- (1.) CIVIL Revision No. 198 of 1977 by the plaintiff is directed against an order Dt. 31st May, 1977 passed by the learned District Judge, Sitapur in Miscellaneous Case No. 63 of 1977 transferring Suit No. 14 of 1977, Umesh Chandra Bharadwaj v. Srimati Chandrawati Devi and others from the Court of CIVIL Judge to the Court of Munsif Biswan, Sitapur. The facts giving rise to this revision lie in a narrow campus and are these; Umesh Chandra Bharadwaj filed a Suit No. 14 of 1977 in the Court of CIVIL Judge against Smt. Chandrawati Devi and others seeking a decree for partition of his share in the properties mentioned in Sch. 'a' to the plaint. He alleged that his father late Sri Ram Prasad Sharma was the owner in possession of the said properties at the time his death which occurred on 23rd Nov. , 1976 at Lucknow. On the demise of Ram Prasad Sharma the said properties were said to have devolved on the plaintiff and the defendants who became co-owners of the same having one ninth share each. The plaintiff further alleged that he asked the defendants to partition the said properties but they declined to do so. In para. 5 of the plaint he alleged that he is a cosharer along with the defendants Nos. 1 to 8 in respect of the said properties and is in joint possession with them. He, therefore, prayed that a decree for partition and separation of his share be passed and he may be put in possession of his specific share. Para 7 being material is extracted hereinbelow :- "7. That the valuation of the suit for the purposes of jurisdiction is Rs. 45,000/- and for the purposes of court fee is Rs. 1250/- being one-fourth of the value as it is a suit for partition by the cosharer in joint possession of the share of plaintiff on which a court fee of Rs. 213. 50 is being paid. " A perusal of the record of the court below shows that the defendants did not file any written-statement while the suit was pending in the Court of CIVIL Judge, Sitapur. It seems, however, that the defendant No. 3 Mahesh Chandra Sharma filed an application on 28th May, 1977 in the Court of CIVIL Judge, Sitapur contending that the Court of CIVIL Judge had no jurisdiction to proceed with the case because the valuation of the suit is Rs. 5000/ -. The learned CIVIL Judge fixed 5th July, 1977 for hearing of that application. It further appears that several other applications pertaining to the appointment of receiver were also filed on 28th May, 1977 and some orders were passed on the same. Mahesh Chandra Sharma then filed an application in the Court of District Judge, Sitapur under S. 24, C. P. C. in para 7 of that application he stated as follows:- "7. That the applicant, inter alia, raised an objection that the valuation of the suit according to the plaintiff's share in the properties admittedly comes to Rs. 5000/- only and it was beyond the jurisdiction of the learned CIVIL Judge, Sitapur and all orders which had been passed up till then and which are being passed or which may be passed, are all null and void. " In paragraph 8 of that application Mahesh Chandra Sharma averred that the learned CIVIL Judge was requested by him to decide the matter of jurisdiction first and then proceed with the case but he refused to do so and passed an order modifying the earlier order of the appointment of the receiver. Again in para 10 (a) Mahesh Chandra Sharma contended that the learned CIVIL Judge is proceeding with the case of the valuation of Rs. 5000/- of which he has no jurisdiction. He, therefore, prayed before the District Judge that Suit No. 14 of 1977 be withdrawn from the Court of CIVIL Judge, Sitapur and the plaintiff be directed to present the plaint in the Court of competent jurisdiction. On that application the learned District Judge passed the following order :- "register as a misc. case. Issue urgent notice to the counsel for the plaintiff. Put up tomorrow for orders. " Sd. D. J. 30-5-1977" Notice to Sri Ram Krishna Srivastava Advocate was hence issued because he had appeared for Umesh Chandra Bharadwaj plaintiff before the Court of CIVIL Judge. On the back of the notice Sri Ram Krishna Srivastava Advocate made the following endorsement:- "sir, I have no instructions to receive notice. The client be informed. It is submitted that in law also I am not authorised to receive notice. Sd/- Ram Krishna Srivastava, 31-5-1977" No notice was issued to any other person who was impleaded as opposite parties Nos. 2 to 8. That application was placed before the learned District Judge for orders on 31st May, 1977. The learned District Judge held the service of that notice to be sufficient and passed the impugned order transferring the suit forthwith to the court of Munsif, Biswan. He also directed the Munsif Biswan to dispose of the application expeditiously on 31st May, 1977. The file of the suit was then transferred to the Court of Munsif, Biswan who passed an order dated 1st June, 1977 on an application marked 14c/2 recalling the appointment of the receiver. That order has been impugned in another CIVIL Revision No. 197 of 1977 by the plaintiff.
