D.K.Seth, J. - (1.) Facts - A suit was filed in the Court of the learned Munsif in November 1995 being O.C. Suit No. 169 of 1995 for the following reliefs: "(a) Decree for cancelling the marriage held on 16.2.92 and setting aside the Hindu Marriage Registration certificate issued on 25.5.92. (b) Declaration that no marriage was held between the plaintiff and the defendant on 26.2.92 according to the Hindu Shastras or in any other way and the defendant is not husband of the plaintiff. (c) Permanent Injunction restraining the defendant from forcibly taking the plaintiff to the house of the defendant as his wife and or entering the house of the plaintiff as the plaintiff's husband and or creating obstruction in nursing works or any other works of the plaintiff. (d) Decree for entire costs of the suit along with interest for the same." 1.1. Subsequently this suit was sought to be withdrawn which was allowed by the learned Munsif by an order dated 10th of July, 1998 with liberty to sue afresh in the appropriate Court after recording that the plaintiff wanted to file the suit in the appropriate Court under the provisions of the Hindu Marriage Act, 1955. Thereafter, a suit was filed under section 12 of the Hindu Marriage Act in the Court of the learned District Judge, Dakshin Dinajpur, Balurghat which was registered as Matrimonial Suit No. 44 of 1998. Against the dismissal of this suit, the present appeal has been filed. The learned District Judge had found that there was no marriage between the parties, therefore, in his judgment and decree dated 19th of September, 2001, he had passed the following order: "In view of my foregoing observations, the petitioner should have to pray for negative declaration before a competent Court of lowest jurisdiction and section 12 has no application as she categorically denied solemnisation of any marriage in any form between her and O.P. Accordingly, she is not entitled to any relief in this case. These two issues are, accordingly, answered against her." 1.2. In the plaint the petitioner had pleaded that there was no marriage and inconsequence no consummation in between the petitioner and the opposite party was performed and that the alleged registration of the marriage under the Hindu Marriage Act was void and a nullity. The learned District Judge, on evidence and the materials on record placed before him, had come to the conclusion so far as Issue No. 1 relating to the maintainability of the suit that the suit was not maintainable in view of the fact that there was no marriage and as such, section 12 had no manner of application. On merit it had found that the opposite party took no attempt to establish that any such marriage was solemnized in between the parties. He had not examined either the barber or the priest or any important person attending the marriage. He had also not taken any step to prove the registration certificate by calling for the original from the sub Registry Office to show that the petitioner had signed the document. Since there was no marriage, there could not be any question of using force or fraud for solemnizing the marriage. Having regard to the facts and circumstances of the case, there was no scope for applying under section 12 of the Hindu Marriage Act, 1955. Since marriage was not proved, the registration of the marriage could not be accepted as valid and thus there was no question of marriage being consumed. Thus though he had found the issues on merit in favour of the petitioner but the learned Judge refused to grant relief on the ground that the petitioner was entitled to pray for negative declaration before a competent Court of lowest grade of jurisdiction and that the petitioner was not entitled to the relief claimed in the suit. No cross-objection has since been taken against this judgment by the husband/opposite party/respondent. Submission on behalf of the appellant:
(2.) Mr. Roychowdhury, appearing on behalf of the appellant, contends that it is the learned District Judge who is the competent Court to entertain all kinds of civil suits, including the kind of suit for negative declaration that there was no marriage. He may not be the lowest grade of Court of competent jurisdiction but that does not mean that the learned District Judge was not competent to entertain the suit. It was open to the learned District Judge to return the plaint for being presented to the appropriate Court or to retain the same and grant relief. He relies on sections 9, 13 and 18 of the Bengal Agra Assam Civil Courts Act, 1887. Relying on section 18 he contends that it is the learned District Judges who are competent to take cognizance of all suits triable by the Civil Courts, subject to section 15 of the Code of Civil Procedure (Code of Civil Procedure). Section 15 Code of Civil Procedure prescribes institution of every suit in the Court of lowest grade competent to try it. Section 15 is a procedural provision. It does not curtail the jurisdiction of the Court of higher grade of competent jurisdiction. It is only for the sake of convenience and in order to relieve or ease the pressure of suit on the higher grade of Courts and to leave such higher grade of Courts to deal with appeal and other matters. He also relies on Order 7 Rule 7 Code of Civil Procedure and contends that even in such a case the Court is competent to mould the prayer and grant relief. He also relies on some decisions to support his contention to which we will be referring to at appropriate stage. Submission on behalf of the respondent:
(3.) Mr. Dey, the learned counsel for the respondent, on the other hand, contends that the petitioner herself had filed the suit for declaration that there was no marriage in the lowest grade of competent Court, namely, the Munsif. But after some evidence was gone into, she withdrew the suit with liberty to file the suit under the provision of the Hindu Marriage Act, 1955. Accordingly, the learned Munsif had permitted withdrawal of the suit with liberty to file a suit before the appropriate Court under the Hindu Marriage Act. Therefore, she could not claim any relief before the learned District Judge where she herself consciously had filed the suit for declaration under section 12 of the 1955 Act. He also points out that it was the question of jurisdiction, which the petitioner herself had opted to file before one such Court at the lowest grade. Therefore, after having opted to bring the suit at the Court of the lowest grade, she was not entitled to withdraw the suit and file it before the Court of higher grade and claim relief. She was estopped from seeking any relief other than those available under section 12 of 1955 Act, since that was the ground for which the suit was allowed to be withdrawn from the Court of the learned Munsif for presenting before the learned District Judge. If she failed on that count, in that event, she could not seek for alternative relief. According to him, these two reliefs, being inconsistent and conflicting, the same could not be permitted to be adopted in the plaint. According to him, therefore, the learned District Judge was right in refusing the relief. The petitioner could continue the suit before the Court of competent jurisdiction from the stage from where it was withdrawn or otherwise or could proceed on the basis of the materials available on record and could have asked for transfer of the suit invoking section 24 of the Code of Civil Procedure to the appropriate Court. It was equally open to the learned District Judge either to transfer under section 24 of the Code of Civil Procedure or to return the plaint under Order 7 Rule 10 of the Code if Civil Procedure. He next contends that if the District Judge is permitted to decide the same, then one forum of appeal would become unavailable. Points at issue:;