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Allahabad High Court · body

1984 DIGILAW 139 (ALL)

Bisheshwar Dayal v. Munsif Magistrate, Bijnor

1984-02-08

B.N.SAPRU

body1984
Judgment B. N. Sapru, J. 1. THIS writ petition is directed against an order of the trial court dated 30-10-1980 whereby the defence of Bisheshwar Dayal was struck off for non-compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure. 2. THE landlords had filed a suit for ejectment and arrears of rent against Bisheswar Dayal. THE suit was instituted by filing a plaint which mentioned the name of the Court as the Court of Munsif, Bijnor. From Annexure-2 to the counter affidavit it appears that the Plaint was presented in the Court of Sri R. K. Dubey who was then exercising the powers of Munsif, Bijnor and also the Judge Small Causes. THE valuation of the suit was Rs. 1,400/-. At that time Sri R. K. Dubey had the jurisdiction to try the suit on Small Causes side upto Rs. 2,000/, Sri R. K. Dubey was transferred and he was succeeded by Sri B. M. Joshi as Munsif, Bijnor, who was also invested with the powers of Judge Small Causes but his power was limited to the pecuniary jurisdiction of Rs. 1,000/-. The suit was decreed ex parte on 5-7-1977. The petitioner applied for setting aside the ex -parte decree on 25-7-1977. The ex parte decree was set aside on 1-10-77. The case was fixed for filing of written statement on various dates. The petitioner filed his written statement on 2-3-1978. In the written statement, a plea was taken that the Munsif had no jurisdiction to entertain the suit and the proper forum for the suit was the Court of Judge Small Causes. 3. WHEN the matter came up before the Court on 8-5-78 the objection to jurisdiction was again taken by the defendant. On 13-8-1978 the Munsif wrote a letter to the District Judge (Annexure 2 to the counter affidavit). He found that J the suit was instituted In the Court of the Judge Small Causes but was wrongly 1 entered in the register maintained in respect of suits on original side instead of the J register maintained for Judge Small Causes suits. He found that his pecuniary M jurisdiction as a Judge Small Causes was limited to Rs. 1,000/- and as such the " suit was not triable by him. He found that his pecuniary M jurisdiction as a Judge Small Causes was limited to Rs. 1,000/- and as such the " suit was not triable by him. Sri B. M. Joshi also found that since the plaint was rightly presented, it would not be proper to return the plaint for presentation to a competent court. In his letter dated 15-5-1978 addressed to the District Judge after reciting the aforesaid facts Sri B. M. Joshi requested the District Judge to transfer, the case to some other court competent to try the suit. The District Judge by his order dated 18-5-1978 transferred the case to the Court of the Civil Judge to try the suit as a Judge Small Causes, Bijnor. Consquently the suit was registered in the Court of the Judge Small Causes on 28-5-1978. 4. FROM paragraph 11 of the counter affidavit it is clear that the information was sent from the transferee court to the counsel for the petitioner and landlord respondents informing them vide notice dated 3-1-1979 (Annexure 4 to the counter affidavit) that 9-3-1979 was the date fixed for the disposal of the case. The fact that this notice was served on the counsel for the petitioner is not clearly denied by the petitioner in his rejoinder affidavit. On 9-3-1979 an application was filed for striking off the defence on the ground of non-compliance of the provisions of Order XV Rule 5 of the Cod:; of Civil Procedure. On this application, the counsel for the petitioner endorsed that- "I am not counsel in this case as I was appearing in the Munsif court and I have no information about the institution of this case in this court and this application be delivered to the client." The assertion by the petitioner is that he was informed about the transfer of the case only on 3-3-1979. 5. THE petitioner, according to the counter affidavit, filed objections to the application under Order XV Rule 5 of the Code of Civil Procedure on 4-4-1979. THE petitioner made the required deposits on 11-4-1979. As mentioned earlier, the petitioner's defence was struck off and the petitioner's revision had also been dismissed. 6. AGGRIEVED, the petitioner has filed the instant writ petition. THE petitioner, according to the counter affidavit, filed objections to the application under Order XV Rule 5 of the Code of Civil Procedure on 4-4-1979. THE petitioner made the required deposits on 11-4-1979. As mentioned earlier, the petitioner's defence was struck off and the petitioner's revision had also been dismissed. 