurisdiction is based, he cannot be considered to have acted without jurisdiction or to have failed to have exercised a jurisdiction vested in him or to have acted illegally or with material irregularity in the exercise of his jurisdiction, even if his view on a question of law is erroneous. Reliance is placed on Panchanand Pandey V/s. Ram Parpan Tewari Civil Revn. No. 43 of 1936. In that case, the Court of first instance had held that it had no jurisdiction. On appeal the Civil Judge held, on his view of the law applicable to the case, that the Civil Court had jurisdiction. Accordingly the order of the first Court was reversed and the case was remanded for disposal on the merits. In the case before us the position is quite different. The munsif held that he had no jurisdiction to entertain the suit and on appeal the Civil Judge has taken the same view. The question before us is whether the munsif had jurisdiction to entertain the suit filed in his Court. The question involved is directly one relating to his jurisdiction and we have no doubt that the High Court has power under Section 115 to interfere in revision. Our view is fully supported by Badami Kuar V/s. Dinu Rai (1886) 8 All. 111 a case decided by a Full Bench of this Court consisting of five Judges. Accordingly we over, rule the preliminary objection and proceed to consider the revision on its merits.