SHYAM NANDAN SAHAY Vs. DHANPATI KUER
LAWS(PAT)-1960-2-2
HIGH COURT OF PATNA
Decided on February 09,1960

SHYAM NANDAN SAHAY Appellant
VERSUS
DHANPATI KUER Respondents


Referred Judgements :-

BIBI SAIRAH V. MT. GULAB KUER [REFERRED TO]
MT. KHUDAIJAT-UL-KUBRA V. MT. AMINA KHATUN [REFERRED TO]
AMIR CHAND V. BUTI SHAH [REFERRED TO]
KANHAIYA LAL V. HAMID ALI [REFERRED TO]
MAQSOOD ALI V. H. HUNTER [REFERRED TO]
KAMMARAN NAMBIAR V. VALIA RAMUNNI [REFERRED TO]
DR. K.L. DAFTARY V. K.L. DUBE [REFERRED TO]
KARTAR SINGH VS. JHARKHAND MINES AND INDUSTRIES [REFERRED TO]
NARAIN DAS GOPAL DAS VS. (FIRM) KHUNNI LAL LACHMI NARAIN [REFERRED TO]



Cited Judgements :-

PRADEEP CHAND SHARMA VS. BUDHI DEVI [LAWS(HPH)-2017-4-11] [REFERRED TO]
DEWAN CHAND BARBAR VS. JAY PEE FINANCE CORP [LAWS(J&K)-1976-12-9] [REFERRED TO]
ALICE SEQUEIRA VS. L MIRANDA [LAWS(KAR)-1971-5-6] [REFERRED TO]
ARJUN HO VS. COMMISSIONER CHOTANAGPUR DIVISION [LAWS(PAT)-1975-9-5] [REFERRED TO]
VIDYA SHANKER TIWARI VS. SURYA KANT TIWARI [LAWS(ALL)-2013-8-1] [REFERRED TO]
RAM PARSHAD VS. PREM NATH [LAWS(J&K)-1993-3-10] [REFERRED TO]
SAI KRISHNA GENERAL STORES SECUNDARABAD VS. B SAI ANAND PRASAD [LAWS(APH)-2003-9-37] [REFERRED TO]
GHANSHYAM GURJAR VS. HEMANT SINGH [LAWS(RAJ)-2022-5-204] [REFERRED TO]
ANIL KUMAR DAS VS. ARUN KUMAR BANERJEE [LAWS(CAL)-1962-2-10] [REFERRED TO]
MAHADEO VS. HANUMANMAL [LAWS(RAJ)-1968-9-1] [REFERRED TO]
STATE BANK OF INDIA VS. BAL RAJ AND ANR. [LAWS(P&H)-1988-12-65] [REFERRED TO]
SURINDER SINGH SAUTHA VS. RAJA YOGINDRA CHANDRA [LAWS(HPH)-2014-5-59] [REFERRED TO]


