S.N.BHARGAVA, J. - (1.) THESE two matters arise between the same parties and in connection with the same dispute, and hence, they are being disposed of by this common judgment.
(2.) S. B. Civil Revision Petition No. 118/1990 has been directed against the order of the Additional District Judge, Sikar, allowing an application tiled by the defendant Peer Gulam Jilani u/s 10 C. P C. and staying further proceedings in Civil Suit No. 13 of 89 filed by the plaintiff petitioner Peer Gulam Naseer. S. B. Civil Misc. Appeal No. 172/90 has been filed by Peer Gulam Jilani against the judgment of the Additional District Judge, Sikar, dismissing an application for temporary injunction in a suit filed by Peer Gulam Jilani (appellant), for restraining Gulam Naseer and others, defendant-respondents from entering the Dargah Hazrat Nazmuddin Sahib, Fatehpur and to act as Sajjadanashin and Mutwalli of the said Dargah. There is a famous Dargah Hazrat Khwaja Haji Mohd. Nazmuddin Sahib, at Fatehpur (hereinafter referred to as the 'dargah' ). Haji Nazmuddin was the founder of the said Dargah but did not lay down any mode of succession. However, after his death, his eldest son Nasurrudin became the Sajjada Nashin and Mutwalli of the Dargah. After the death of Nasurudddin, his eldest son Gulam Nazmuddin was appointed by a Will as the Sajjada Nashin, though he was only three years of age. After the death of Gulam Nazmuddin, his eldest son Gulam Sarvar became the Sajjada Nashin and Mutwalli who framed a scheme (JAPTA) in the year 1932 for the succession of the office of Sajjada Nashin and Mutwalli of the said Dargah. After the death of Gulam Sarvar, his eldest son Nurul Hassan was appointed Sajjada Nashin through a Will. Nurul Hasan had no male issue, and therefore, he made a Will in favour of Peer Gularn Naseer who was his daughter's son and nominated and declared him as Sajjada Nashin and Mutwalli, by a registered will dated 16. 11. 1979. Thereafter, Suit No. 31/82 was filed by Peer Gulam Naseer (minor) claiming himself to be Sajjada Nashin and Mutwalli of the Dargah, through his natural guardian and next friend Muajjam Ali, against Peer Jilani and others, seeking permanent injunction against them for restraining Peer Gulam Jilani or their agents from entering the Dargah and not to disturb him in discharging his functions as the Sajjada Nashin and Mutwalli. Along with the said suit, an application for temporary injunction under Order 39 Rules 1 and 2 C. P. C. was also filed. The learned Munsif allowed the said application by his order dated 3. 12. 1982 and granted an injunction in favour of Peer Gulam Naseer restraining Peer Gulam Jilani from interfering in the religious duties to be performed by him as the Sajjada Nashin. It was further directed that the Rajasthan Board of Muslim Wakf will keep superintendence over the wakf property and will also manage the same, till Peer Gulam Naseer became major. Peer Gulam Jilani feeling himself aggrieved, preferred an appeal against the said order which was allowed by order dated 2. 8. 1986 and the order of the Munsif was set aside. Peer Gulam Naseer preferred a revision petition being S. B. Civil Revision Petition No. 657/1986 before this Court which was very hotly contested and the same was allowed by this court vide order dated 28. 10. 1988 and the order of the Civil Judge, dt. 28. 8. 86 was set aside and that of the trial court was maintained. A special leave petition No. 14030/88 was also filed against the order of the High Court in the Supreme Court which was rejected in limine on 4. 1. 1989. Against this order, a review petition was also filed but the same was also rejected by order dated 31. 3. 1989. Since the defendants in the suit, Peer Gulam Jilani and others were repeatedly objecting with regard to the low valuation of the suit, the plaintiff decided to raise the valuation of the subject matter of the suit and filed an application under Order 6 Rule 17 CPC for amending the plaint with regard to the valuation of the suit and fixed the value at Rs. 11,000/-Amendment sought for was allowed on 19. 10. 1989 and the plaintiff submitted amended plaint along with the additional court fee stamps on 3. 11. 1989. On the same day, the trial court passed order to return the plaint to the plaintiff for being presented in proper court. The plaintiff also moved an application under Order 7 Rule 10a CPC requesting to fix the date of appearance for parties in the court of District Judge, Sikar, where he will present the suit. The trial court fixed 2. 12. 1989 as the date of appearance before the District Judge and the same was notified to both the parties. The plaint could not be returned on the same day because the certified copy of the plaint etc. were not available. However the plaint was returned on 28. 11. 1989 and the same was filed in the court of District Judge, Sikar on 30. 11. 1989. Meanwhile, Peer Gulam Jilani filed a Civil Suit No. 50/89 (175/89) for permanent injunction before the District Judge, Sikar on 28. 11. 1989 for restraining Peer Gulam Naseer from interfering in any way, the plaintiff with the functioning of Sajjada Nashin and Mutwalli to be discharged by Peer Gulam Jilani. Along with the said suit, he had also filed an application under Order 39 rules 1 and 2 C. P. C. for temporary injunction and an ex parte injunction order was issued in favour of Peer Gulam Jilani by the court on the same day. Peer Gulam Naseer moved an application before the District Judge, Sikar, to vacate and cancel the ex-parte order. The District Judge modified his order on 28. 11. 1989 and both the parties were bound down to maintain status quo. Thereafter, both the cases were transferred to the court of Additional Distt. Judge, Sikar for further proceedings.
