HIRACHAND SUCCARAM GANDHY Vs. GIPRAILWAY COMPANY

JUDGEMENT

(1.) These appeals arise out of two suits brought against the G.I.P. Railway in the Court of the First Class Subordinate Judge at Sholapur on March 10, 1925, a June, 29, 1925, respectively. On July 1, 1925, the G.I.P. Railway became a state managed railway, and in September 1925, the learned First Class Subordinate Judge returned the plaints for presentation to the proper Court, on the ground that the Secretary of State for India in Council being joined as a party to the suits, he had no jurisdiction to try the suits. The plaints were presented to the District Court and numbered as Suits Nos. 4 and 11 of 1925.

(2.) The learned District Judge raised a preliminary issue "whether the suit is bad for want of notice under Section 80 of the Civil Procedure Code," and found on the issue in the affirmative and rejected the plaints.

(3.) It is urged on behalf of the appellants that Section 80 of the Civil Procedure Code has not been properly construed, that the suits were already instituted in the First Class Subordinate Judge's Court, that the suits in the District Court were merely continuations of those suits and therefore no notice under Section 80 of the Civil Procedure Code was necessary, and that the notice given under Section 149 of the Indian Railways Act was a sufficient notice. In support of the contention that the suit in the District Court was a continuation of the previous suit, reliance is placed on Order XXII, Rule 10, of the Civil Procedure Code, and the decision in Chunnilal V/s. Abdul All Khan (1901) I.L.R. 23 All. 331, 335. If the plaints had not been returned by the First Class Subordinate Judge for presentation to the proper Court and the suits had been tried by the First Class Subordinate Judge, it could have been said that the suits were continued against the Secretary of State, who was added as a party, under Order XXII, Rule 10. Jurisdiction is now given to the Subordinate Judge to try suits against State managed railway companies by Bombay Act VI of 1926, but in the present case the plaints were returned for presentation to the proper Court before Bombay Act VI of 1926 came into force. Under Section 32 of Bombay Civil Courts Act, XIV of 1869, the First Class Subordinate Judge had no jurisdiction to try a suit in which the Government was a party. See Secretary of State V/s. Narsibhai . The First Class Subordinate Judge was, therefore, justified in returning the plaints for presentation to the District Court under Order VII, Rule 10. When a plaint is returned for presentation to the proper Court and is in fact presented to the Court having jurisdiction, it cannot be said that the previous suit instituted in a Court having no jurisdiction was continued in the Court which had jurisdiction to try the suit. Under Section 26 of the Civil Procedure Code, "every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed." Under Order IV, Rule 1, "every suit shall be instituted, by presenting a plaint to the Court or such officer as it appoints in this behalf," and under Rule 2 "the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits, and such entries shall be numbered in every year according to the order in which the plaints are admitted." On presentation of the plaints in the District Court, the suits were entered in the register of civil suits of the District Court. The presentation, therefore, of the plaints in the District Court was an institution of the suits under Section 26 and the provisions of Order IV of the Civil Procedure Code. Under Section 14 of the Indian Limitation Act, the time occupied in prosecuting the previous suite shall be excluded in computing the period of limitation for the fresh suits instituted in the District Court. In Hedlot V/s. Karan (1911) 15 C.L.J. 241, it was held that the combined effect of Section 57 of the old Civil Procedure Code (corresponding to Order VII, Rule (10)), and Section 14 of the Indian Limitation Act was at when the plaint was returned to be presented in a Court of competent jurisdiction, the suit was to be considered as instituted on the date of such presentation, and the plaintiff should amend the plaint so as to include all intermediate transactions between the date of the first presentation and the date of the presentation to the competent Court. To the same effect are the decisions in the eases of Bimala Prosad Mukerji V/s. Lal Moni Devi (1925) 30 C.W.N. 90 and Mohidin Rowthen V/s. Nallaperumal Pillai (1914) 21 M.L.J. 1000.