Judgment :- MISHRA, J. 1. A Judgment by a learned single Judge of this court on two preliminary issues on which the defendant appellant objected to the maintainability of the suit has been challenged before us in appeal under Clause 15 of the Letters Patent of this court. The first of the two has been that the suit claim made up of three items consisting respectively of Rs. 49,106.84, 28,434.91 and 35,581.55, and making a total of Rs. 1,13,123.30 has been sought to be maintained on the original side of this court by the plaintiff, avoiding the institution of three different suit all falling beneath the pecuniary jurisdiction of this court, and the second has been that the suit made of three items aforementioned is barred by limitation. Learned single Judge, however, has made a reference to Clause 14 of the Letters Patent, which is a prescription as to joinder of several causes of action, and held on the first point as follows: “The above clause in the Letters Patent was prayed at a time when there was separate Code of Civil Procedure for the High Court. Thereafter a common Code of Civil Procedure has been evolved for all the courts and that Code of Civil Procedure as it stands now reads in its Order 2, R. 3 as follows: 3(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly and any plaintiffs having cause of action in which they are jointly interested against the same defendants jointly may unite such causes of action in the same suit. 2. Where the causes of action are united, the jurisdiction or the court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit. This statutory provision has an over-riding effect on the provisions in Clause 14 of the Letters Patent dated 28.12.1865. In fact, Clause 14 of the Letters Patent is only an enabling Clause permitting the High Court to join several causes of action in one suit. That does not in any manner dispense the High Court from observing a principle like the one embodied in O. 2, R. 3 C.P.C. It is therefore clear that the claim as it is made up of three claims forming a total of Rs. That does not in any manner dispense the High Court from observing a principle like the one embodied in O. 2, R. 3 C.P.C. It is therefore clear that the claim as it is made up of three claims forming a total of Rs. 1,13,123.30 can very well be presented before this court for being entertained. The issue is answered affirmatively.” 2. On the second objection, he has found that the defendant has raised a vague plea as to the limitation and has accordingly said: “The plaintiff has not filed its suit on the basis of any account staled between them and signed by the defendant. Its case is that the amount due between them for several transports has not been paid over fully or partially. Therefore, Art. 26 has no application to the facts of the case and it has not been shown that the suit is barred by limitation. This issue is answered in the negative.” 3. Learned counsel for the appellant has not made any serious effort to assail the finding on the question of limitation, for in terms of O. 24, R. 2 of the Code of Civil Procedure, which rule is attracted to a proceeding on the original side of the court, the court shall pronounce judgment on all issues notwithstanding that a case maybe disposed of on a preliminary issue, except where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit, postpone the settlement of the other issues until alter that issue has been determined, and may deal with the suit in accordance with the decision on that issue. The above, which has been brought into effect after Amendment Act 104 of 1976, has been introduced to avoid protracted litigations, first appeal, etc. and decision of the court on the preliminary issue and on many occasions on remand or the decision of the court reversed in appeal or trial or other issues of fact and law. The above, which has been brought into effect after Amendment Act 104 of 1976, has been introduced to avoid protracted litigations, first appeal, etc. and decision of the court on the preliminary issue and on many occasions on remand or the decision of the court reversed in appeal or trial or other issues of fact and law. An issue, both of law and of fact, however, will not fall under a rule as to the bar to the suit instituted by any law which could be determined as a preliminary issue. The question of limitation is invariably a mixed question of fact and law. The court can reject a plaint under O. 7, R. 11 of C.P.C. where it does not disclose a cause of action; where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so (this clause is substituted by High Court Amendment); and where the suit appears from the statement in the plaint to be barred by any law, which in a given situation may include a bar as to the limitation, but this has to be found only on the basis of the statements in the plaint. When such a bar is pleaded in the written statement, it is obvious certain facts are required to be traversed and unless such preliminary facts are found against the plaintiff it will not be possible to say that the suit is barred by limitation. The question of limitation on the fact situation in the instant case is undoubtedly a mixed question of fact and law. 4. The other question as to the misjoinder of the causes of action so as to bring the suit within the pecuniary jurisdiction of the court gives an impression of a question relating to the jurisdiction of the court, but we reiterate, it only gives on impression of an issue relating to the jurisdiction of the court. 