(3.) PEER Gulam Jilani moved an application u/s 10 r/w Sec. 151 CPC on 6. 1. 1990, praying for stay of further proceedings in Civil Suit No. 96/82 (13/89 ). Learned Addl. Distt. Judge allowed the said application vide its order dated 10. 1. 90 and stayed further proceedings in the suit. It is against this order that the Civil Revision Petition No. 118/90 has been filed by PEER Gulam Naseer. Shri Bajwa, learned counsel for Peer Gulam Naseer has drawn my attention to Secs. 26,27 and Order 7 Rule 10a CPC and has submitted that the suit filed by Peer Gulam Naseer in the court of the District Judge, Sikar was continuation of his earlier suit No. 31/82 which was filed by him in the court of Munsif Magistrate, Fatehpur. He has further submitted that the suit filed by Peer Gulam Naseer should by treated as a previous suit as the aforesaid Suit No. 31/82 was filed on 6. 8. 82, whereas the suit filed by Peer Gulam Jilani was on 28. 11. 989 only. He has further submitted that if the plaint is returned on the ground of pecuniary jurisdiction for presentation to the other court, the date of institution should be taken to be the date when the suit was initially instituted in the first court. In this connection, he has placed reliance on A. V. Varadarajulu Naidu V. K. V. Thavasi Nadar (1), Arya Pratinidhi Sabha V. Devraj (2), Raman V. Raman Vishwanathan (3), Smt. Savitri Devi V. Hira Lal (4), Ram Swaroop V. Pyare Das (5), and Ramayaswami V. Veerarajan Raja (6 ). On the other hand, Shri D. L. Bardhar, learned counsel for Peer Gulam Jilani, has very vehemently submitted that the revision petition should not be entertained and ought to be dismissed as there is no error of jurisdiction: the order has been passed by a competent court and none of the conditions laid down in Sec. 115 CPC empowering High Court to interfere in its revisional jurisdiction, exists in the present case. He has further submitted that presen- tatiort of plaint in proper court, after return, can not amount to continuation of earlier suit filed in the court which had no pecuniary jurisdiction to entertain it, meaning thereby that when the plaint is returned to be presented in a court of competent jurisdiction, the suit is to be considered as instituted on the date of such presentation and the suit thus presented, cannot be said to be a conti-nuation of the suit filed in a court without jurisdiction. He has further submitted that the trial of the suit in the court having no pecuniary jurisdiction is of no consequence and the decree if passed is nulls and void. The proper order would be to return the plaint for presentation in the proper court. He has further submitted that Order 7 Rule 10a CPC is not mandatory and is only directory. Shri Bardhar has placed reliance on M/s. Raunak International Ltd. V. Ota Kandla Pvt Ltd. (7), Amar Chand V. Union of India (8), Hira Chand V. G. I. P. Ry. Co. (9), Gouri Dutt V. P. T. S. Shankar (10), Abdul Rajak V. Samad Kuchay (11), Kesrimal V. Bansilal (12), Nani Kutty Amma V. K. K. Nair (13), and [vicco Laboratories V. Hindustan Rimmer (14 ). ;