(2.) AS both the revisions raise common questions of law and fact, they are being disposed of by one judgment. For the plaintiff-revisionist it was submitted that the learned District Judge had no jurisdiction to pass the impugned order Dt. 31st May, 1977 transferring the suit from the Court of Civil Judge, Sitapur to the Court of Munsif Biswan, Sitapur inasmuch as no notice was served on the plaintiff and no notice was issued to any other person who was arrayed as opposite party in the application under S. 24, C. P. C. The learned counsel for the opposite-party Mahesh Chandra Sharma, however, submitted that since Sri Ram Krishna Srivastava Advocate was the counsel for Umesh Chandra Bharadwaj, service of notice on Sri Ram Krishna Srivastava was sufficient for the purposes of the application under S. 24, C. P. C. As pointed out earlier, a notice was sent to Sri Ram Krishna Srivastava, Advocate. It is also not in dispute that Sri Ram Krishna Srivastava had appeared as counsel for Umesh Chandra Bharadwaj in the Court of Civil Judge in Suit No. 14 of 1977 and his Vakalatnama is on the record. Sri Ram Krishna Srivastava, however, made the endorsement to the effect that he had no instructions to receive notice. He had also made a request that the plaintiff be informed and that he was not authorised to receive notice in law. Section 24 of the Civil P. C. deals with general power of transfer and withdrawal of cases. It provides that on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard or of its own motion without such notice, the High Court or the District Court may at any stage transfer any suit. Sub-sec. (5) provides that a suit or proceeding may be transferred under S. 24 from a court which has no jurisdiction to try it. So, before an order is passed under S. 24, C. P. C. transferring a suit from one court to another on any of the grounds mentioned in that section, it is necessary that a notice should be issued to the parties and a hearing should be given to such of them as desired to be heard. The application for transfer of Suit No. 14 of 1977 was made by Mahesh Chandra Sharma defendant No. 3. No order could be passed on that application without giving notice to the parties and without hearing such of them as desired to be heard. Mahesh Chandra Sharma filed that application in the Court of District Judge on 30-5-1977. The learned District judge registered it as a Misc. Case and ordered that urgent notice be issued to the counsel for the plaintiff. He did not say that notice be issued to the plaintiff and to other parties who were impleaded as opposite parties in that application. The question which now falls for determination is whether the notice issued to the counsel for the plaintiff could be deemed to be a notice issued to the plaintiff. R. 4 of O. III provides that no pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. Every such appointment as required to be made shall be filed in court. Explanation to sub-rule (2) of R. 4 provides that an application for the review of the decree or order in the suit and an appeal from any decree or order in the suit shall be deemed to be proceedings in the suit. It is not mentioned in the said Explanation or at any other place in O. III that an application filed under S. 24 of the Civil P. C. shall also be deemed to be proceedings in the suit. Sub-rule (3) of R. 4 of O. III, however, provides that nothing in sub- rule (2) shall be construed as extending as between the pleader and his client, the duration for which the pleader is engaged, or as authorising service on the pleader of any notice or document issued by any court other than the court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (i ). Umesh Chandra Bharadwaj had appointed Sri Ram Krishna Srivastava as his counsel in the suit and a Vakalatnama being paper on 13 Ga/2, was filed by him. A perusal of that Vakalatnama would disclose that the plaintiff Umesh Chandra Bharadwaj had not expressly authorised Sri Ram Krishna Srivastava to accept service of any notice by any Court other than the Court of Civil Judge. He was no doubt authorised to accept service of notice of any appeal or revision, but he was not authorised to accept service of notice with respect to an application filed under Section 24 of the Civil P. C. In the absence of an express agreement between Umesh Chandra Bharadwaj plaintiff and Sri Ram Krishna Srivastava Advocate, the latter was not unjustified in making the aforesaid endorsement on the notice which was issued by the Court of the District Judge in connection with the application under Section 24 of the Civil P. C. The Learned District Judge had not initially ordered that notice be issued to the plaintiff Umesh Chandra Bharadwaj. He had asked the notice to be served on