4. The other question as to the misjoinder of the causes of action so as to bring the suit within the pecuniary jurisdiction of the court gives an impression of a question relating to the jurisdiction of the court, but we reiterate, it only gives on impression of an issue relating to the jurisdiction of the court. Any help from clause Act of the Letters Patent of this court is not required for deciding the issue as to the pecuniary jurisdiction of this court and the valuation of the suit as framed by the plaintiff. The language employed in this clause of the Letters Patent is: “And we do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the said High Court shall seem fit.” 4-A. It is not a provision wherein joinder of several causes of action is contemplated to amalgamate them to enhance the valuation so as to bring the case within the pecuniary jurisdiction of this court. In fact, this clause has made no reference to the pecuniary jurisdiction of the court. All that it says is, ‘High Court shall have original jurisdiction in respect of one of such causes of action’. Local limits of the ordinary original jurisdiction of the High Court are determined by the provisions in the original recitals of the Letters Patent of this court amended from time to time by the Madras High Court (Jurisdictional Limits) Amendment Act, 1927 as well as Madras High Court (Jurisdictional Limits) Amendment Act, 1947. Local limits of the ordinary original jurisdiction of the High Court are determined by the provisions in the original recitals of the Letters Patent of this court amended from time to time by the Madras High Court (Jurisdictional Limits) Amendment Act, 1927 as well as Madras High Court (Jurisdictional Limits) Amendment Act, 1947. In clause 12 of the Letters Patent, a clear mention is made of the High Court, in exercise of its ordinary original civil jurisdiction, empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property is situated, or, in all other cases, if the cause of action has arisen either wholly, or in case the leave of the court has been first obtained in part within the local limits of the ordinary original jurisdiction of the Court, or, if the defendant at the time of commencement of the suit is dwelling or is carrying on business or personally working for gain within such limits, with one exception, “that the said High Court shall not have such a original jurisdiction in cases falling within the jurisdiction the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed one hundred rupees”. 5. Clause 14 above quoted has confined itself to a suit for land or other immovable property and to all other cases brought to the High Court on the basis of the cause of action arising either wholly or in case the leave of the court has been first obtained in part within the local limits of the ordinary original jurisdiction of the Court, or the defendant at the time of the commencement of the suit has been dwelling or carrying on business or personally working for gain within such limits in matters when for one of these reasons the suit is maintainable in this court but there are some other causes of action for which otherwise a suit is not maintainable, the court can order joinder of such causes of action in the suit. It is indeed a matter of some importance that while ordaining as to the powers of the court no limitation is placed on the oasis of the value of the suit property or cause of action except in respect of suits valued upto Rs. It is indeed a matter of some importance that while ordaining as to the powers of the court no limitation is placed on the oasis of the value of the suit property or cause of action except in respect of suits valued upto Rs. 100/- or less cognizable by the court of Small Causes. 6. The power of the single Judge and Division Court and how civil and criminal procedures shall be regulated are also prescribed by the Letters Patent of the Court. Since we are concerned with the civil procedure, we may refer to Cl. 30 thereof which reads as follows:— “And we do further ordain that it shall be lawful for the said High Court of Judicature at Madras from time to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including . provided always, that the said High Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure, being an Act passed by and being Act. No. VIII of 1859, and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.” 