6. AGGRIEVED, the petitioner has filed the instant writ petition. The learned counsel for the petitioner has argued that the suit having been filed in the Court of the Munsif Bijnor, it could not have been directed to be transferred to the Court of the Judge Small Causes. He further urges that in view of the fact the order of transfer is bad, the order passed by the transferee court is also without jurisdiction. 7. THE learned counsel for the petitioner argues that in the plaint the name of the court concerned is given as 'the Munsif, Bijnor'. It cannot be treated to have been instituted in the Court of the Judge Small Causes. Bijnor. 8. THE learned counsel has referred me to the provisions of Order VII Rule 1 of the Code of Civil Procedure wherein under clause (a) the plaint is required to contain the name of the Court in which the suit is brought. The learned counsel has relied upon a decision in the case of Deep Chand v. Kasoombiri Lal, AIR 1980 All. 117 . In that case a suit had been instituted asking for several reliefs. Subsequently the reliefs were amended and the relief that remained was only for the ejectment and arrears of rent. It was found that under the U. P. Civil Laws Amendment Act, 1972, such a suit could only be instituted in the Court of the Judge Small Causes. The Court directed the return of the plaint. The High Court held that the order was proper and the learned counsel had failed to point out any provision under which it was obligatory on the Munsif to have ordered the transfer of the case in the circumstances of the case. 9. THE learned counsel for the respondent has argued that mere misdescription in the title of the name of the Court in the plaint would not be decisive. 9. THE learned counsel for the respondent has argued that mere misdescription in the title of the name of the Court in the plaint would not be decisive. He has pointed out that Sri R. K. Dubey in whose Court the suit had been instituted, was both the Munsif, Bijnor, and was also exercising the powers of the Judge Small Causes with a pecuniary jurisdiction upto Rs. 2,000/-. 10. HE has also referred to Section 4 of the Provincial Small Causes Courts Act wherein it is provided as under : "In this Act, unless there is something repugnant in the subject or context, "Court of Small Causes" means a Court of Small Causes constituted under this Act, and includes any person exercising jurisdiction under this Act in any such Court." He submits that in the context of the case and in view of the provisions of Sec. 4 of the Provincial Small Causes Courts Act the suit should be deemed to have been rightly instituted in a competent court and consequently the 01 der of transfer was well within the jurisdiction of the District Judge when Sri R. K. Dubey ceased to function as a Judge Small Causes and Sri B. M. Joshi became the Judge Small Causes whose jurisdiction was limited to Rs. 1,000/-. 11. THE learned counsel for the respondent has referred me to a decision of a Full Bench of this Court in the case of Bhagwati Pandey v. Badri Pandey, AIR 1931 All. 574. In that case, it was held that where a Munsif who is vested with a power of Judge Small Causes is transferred and was not in the District, a subordinate Judge invested with the powers of Judge Small Causes for the area within the jurisdiction of the Munsif would have the authority to entertain the proceedings. 12. IN this case the District Judge transferred the case to the Court of Civil Judge, Bijnor as a Judge of Small Causes Court, Bijnor, as is evident from Annexure 3 to the counter affidavit and, therefore, the order of the District Judge is strictly within the scope of the provisions of Sec. 35 of the Provincial Small Causes Courts Act. In the circumstances, the argument of the learned counsel for the petitioner that the transferee court had no jurisdiction, cannot be accepted. 13. In the circumstances, the argument of the learned counsel for the petitioner that the transferee court had no jurisdiction, cannot be accepted. 13. THE next argument of the learned counsel for the petitioner is that the petitioner was entitled to the benefit of the provisions of Sec. 20 (4) of the U. P. Act No. 13 of 1972 as he had made the required desposits on 11 4-1979. 14. AS I have already held that the Court to which the plaint was presented was in fact a Court of Judge Small Causes and not a Court of Munsif, despite the wrong description given in the plaint, it is obvious that the courts below were right in holding that the petitioner did not make the required deposit on the first date of the hearing of the suit. In the circumstances, I find no merit in this writ petition which is dismissed with costs The interim order dated 12-5-1982 is vacated. Petition dismissed.