the counsel for the plaintiff but that counsel, as observed above, was not authorised by Umesh Chandra Bharadwaj to accept that notice. The District Judge thereafter did not order that notice be issued to Umesh Chandra Bharadwaj personally. He also did not ask for the issuance of the notice to the other opposite parties. The impugned order was, however, passed by the learned District Judge on 31st May, 1977. Obviously that order was passed without issuing notice to the opposite-parties in accordance with law. That order also passed without giving any hearing to the opposite parties. In these circumstances the learned District Judge had no jurisdiction to pass the impugned order without issuing notice to the opposite-parties and without affording an opportunity of hearing to them. In the view I have taken I find support from a decision of this Court in Fatema Begam v. Imdad Ali (AIR 1920 All 249 (1)) wherein it was laid down that where upon an application of one of the parties the District Judge ordered a transfer, he was bound to issue notice and hear the parties before he made any order of transfer. In that case it was held that the learned District Judge in ordering the transfer before issuing the notice which he had ordered to be issued and before hearing the other side had acted without jurisdiction and his order was hence set aside. The impugned order of the learned District Judge dt. 31st May, 1977 is, for the reasons set out hereinabove, liable to be set aside.
(3.) THE matter may, however, be seen from another angle as well. Sub-sec. (5) of Section 24, Civil P. C. provides that a suit may be transferred under Sec. 24 from a Court which had no jurisdiction to try it. In the case in hand the plaintiff had filed the suit for partition valuing the suit for purposes of jurisdiction at Rs. 45,000/ -. He had no doubt said that his share in the properties in dispute was one-ninth. THE defendant No. 3 had raised the question of jurisdiction before the learned Civil Judge on 28th May, 1977. THE learned Civil Judge ordered that the said application be put up before him on 5th July, 1977. It may be mentioned here that Civil Courts had their summer vacations in the month of June. Before that application could be disposed of by the Civil Judge, the defendant No. 3 filed an application under Section 24, Civil P. C. in the Court of District Judge and the learned District Judge without serving notice on the plaintiff and without issuing notice to the other opposite-parties and without affording them any opportunity of hearing passed the order of transfer on 31st May,1977. Section 4 of the Suits Valuation Act as amended in its application to Uttar Pradesh provides that suits mentioned, inter alia, in Paragraph VI-A of Section 7 as in force for the time being in the Uttar Pradesh shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected. Paragraph (vi-A) of Section 7 of the Court Fees Act deals with a suit for partition. It provides that in a suit for partition Court fee is to be paid according to one-quarter of the value of the plaintiff's share of the property and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a coparcener or co-owner. THE value of the property for the purposes of this sub-section shall be at its market value. Now Section 6 (4) of the Court-fees Act provides that whenever a question of the proper amount of Court fee payable is raised otherwise than under sub- section (3), the Court shall decide such question before proceeding with any other issue. Similarly, Section 12 of the Court Fees Act provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the court in which such plaint or memorandum as the case may be, is filed and such decision shall be final as between the parties to the suit. So, if the defendant raises the dispute with regard to the valuation of the sub for the purposes of payment at Court fee, that question is to be decided by the Court in which the suit has been filed and in view of the provisions of Section 6 (4) of the Court fees Act that question has to be decided first before proceeding with any other issue. Similarly, if a question of valuation of the suit for the purposes of jurisdiction is raised that question has also to be decided by the court in which the suit is pending. THE defendant No. 3 in the instant case did raise the question of jurisdiction on the ground of valuation. According to him, the valuation of the suit for the purposes of jurisdiction was Rs. 5000/- hence the Civil Judge had no jurisdiction to try the suit. THE plaintiff has, however alleged in the plaint that the valuation of the suit for purposes of jurisdiction is Rs. 45000/ -. An issue had obviously been raised in the Court of Civil Judge by the defendant No. 3 with respect to the valuation of the suit for the purposes of jurisdiction. That issue was, therefore, to be decided by the Court of Civil Judge. THE learned Civil Judge had not