7. In all proceedings, in civil cases on the original side, discretion is that of the court to make rules and orders, but, however, the court, it is said, shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure. S. 4 of the Code of Civil Procedure, which has recognised the existence of the hierarchy of courts in India says in S. 3 thereof: “For the purpose of this case, the District Court is subordinate to the High Court, and every civil court of a grade inferior to that of a District Court and every court of small causes is subordinate to the High Court and District Court.” And in S. 4 “savings” it says: “(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-S. (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.” The savings that are pronounced in sub-S. (1) of S. 4, C.P.C. are also reiterated in Art. 225 of the Constitution of India which reads: “Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately for the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.” 8. In effect thus the original jurisdiction of this court, as found in the Letters Patent, is not affected by the provisions in the C.P.C. for the reason of the savings as found in S. 4 thereof and the reservation by the Constitution in Art. 225 thereof. It is here that we may refer to the Madras City Civil Court Act (III of 1873). The Madras City Civil Court Act (VII of 1892) and the Madras City Civil Court and Presidency Small Cause Courts (Amendment) Act (V of 1916) as amended from time to time. S. 3 of 1892 Act has provided for the constitution of the City Court, called the Madras City Civil Court, with jurisdiction to receive, try and dispose of all suits and other proceedings of a Civil nature not exceeding two thousand five hundred rupees (amended from time to time). S. 3 of 1892 Act has provided for the constitution of the City Court, called the Madras City Civil Court, with jurisdiction to receive, try and dispose of all suits and other proceedings of a Civil nature not exceeding two thousand five hundred rupees (amended from time to time). As per S. 3-A inserted by S. 12 of the Madras City Civil Court (Amendment) Act, 1934 (Madras Act I of 1935), the last notification being issued in this behalf in the year 1980 raising the jurisdictional limit from two thousand five hundred rupees to one lakh of rupees. It is in S. 6 of the Code of Civil Procedure where we see a mention of pecuniary jurisdiction, for such a pecuniary jurisdiction is found in the very establishment of a civil court in the city. This section reads: “Save in so far, as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction”. And than S. 15, C.P.C., says: “Every suit shall be instituted in the Court of the lowest grade competent to try it.” It is pertinent to note that this Code in S. 6 says, a court of limited pecuniary jurisdiction shall not exceed its jurisdiction, it does not say that a court of unlimited jurisdiction shall have no jurisdiction to entertain a suit which is below the value of the subject matter for which no prescription is found made anywhere, except inferentially from the limit of jurisdiction of the City Civil Court, upto rupees one lakh it will be City Civil Court having jurisdiction and above that, it shall be the High Court. The rule of procedure as to the place of suing in S. 15, C.P.C. of course, may guide the court in preserving a discipline in the litigation and, the litigant may not take the liberty of electing either to file a suit in the High Court or in the City Civil Court for the reason of a provision in S. 15, C.P.C. but, it is obvious the rule as to the place or suing in C.P.C. is not applicable to the High Court in exercise of its original civil jurisdiction. 9. 9. A Full Bench of this court in the case of Ramamirtham v. Rama Film Service (AIR 1951 Madras 93 = (1951) 2 M.L.J. 121 (F.B.) has considered the question, whether S. 15. C.P.C. governs Chartered High Courts and whether in view of it all suits below Rs. 10,000/- in value (now may be read Rs. 1,00,000/- should not be instituted direct in the City Civil Court, in some details and since this question had arisen for the reason of a controversy, whether the High Court could transfer suits instituted on its original side before the Amendment Act under which the valuation was raised for the suit in the City Civil Court to rupees ten thousand the court also considered the effect of the provisions in the Presidency Small Cause Courts Act, 1882, and various provisions of the Letters Patent of this court in some details. Of the three Judges consisting the Bench two delivered separate but concurring judgments and the third agreed with both of them. Satyanarayan Rao, J. in his judgment has expounded as follows: “1. The High Court, therefore, has practically unlimited original jurisdiction except that if the debt or damage or the value of the property does not exceed Rs. 100/- and the case is one which falls within the jurisdiction of the Small Cause Court at Madras the High Court in its original jurisdiction cannot try such a suit. .. 