- (1.) THIS appeal is directed against an order of remand passed by the lower appellate Court to the effect that the suit to be reheard and decided in accordance with law and in the light of the observations made by the lower ap pellate Court.
(2.) THE suit which has given rise to this appeal was filed by Vishwanath Banerji, the plaintiff-respondent, in the Court of the Munsif of Varanasi for a declaration that an order dated 19-7-1961 passed by Sri H. K. Sharma, Magistrate First Class, Deoghar District Santhal Parganas Bihar in Criminal Case No. 376 of 1961, misc., case No. 125 of 1961, Smt. Gauri Banerji v. Vishwanath Banerft under S. 488, Cri minal P. C.. was illegal, ultra vires, void, ineffective and unenforceable and for a permanent injunction restraining the de fendant from taking any steps to realise by distress warrants or otherwise any sum of money from the plaintiff in pursuance of the said order. Admittedly Vishwanath Banerji and Smt Gauri Banerji are hus band and wife having been married at Deoghar in Bihar in 1958. Admittedly both of them last resided iii Varanasi It was alleged by the plaintiff that his wife Smt. Gauri went away to her father's place in May 1959 to see her ailing father but refuseci to return to him despite his best efforts. The plaintiff then took pro ceedings under Section 9 of the Hindu Marriage Act against his wife Smt. Gauri Devi for restitution of conjugal rights and it was registered as case No, 29 of 1960 in the Court of District Judge, Varanasi. During the pendency of the said proceed ings for restitution of conjugal rights Smt. Gauri Banerji applied for interim main tenance and expenses for defending the case. This application was rejected. It was then alleged that without the know ledge of the plaintiff and without any notice being served upon him, Smt. Gauri took proceedings before the Magis trate in Deoghar under Section 488, Cri minal P. C. and that she and her fattier fraudulently before the Court having re presented that the notices had been serv ed, got an order behind the back of the plaintiff directing the plaintiff to pay a sum of Rs. 70 per month as maintenance. It was also alleged that the plaintiff only knew of the said order when distress pro ceedings were started against him by the police at Varanasi and a threat was made for attachment of his properties. To pro tect himself from the alleged illegal attachment the plaintiff filed the suit giving rise to this appeal and for the relief mentioned above. The learned First Additional Munsif before whom the instant suit came up for hearing held that the Civil Court had no .jurisdiction to entertain a suit for setting aside of an order duly passed by a Magis trate under Section 488 of the Cri. P. C. and dismissed the suit on this preliminary point. On appeal by the plaintiff the learned Judge of the lower appellate Court took a contrary view and held that the suit was cognizable by a Civil Court as it was based on a cause of action alleging fraud and because the order of the Magis trate of Deoghar passed under Section 488, Criminal P.C. was impugned as vitiated not having been duly passed. The learn ed Judge set aside the decree of the learn ed Munsif and remanded the suit for re hearing in accordance with law. It is against this order that Smt. Gauri Banerji the defendant, has filed this appeal
(3.) ON behalf of the appellant it was urged by her learned counsel that an order passed under Section 488 of the Criminal P. C. even assuming there was some pro cedural irregularity could not be set aside by a Civil Court and the only remedy which was open to the aggrieved party was to file an appeal or revision under the Criminal Procedure Code. It was also Urged that the Court at Varanasi had no jurisdiction as no part of the cause of ac tion arose within its jurisdiction. The sub mission was that the impugned order was passed by the Magistrate in Deoghar in Bihar and even if a suit would lie in a Civil Court for a declaration that the said order was null and void and for an in junction restraining the defendant from enforcing that order, it could he filed only In the Civil Court at Deoghar which will have jurisdiction and where the defen dant resided. 4-A. In order to meet the second con tention of the learned counsel for the ap pellant indicated above, the learned coun sel for the plaintiff-respondent submitted that since the order of the Magistrate under S. 488 was tried to be enforced in Varanasi through the police of Varanasi and a threat was made by the police at Varanasi to attach the property of the plaintiff, it was always open to the plain tiff to seek a declaration that his pro perty was not attachable in execution of the said order and for such a suit the cause of action, at any rate, a part of it, arose at Varanasi within the jurisdiction of the Civil Court of Varanasi. The learn ed counsel for the defendant-appellant Strenuously contended in reply that no such plea was raised in the plaint and no such relief was sought in the plaint so as to bring the suit within the jurisdiction of the Civil Court at Varanasi. On a reading of the plaint and the reliefs claimed it did appear to me that the real intention of the plaintiff was to seek such a relief and the cause of action based on the pro cess issued by the local police can be said to be pleaded. But I thought It proper, as the suit was still in its infancy, to allow an opportu nity to the plaintiff to amend his plaint so that what was implicit hi the plaint be made explicit. The learned counsel for the plaintiff-respondent filed an appli cation for amendment of the plaint which despite time having been granted to the learned counsel for the defendant-appel lant has not been opposed. I have allow ed the amendment to be incorporated in the plaint. It would be open to the defen dant to file a fresh written statement to meet the explicit pleas raised for which reasonable time will be granted by the lower Court after the record had been re ceived by it from this Court. The pleas of a specific nature having been reused in the plaint and the proper relief having] been sought, the Court at Varanasi will have jurisdiction to entertain the suit;