VASAVATTULA SARABHAMMA Vs. VASAVATTULA PEDA VEERANNA

JUDGEMENT

(1.) In this case I was at first inclined to think that the lower Court's order required a reversal ; but on a careful comparison and contrast instituted by me between the allegations and reliefs of the plaint as originally filed in the District Munsiff Court of Peddapuram and the allegations and reliefs of the plaint as presented to the Sub-Court at Cocanada on return by the former Court, I am, satisfied that there are substantial and material points of difference between the two plaints which preclude the application to the present case of the ruling of the Full Bench reported in Visweswara Sarma V/s. Nair (1911) 21 M.L. I.L.R. 35 Mad. 567 (F.B.) on which strong reliance was placed by Mr. V. Suryanarayana the learned advocate for the petitioner.

(2.) The question which arose for decision in the Full Bench case was whether, where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under Order 7, Rule 10, Civil Procedure Code, the latter Court to which the plaint is presented is bound to give credit for the fee already levied by the former Court. The unanimous answer given by the three learned Judges, Sir Charles Arnold White, C.J., Munro and Sankaran Nair, JJ., is in the affirmative. That this ruling is applicable, only to cases in which the same plaint is presented to the proper Court, as was originally presented to the Court without jurisdiction, is unmistakably clear from what all the three learned Judges expressly say. Says the Chief Justice at page 572 of the report: The plaint presented to the small Cause Court, is the same plaint as that which was presented to the city civil court and returned by that court under 7, Rule 10 of the first schedule to the civil procedure code.

(3.) Sankaran Nair, J., observes to the same effect in the opening part of the judgment at page 574 of the report by referring to the plaint later presented to the Small cause court as being the same plaint as had been earlier presented to the city civil court. Munro, J., at page 573 refers to the plaint as presented to the Small Cause court as being the plaint as returned by the City Civil Court.