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1985 DIGILAW 350 (GUJ)

DARBARA SINGH v. STATE

1985-12-24

A.M.AHMADI

body1985
A. M. AHMADI, J. ( 1 ) THE applicant-plaintiff instituted a Civil Suit to recover a sum of Rs. 6 62 273 ps. from the State Government. That suit was instituted in the City Civil Court at Ahmedabad and was numbered Civil Suit No. 333 of 1964. In that suit a preliminary issue was raised as to whether the Court had jurisdiction to hear the suit. The learned Judge in the City Civil Court by his judgment and order dated 23/03/1967 held that the City Civil Court had no jurisdiction ab initio to entertain and try the suit and accordingly directed that the plaint be returned to the plaintiff for presentation to proper Court. After this order as passed the plaintiff presented the suit in the Court of the Civil Judge (Senior Division Junagadh on 6/04/1967. On re-presentation of the plaint in the Junagadh Court it came to be numbered as Special Suit No. 14 of 1967. That suit was partly decreed by the trial Court. In the cross-suit filed by the State of Gujarat against the said plaintiff also part of the claim was decreed. The parties filed appeals against the said judgment and decree of the learned trial Judge in this Court. The plaintiffs appeal was numbered 548 of 1971. The High Court by its judgment and order dated 27/04/1978 partly allowed the plaintiffs appeal and directed the State to pay a sum of Rs. 2 25 492 ps. together with interest at the rate of six per cent per annum on the entire decretal amount (decreed by the trial Court as well as by the High Court) from the date of the suit until realisation with proportionate costs on the claim allowed. The applicant-plaintiff thereafter filed Special Execu- tion Application No. 38 of 1978 in the trial Court to recover the decretal dues from the State Government. In the said execution proceedings interest was claimed from the date of the original ins- titution of the suit in the City Civil Court at Ahmedabad and not from the date of its re-presentation in the Junagadh Court The short question which therefore arose before the executing Court was whether the applicant-plaintiff was entitled to interest on the amount decreed from the date on which the plaint was lodged in the City Civil Court at Ahmedabad or from the date of its re-presentation in the Junagadh Court. The learned Second Joint Civil Judge (Senior Division) Ahmedabad (sic Junagadh) upheld the objection filed by the judgment-debtor to the effect that interest could only be calcul- ated under the decree from the date of the re-presentation of the plaint in the Junagadh Court and not from the date of its original presentation in the City Civil Court at Ahmedabad. Aggrieved by the said order the original plaintiff-decree holder has filed this Revision Application. ( 2 ) MR. Hathi argued that the executing Court was bound to execute the decree as it was and it was not open to it to read words in the decree which were totally absent. According to Mr. Hathi the High Court decree permitted interest on the decretal amount at six per cent per annum from the dale of suit until realisation. According to him the words from the date of suit had to be understood as the date on which the plaint was initially presented in the City Civil Court Ahmedabad and not the date of its re-presentation in the Junagadh Court. He submitted that the learned Judge had read the words from the date of suit in Junagadh which did not exist in the High Courts decree and had thereby gone behind the decree. He therefore contended that the order passed by the learned Judge in execution was clearly erroneous and had to be set aside to give full effect to the High Courts decree. In support of this contention he relied on the decision in Ramaswami v. Veerayan Raja A. I. R. 1941 Madras 711. ( 3 ) IN the above case the Division Bench of the Madras High Court held that presentation of the plaint to a Court which has no jurisdiction to try the suit cannot be said to be proper institution of the suit even though the plaint is accepted as being in order and registered. It further held that when a plaint is presented to a competent Court having jurisdiction but later on because of a finding of fact recorded on the question of value of the subject matter the Court holds that it lacks pecuniary jurisdiction and returns the plaint its re-presentation would not mean that it was not instituted in the Court in which it was first presented. In that view that it took it distinguished the decision of the Bombay High Court in Hirachand Succaram v. G. I. P. Railway Co. A. I. R. 1928 Bombay 421. ( 4 ) SO far as the Bombay case is concerned the facts