2. The local limits of the jurisdiction of the small cause court is co-extensive with the ordinary original civil jurisdiction of the High Court. A small cause court is empowered to try all suits of a civil nature subject to the exceptions contained in S. 19 of the Act if the amount or value of the subject matter did not exceed Rs. 2000/- and further subject to the conditions regarding the cause of action and the residence of the debts, contained in cls. (a) to (c) of S. 18, S. 21 of the Act, however, gave an option to a plaintiff, when the amount or value of the subject matter of the suit exceeded Rs. 1000 to institute the suit either in the High Court on its original side or in the small cause court. In 1892 the Madras City Civil Court Act was passed by the Legislature which empowered the local Govt. 1000 to institute the suit either in the High Court on its original side or in the small cause court. In 1892 the Madras City Civil Court Act was passed by the Legislature which empowered the local Govt. by notification in the Official Gazette to establish a Court, to be called the Madras City Civil Court, with jurisdiction to receive, try and dispose of all suits and other proceedings of a Civil nature not exceeding Rs. 2500/- in value and arising within the City of Madras In 1935 the Act was amended by introducing a new section, S. 3 (already mentioned above). Appeal as against the decisions of the City Civil Court lie to the High Court and the right of appeal is conferred by S. 15 of the Act. 3. The pecuniary jurisdiction of the City Civil Court is increased by Notification under S. 3-A.” We are saved of any further exercise into the controversy for the reason of a well considered verdict wherein Satyanarayana Rao, J. has also said: “The first of the questions referred to us relates to the applicability of S. 15 C.P.C. to Chartered High Courts. In other words the question is if a suit is below rupees ten thousand in value, is the litigant bound to institute it is the City Civil Court., as the Court of the lowest grade competent to try it. S. 15 of the Code directs that every suit shall be instituted in the Court, of the lowest grade competent to try it. Under Cl. 12 of the Letters Patent, subject to one qualification, the High Court has unlimited original jurisdiction and this jurisdiction was saved under S. 16, City Civil Court Act (7 of 1892). Competency contemplated by this Section is pecuniary competency and it has been held that this Section lays down a rule of procedure and not of jurisdiction While it enjoins the institution of a suit in the Court of the lowest grade competent to try it, it does not oust the jurisdiction of the Court of a higher grade. Even if the Court of a higher grade tries and disposes of a suit which could have been instituted in a court of a lower grade, the decision rendered is not without jurisdiction and is not a nullity. It has now been decided by the Privy Council in Sabitri Thakuraln v. Savi 48 Cal. Even if the Court of a higher grade tries and disposes of a suit which could have been instituted in a court of a lower grade, the decision rendered is not without jurisdiction and is not a nullity. It has now been decided by the Privy Council in Sabitri Thakuraln v. Savi 48 Cal. 481 = AIR (8) 1921 P.C. 80 that the C.P.C. of 1908 and the rules contained in the orders apply to proceedings in the High Court, whether original or appellate, except so far as the Code expressly provided to the contrary. The question that actually arose for decision in that case was whether the provision in O. 41, R. 10, C.P.C., of 1908 applied to an appeal under Cl. 15 of the Letters Patent as this provision was not expressly excluded by the Code and it was held that an appeal under S. 15 of the Letters Patent was governed by that provision. The scheme of the Code, according to their lordships of the Judicial Committee, is to provide “Generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply. It confers a general rule making power saving only what is excepted in the body of the Code.” It would appear, therefore, that unless there is some other provision which is inconsistent with S. 15 or there is other reason for inferring that the Legislature did not intend by enacting S. 15 in the Code to affect in any manner or to any extent the original civil jurisdiction conferred on the High Court under Cl. 12 of the Letters Patent, S. 15 necessarily would apply, S. 15 occurs in the fascicule of Ss. 15 to 20 relating to place of suing. The Calcutta High Court had occasion to examine the scheme of these sections in order to determine whether S. 21 which is not expressly excluded under S. 120 applied to the original jurisdiction of the High Court. The view taken by the Calcutta High Court was that it did not. Dealing With S. 15 of the Code, Ranking, C.J. in Mahindra Chandra v. Lal Mohan 56 Cal. 949 = AIR (16) 1929 Cal. The view taken by the Calcutta High Court was that it did not. Dealing With S. 15 of the Code, Ranking, C.J. in Mahindra Chandra v. Lal Mohan 56 Cal. 949 = AIR (16) 1929 Cal. 358 observed that it had no application either in practice or in substance to the original jurisdiction of the High