1. This revision petition has come up before us on a reference made by Singh J, before whom it first came up for hearing. The questions which the learned Single Judge has referred to us for decision are:
“1. Whether, on the facts and in the circumstances of this case, the defendant can be permitted to raise the question of jurisdiction for the first time in revision?
2. Is the decree passed by the Court of first instance entirely without jurisdiction?
3. What is the course open for the High Court? Should this Court set aside the decrees passed by the Courts below and order return of the plaint or should it examine the merits of the case and pass any other suitable order?” The learned Single Judge thought it necessary to make this reference because of a conflict in the decisions of this Court in Mukund v. Firm Kashilal, Civil Revn. No. 178 of 1965, D/- 29-9-1965 (Madh Pra) and Govardhan v. Nathu, Civil Revn. No. 208 of 1966, D/- 10-4-1967 (Madh Pra). In Mukund’s case, Civil Revn. No. 178 of 1965 D/-29-9-1965 (Madh Pra) (supra), one of us (Sen J.) expressed the view that “If there exists a Court who has power to hear the suit under Small Cause Courts Act and if the suit is instituted in a Civil Court that Court will have no jurisdiction to hear the suit of a small cause nature.” In the case of Govardhan Civil Revn. No. 208 of 1966, D/- 10-4-1967 (Madh Pra) (supra), Krishnan J. has held that there is no inherent lack of jurisdiction if a court, which is otherwise competent, tries a suit in breach of Section 16 of the Provincial Small Cause Courts Act, 1887; and that if the point of jurisdiction is not raised by the defendant in the court below, he cannot be permitted to raise the objection for the first time in revision.
2. The material facts are that the non-applicant No. 1 Ramprasad instituted a suit in the Court of the Civil Judge, Second Class, Mhow, for recovery of Rs. 700/- from the petitioner and the other non-applicant. The suit was tried on the regular side and decreed. That decree was confirmed in appeal by the second Additional District Judge, Indore. At the time of the institution of the suit, there existed a Court of Small Causes having jurisdiction to try the suit as a small cause suit, namely, the Court of the Second Additional District Judge, Indore. The suit was tried as an ordinary suit by the Civil Judge, Second Class, Mhow, without any objection being raised by the petitioner as to the jurisdiction of that Court to try the suit. This revision petition is directed against the decision in appeal of the Additional District Judge, Indore.
3. This reference was heard along with the reference made by Neyaskar J. in Jagannath v. Harisingh, Civil Revn. No. 462 of 1967 (Madh Pra), where also the question referred to the Division Bench was whether a regular court has jurisdiction to try a suit which is of small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits. The opinion expressed in C. R. No. 462 of 1967 fully answers the first two questions, referred by the learned Single Judge in this case. According to that opinion, the court of the Civil Judge, Second Class, Mhow, had no jurisdiction to try the, plaintiff-non-applicant Ramprasad’s suit,’ which was a suit of small cause nature and which was cognizable by the Court of the Second Additional District Judge, Indore, exercising small cause powers and jurisdiction within’ the same local limits; the decree passed by the Civil Judge, Second Class, Mhow, was, therefore, without jurisdiction and a nullity. The defendant applicant was entitled to raise objection as regards jurisdiction for the first time in this revision even if he had raised no such objection in the Court of the Civil Judge, Second Class, Mhow. The view expressed by the learned Single Judge in the order of reference is not different.
4. In regard to the third question, when the decree passed by the Civil Judge, Second Class, Mhow, is without jurisdiction and a nullity, this Court has to set aside that decree while exercising the revisional powers under Section 115, C. P. C. and make an order for the return of the plaint for being presented to the proper court. Order 7 Rule 10 C. P, C. directs 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.” When, therefore, at the time the plaint was filed in the Court of the Civil Judge, Second Class, Mhow there was a Court of Small Causes competent to try the suit, then there must be an order for the return of the plaint for being presented to the Court in which the suit should have been instituted. The High Court cannot, while exercising its powers under Section 115 C. P. C., dispose of the case on its merits. It must be noted that this being a revision petition under Section 115 C. P. C. and not a reference under Order 46 Rule 7 C. P. C. the High Court cannot exercise the powers conferred on it under Order 46 Rule 7. Indeed, in the present case the District Court could not have made a reference under Order 46 Rule 7 C. P. C. when no question of jurisdiction was raised in and decided by the Court of the Civil Judge, Second Class, Mhow.
5. The reference is answered accordingly.
6. I agree.