reveal that two suits were brought against the Railway in the Court of the First Class Subordinate Judge Sholapur on 10/03/1925 and 29/06/1925 respectively. On 1/07/1925 the G I. P. Railway became a State managed railway and in September 1925 the learned trial Judge returned the plaints for presentation to the proper Court on the ground that the Secretary of State for India in Council having been joined as a party to the suits he had no jurisdiction to try the suits. The plaints were re-presented to the District Court and were re-numbered. In the background of these facts the question arose whether the suits in the District Court were a continuation of the previous suits. In that context the Division Bench of the Bombay High Court observed as under:"the First Class Subordinate Judge was therefore justified in returning the plaints for presentation to the District Court under Order 7 Rule 10. When a plaint is returned for presentation to the proper Court and is in fact presented to the Court having jurisdiction it cannot be said that the previous suit institu- ted in a Court having no jurisdiction was continued in the Court which had jurisdiction to try the suit". The above decision of the Bombay High Court is binding on this Court. In the present case we find that the applicant-plaintiff instit- uted the suit in the Court which inherently lacked jurisdiction. The suit was instituted in the City Civil Court Ahmedabad on the plea that Ahmedabad being the capital of the State and the suit being against the State Government the Courts for the City of Ahmedabad had jurisdiction to entertain try and dispose of the suit. The learned Judge in the City Civil Court rejected this contention and came to the conclusion that the suit was instituted in a Court which was not competent to decide the same. The plaint was therefore ordered to be returned for presentation to the proper Court. The applicant- plaintiff thereupon presented the plaint in the Court of the learned Civil Judge (Senior Division) Junagadh. The plaint was therefore ordered to be returned for presentation to the proper Court. The applicant- plaintiff thereupon presented the plaint in the Court of the learned Civil Judge (Senior Division) Junagadh. When the High Court partly decreed the claim of the applicant-plaintiff it allowed interest at six per cent per annum from the date of the suit. The question which therefore arose before the executing Court was whether the words the date of the suit were referable to the date on which the plaint was re-presented in the Junagadh Court or could be read as the date of presentation of the plaint in the City Civil Court Ahmedabad. The learned Judge in the executing Court came to the conclusion that the expression the date of the suit in the decree meant the date of re-presentation of the suit in the Junagadh Court that is 6/04/1967. In taking this view he referred to the decision of the Supreme Court in Amar Chand v. Union of India A. I. R. 1973 S. C. 313. In that case the Supreme Court stated that the word court in sec. 4 of the Limitation Act meant a proper Court having jurisdi- ction to entertain the suit. It further observed that with reference to the submission that the suit instituted in the Court in which the plaint was first presented when returned for re-presentation to the proper Court was a continuation of the suit filed in the former Court as under:" We think there is no substance in the argument for when the plaint was retur- ned for presentation to the proper Court and was presented in that Court the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court". The Supreme Court thus rejected the submission that the re-present- ation of the plaint in the Court having jurisdiction was merely a continuation of the suit from the Court which had no jurisdiction to the Court which had jurisdiction. This decision therefore clearly approves the view of the Bombay High Court in Hirachands case (supra ). The Supreme Court thus rejected the submission that the re-present- ation of the plaint in the Court having jurisdiction was merely a continuation of the suit from the Court which had no jurisdiction to the Court which had jurisdiction. This decision therefore clearly approves the view of the Bombay High Court in Hirachands case (supra ). ( 5 ) IN view of the above I think that the learned trial Judge was justified in taking the view that the decree holder would be entitled to interest calculated from the date of re-presentation of the plaint in the Junagadh Court that is 6/04/1967 and not prior thereto. In the result therefore the Revision Application fails and is rejected. Rule is discharged with costs. (ATP) application rejected. .