Hichha Mali vs Hira Mali on 18 July, 1934

Patna High Court
Hichha Mali vs Hira Mali on 18 July, 1934
Equivalent citations: 151 Ind Cas 938
Bench: Saunders


1. The plaintiff brought a suit in the Court of a Munsif at Sasaram for recovery of a sum of money which he claimed to be due to him on a hand-note. He obtained a decree, but it was set aside on appeal and his suit was dismissed. The only ground taken in this application for revision is that the proceedings in both the Courts were without jurisdiction because the suit was cognizable only by another Munsif at Sasaram who, when the suit was being tried, possessed the powers of a Small Cause Court.

2. It appears that there was no Court of Small Causes at Sasaram when the suit was instituted, but there was a Munsif vested with those powers before the evidence was taken. It is contended that as Section 16, Provincial Small Cause Courts Act, excludes from the jurisdiction of any other Court sails cognizable by a Court of Small Causes, the plaint ought to have been returned to the plaintiff for presentation to the latter Court as soon as that Court was constituted. In my opinion the Court which tried the suit had the necessary jurisdiction. Order VII, Rule 10, Civil Procedure Code, provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted; but the Munsif could not have returned the plaint under this rule because his own Court was the only Court in which the suit could have been instituted. There was no Munsif with Small Cause Court powers at the time when the plaint was filed. Section 16 of the Act, as I understand it, does not apply to a suit already instituted in another Court at a time when the latter Court had jurisdiction to entertain it. The suit though of the kind cognizable by a Court of Small Causes was not itself so cognizable after another Court had lawfully taken cognizance of it. The learned Advocate for the petitioner relies on the case of Municipal Board of Benares v. Shambhunath 101 Ind. Cas. 521 : A I R 1928 All 36 : 49 A 686 : 25 A. L. J. 42. In that case a claim had been made against two persons, but afterwards the claim against one of them was abandoned and the amount of the claim was reduced to a sum which made the suit cognizable by a Court of Small Causes. The plaint was amended and it was held that after the amendment it ought to have been returned to the plaintiff for presentation in that Court. The case is distinguishable from the present case because the plaint as amended became one which, in the view which the Allahabad High Court took, ought to have been presented in the Court of Small Causes. The petitioners plaint, as I have already stated, could not have been presented in any other Court than the Court, of the Munsif by whom the suit was eventually tried.

3. The application is dismissed, but without costs as the opposite party has not appeared to contest it.

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