Court i.e., however, expressly stated that he was not considering the position of the City Civil Court in Madras or matters of that kind. The Rangoon High Court in Bank of Chettinad v. S.P.K.V.R. Firm , AIR (22) 1935 Rang. 517 = 160 I.C. 808 was also of opinion that S. 15 did not apply to the High Court, in the exercise of its original civil jurisdiction notwithstanding that it is not one of the excepted sections mentioned in S. 120 of the Code. The conclusion was based on the arrangement of the group of sections relating to place of suing most of which were expressly excluded by S. 120 as inapplicable to chartered High Courts. In my view there is much to be said in favour of the view taken by the Calcutta and Rangoon High Courts in the two decisions above referred to. The City Civil Court Act expressly saved the original civil jurisdiction of the High Court and the policy of the Legislature has been not to touch the original jurisdiction of the High Court. The scheme of the entire group of sections relating to place of suing cannot be made applicable when a self-contained provision relating to place of suing was laid down in Cl. 12 of the Letters Patent. The practice has also been so far not to apply S. 15 to the original jurisdiction of the High Court. Apart from this in my opinion proviso (1) to S. 16, Madras City Civil Court Act, is clearly inconsistent with S. 15 and does not make it obligatory on the plaintiff to choose the lowest Court of pecuniary jurisdiction to institute a suit when the conflict is between the City Civil Court and the High Court. Apart from this in my opinion proviso (1) to S. 16, Madras City Civil Court Act, is clearly inconsistent with S. 15 and does not make it obligatory on the plaintiff to choose the lowest Court of pecuniary jurisdiction to institute a suit when the conflict is between the City Civil Court and the High Court. The only disability which the proviso imposes in a case where a suit which ought to have been instituted in the City Court has been instituted in the High Court is that the successful plaintiff should be deprived of his costs and the successful defendant should be allowed his costs as between attorney and client. It must be remembered that O. 7 R. 10 was not made applicable to the chartered High Courts and if a plaint which ought to have been filed in a Court of lower pecuniary jurisdiction is in fact filed in the higher Court., viz., the High Court, the High Court cannot return the plaint and in such a case the High Court has the option of following one of two courses, provided in the first proviso to S. 16 or to transfer the suit under proviso 2 to the said section. Proviso (1) recognises the right of the litigant to institute a suit which ought to have been filed in the City Civil Court even in the High Court and there is no mandatory provision like S. 15 in the City Civil Court Act enjoining upon him the duty of resorting to the Court of lowest pecuniary jurisdiction. The proviso (1) to S. 16, in my opinion, clearly negatives the applicability of S. 15 when the City Civil Court happens to be the Court of the lowest grade competent to try the suit. It was also argued with some force that the gradation contemplated by S. 15 is only the gradation or subordination of courts provided in S. 3 of the Code, S. 3 says that for the purposes this Code, the District Court is subordinate to the High Court. Every civil Court of a grade inferior to that of a District Court and every Court of small causes is subordinate to the High Court and District Court. Every civil Court of a grade inferior to that of a District Court and every Court of small causes is subordinate to the High Court and District Court. It follows that in the gradation of Courts contemplated by the Madras Civil Courts Act, i.e., the Munsif, Court., the Sub Court, the District Court and the High Court and Small Causes Courts there are two kinds of gradation. One is the gradation beginning with the District Court and ending with the District Munsifs Court so far as the institution of the suits is concerned and the High Court and the Small Causes and Court constituted another kind of gradation. At the head of all, no doubt, is the High Court but in the chain of gradation of Courts, the City Civil Court does not come in and it is possible to assume that for the purpose of the Code, the gradation contemplated is the gradation referred to in S. 3. In this view S. 15 would apply only when there is necessity to choose the forum in the gradation pf Courts referred to in S. 3. The lowest Court of pecuniary jurisdiction must be the Court in which the suit should be instituted. But S. 3 speaks only of subordination of Courts and defines it whereas S. 15 speaks of the Court of the lowest grade competent to try and competency in this section can only mean pecuniary competency. If this view of the section is right, it follows that when there are two Courts of different pecuniary Jurisdiction like the City Civil Court and the High Court exercising original civil