declined to decide that issue. THE application was moved on 28th May, 1977 and he had ordered that the said application be placed before him for hearing on 5th July, 1977. THE defendant No. 3 instead of having a decision from the learned Civil Judge on the point filed an application under Section 24, Civil P. C. in the Court of District Judge who passed the impugned order without issuing notice and without affording an opportunity of hearing to the opposite-parties. While the issue as to whether the Civil Judge had jurisdiction to try the suit was pending for consideration before the learned Civil Judge, the suit was ordered to be transferred to the Court of Munsif. Sub-section (5) of Section 24 would be attracted only when the Court in which the suit is pending has no jurisdiction to try it. THE Civil judge was yet to record finding on that issue. THE learned District Judge, however, transferred it from his Court to the Court of Munsif. It would be noticed here that when the matter went to the Court of Munsif, Mahesh Chandra Sharma who had got the suit transferred from the Court of Civil Judge filed his written-statement on 3rd August, 1977, in paragraph 7 whereof he stated that the suit is under-valued and the Court fee paid is insufficient. In additional pleas he set out the valuation of the various properties in respect of which partition was sought for and ultimately in paragraph 30 of the written-statement he said that the suit had been deliberately under- valued and the Court fee had been insufficiently paid. According to him, the market value of the respective properties came to Rs. 6,98,000/ -. THE plaintiff and the defendant No. 3 were thus not ad idem on the question of valuation of the properties in dispute. This question was raised in the Court of Civil Judge. It was again raised in the Court of Munsif. THE Civil Judge had therefore, to decide that issue. If after hearing the parties he would have found that the valuation of the suit for the purposes of jurisdiction was Rupees 5000/- or less, he would have ordered presentation of the plaint to the proper Court. THE District Judge in the circumstances had no jurisdiction to decide that question and without reaching a finding that the Court where the suit was pending had no jurisdiction he could not pass any order under sub-section (5) of Section 24 transferring the suit from the Court of Civil Judge to the Court of Munsif, Biswan at Sitapur. THE impugned order suffers from want of jurisdiction and is liable to be set aside. Civil Revision No. 197 of 1977, is directed against the order dated 1st June, 1977, passed by the learned Munsif, Biswan. The plaintiff had filed an application for appointment of a receiver of the properties in question. He had also moved an application for appointment of a Commissioner. The learned Civil Judge before whom the suit was initially filed appointed a receiver of the properties on the application of the plaintiff as no objection had been filed against the said application. That order was subsequently modified by the order dated 20th May, 1977, by the learned Civil Judge and he fixed the case for further orders on 5th July, 1977. The defendant No. 3 filed an objection contending that certain properties were acquired by Lakshmi Narain on whose demise they came to be jointly owned by Thakur Prasad and Ram Prasad. He also contended that some of the properties mentioned by him were self- acquired properties of Thakur Prasad who had executed a will on 22nd April, 1957 in favour of the defendant No. 3 by virtue of which he had become owner of the said properties on the demise of Thakur Prasad. In support of his contention the defendant No. 3 filed the will and other documents. The learned Munsif came of the view that the plaintiff had not been able to prima facie show that he had a strong case and good title in his favour and that the properties in the hands of the defendant were in danger of being wasted. He, therefore, held that it was not a fit case where the appointment of commission be made. However, he observed that the defendants should not be allowed to diminish or endanger the properties. The defendant had given an undertaking that he would not dispose of, construct, demolish or damage the properties. Therefore, the prayer of the plaintiff for appointment of receiver was rejected. Defendants were restrained from disposing of constructing, demolishing or damaging the properties in any way which may diminish the value of the properties in suit till the disposal of the case. The defendant No. 3 was also directed to deposit one-ninth share of rent or any other income realised or received in respect of the suit-property. The order passed by the learned Civil Judge was, therefore, re-called by the learned Munsif in respect of the appointment of receiver and the receiver was directed to unlock the rooms and give possession of the same to the defendants.;