JUDGEMENT

Choudhary, J. - (1.)Defendants second party are the petitioners. The plaintiffs opposite parties 1 and 2 instituted Title suit No. 143 of 1953 against the petitioners and opposite parties 3 to 22 in the First Court of the Munsif at Muzaffarpur on 2-9-1953 for declaration of their title to, and for joint possession with the opposite parties 15 to 22 over, the lands in suit by dispossessing the petitioners and opposite parties 3 to 14 or whichever of them be found to be in possession thereof. They also made a prayer for a decree of mesne profits, past and future. The suit was valued at Rs. 825/- and filed before the Munsif, First court who had pecuniary jurisdiction to try suits up to value of Rs. 2000 only. The petitioners filed a written statement contesting the suit on various grounds, including one of valuation. They stated that the valuation given by the plaintiffs was too low and, on a proper valuation the Munsif, First court would have no jurisdiction to try the suit. An issue regarding the valuation of the lands in suit was also raised. In February, 1955, the suit was transferred by the District Judge of Muzaffarpur to the court of the Execution Munsif at Muzaffarpur who had pecuniary jurisdiction to try suits up to the value of Rs. 4,000/-. In this court also the petitioners pressed the question of valuation of the lands in suit, and both parties adduced evidence in support of their respective contentions in regard to that matter. The execution Munsif, on 7-7-1955, held that the total value of the suit was Rs. 3,947/8/-. On 12-7-1955, the petitioners filed an application before him stating that he had no power to entertain the plaint and that the transfer of this case by the District Judge from the first court of the Munsif to his court was illegal and could not validate the filing of the plaint. It was contended that inasmuch as the Munsif, First court, in whose court the plaint was originally filed had no jurisdiction to entertain the plaint of this suit, the valuation of which had been found to be Rs. 3,947/8/- the entire proceedings from the date of the institution of the suit including the transfer of the same to the court of Execution Munsif, were null and void and without jurisdiction. It was, accordingly, prayed that the plaint should be returned to the plaintiffs for being filed in the proper court. The learned Execution Munsif overruled the above contention, and held that he had jurisdiction to try the suit. Against the above order of the Execution Munsif, the petitioners made this application in revision to this court, which was first heard by a single judge who referred to a Division Bench for hearing. Before the Division Bench a Bench decision of this court in Bibi Sairah v. Mt. Gulab Kuer, AIR 1919 Pat 345, was cited in support of the contention raised on behalf of the petitioners. That Bench however, in view of various decisions of other High Courts doubted the correctness of the above decision of this court, and the case has, therefore, been referred to the Full Bench.
(2.)Mr. B C. De, appearing for the petitioners, has contended that the value of the suit as found by the Execution Munsif being above the pecuniary jurisdiction of the Munsif, first court, Muzaffarpur, in whose court the plaint of the suit was originally filed, there was no valid presentation of the plaint and therefore, there was no legally instituted suit pending in that court which could be transferred by the District Judge to the court ot the Execution Munsif for trial. He has submitted an argument that the District Judge had no jurisdiction to transfer such a case to any other court, and, by the order of transfer, the transferee court could have no jurisdiction to try the suit. On behalf of the plaintiffs opposite parties, however, it is contended that the suit as originally filed, in view of the statements contained in the plaint was validly instituted in the first court ot the Munsif at Muzaffarpur as according to the value put in the plaint it was within the pecuniary jurisdiction of that Munsif. It is further contended that the District Judge had full jurisdiction to transfer the suit from the first court of the Munsif to the Court of the Execution Munsif.
(3.)The provision for transfer by superior court of a case pending in the court subordinate to it is given in Section 24 of the Code of Civil Procedure, Sub-section (i) of which runs as follows:
"24. (1). On the application of any of the parties and after notice to the parties and after hearing such of them as desired to he heard, or of its own motion without such notice, the High Court or the District Court may at any stage -- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same or (b) withdraw any suit, appeal or other proceeding pending in any court Subordinate to it, and (i) try or dispose of the same: or (ii) transfer the same for trial or disposal to any court Subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the court from which it was withdrawing.''
According to this provision, the District court could withdraw any suit pending in any court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it competent to try or dispose of the same. It is under this provision that in the present case the District Judge transferred the title suit from the first court of the Munsif at Muzaffarpur to the court of the Execution Munsif there. The contention, however, on behalf of the petitioners is that, in order that the District Judge could pass an order of transfer, the suit should have been legally pending in the court in which it was originally instituted. It has been submitted that a suit can be said to be pending in a court only when that court had jurisdiction to entertain it; but if for any reason that court could not entertain the suit, it could not be said to be pending in that court. In other words, the contention put forward is that a suit is said to be pending in the court only when the plaint of the suit is validly presented in that court; and a plaint can only be said to be validly presented in a court if, on facts found, that courts could have jurisdiction to entertain the same. On the basis of the above argument, it has been submitted that the value of the present suit having been found to be above Rs. 2,000/- by the Execution Munsif, its plaint was not validly presented before the Munsif First court and it was, therefore, not pending, in the legal sense of the term, in that court at the time when the order of transfer was made by the District Judge. The contention put forward on behalf of the plaintiffs opposite parties, however, is that the jurisdiction of the court to entertain a suit at the time when the plaint is presented is to be determined on the facts and valuation given in the plaint and the institution of such a suit cannot be said to be void if subsequently it is found, from facts ascertained later on, that that court had no jurisdiction to entertain it.


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