jurisdiction, there is no reason for not treating the City Civil Court as the Court of the lower grade if the value of the suit is within the pecuniary jurisdiction of that Court. It is, therefore, difficult to restrict the meaning of S. 15 in the manner contended. But, for the reason, I have already given, I am definitely of opinion that S. 15 has no application to the High Courts exercising ordinary original jurisdiction when there is a conflict between the original jurisdiction of the High Court and City Civil Courts Act. It is, therefore, difficult to restrict the meaning of S. 15 in the manner contended. But, for the reason, I have already given, I am definitely of opinion that S. 15 has no application to the High Courts exercising ordinary original jurisdiction when there is a conflict between the original jurisdiction of the High Court and City Civil Courts Act. The answer, therefore, to the first question referred must, in my opinion, be in the negative.” Viswanatha Sastri, J. who has delivered a separate Judgment, has started by saying: “There are three Courts of different grades having original civil jurisdiction within the City of Madras, namely, the High Court of Madras, the Madras City Civil Court and the Presidency Small Causes Court. The classes of suits triable by these Courts and the minimum and maximum limits of their pecuniary jurisdiction vary.” And then proceeded to examine the relevant provisions to finally say as follows: “The object of S. 15 C.P.C. is to prevent superior Courts being flooded or overcrowded with suits triable by Courts of inferior grade. The Section merely regulates procedure and not jurisdiction. It does not deprive Courts of superior pecuniary grade of their jurisdiction to try suits which should ordinarily be tried by Courts of inferior grades. Ss. 12 and 13 Madras Civil Courts Act (III of 1873) do not fix the lower limit of the pecuniary jurisdiction of District Munsifs, Subordinate Judges and District Judges. S. 6, C.P.C. merely deprives a Court of an inferior grades of jurisdiction to try a suit the subject matter of which exceeds the pecuniary limit of its jurisdiction, this limit being imposed under the Madras Civil Courts Act and the Madras City Civil Courts Act. S. 15 itself recognises that courts of more than one grade would have jurisdiction to try a suit by the use of the expression “court of the lowest grade” which would have no meaning if only one court had exclusive jurisdiction to try the suit. Consequently it has been held that a court of a superior grade does not act without jurisdiction in trying a suit which, under S. 16 might and ought by reason of its valuation, to have been tried by an inferior court. .. I am aware that it has been authoritatively decided by the Judicial Committee in Sabitri Thakurain v. Savi 48 Cal. .. I am aware that it has been authoritatively decided by the Judicial Committee in Sabitri Thakurain v. Savi 48 Cal. 481 = AIR (8) 1921 P.C. 80 that the C.P.C. applies to proceedings on the original side of the High Court save and so far as the C.P.C. or the Original Side Rules of the High Court expressly provide the contrary and that there is nothing in the original side rules expressly excluding the operation of S. 15, C.P.C. to suits on the original side of the High Court. It is also true that the C.P.C. is a consolidating enactment intended to be of wide and general application. All the same, can it be said that the general language of S. 15, C.P.C. has by implication repealed the special provisions of the Letters Patent, the provisions of the Presidency Towns Small Causes Courts Act and the Madras City Civil Court (Act 7) already referred to? It is a question of construction whether S. 16 C.P.C. has by necessary implication taken away a right of procedure provided for by these special enactments by substituting another procedure or left the procedure sanctioned by the special enactments unaffected. If there was an intention on the part of the Legislature to repeal the special enactments by enacting S. 15, C.P.C. it could have been declared in express terms. No palpable absurdity results if both the provisions co-exist and there is no compelling reason why S. 15 C.P.C. should not be interpreted as applying to cases and Courts not dealt with by the special enactments. If S. 15, C.P.C. were held to apply to suits on the original side, it would pro tanto deprive the parties interested of their right to have their suits instituted and heard on the original side in the exercise of the jurisdiction conferred on the High Court by clause 12 of the Letters Patent. Where power is given to a suitor to take proceedings in different courts, he has a choice of the forum and his remedy is also subject to the lax fori. A suitor has a longer period of limitation for the institution of summary suits and the execution of decrees and a more expeditious remedy in some suits, if he were allowed to sue on the original side of this Court, than he would have if the suit were instituted by the City Civil Court. A suitor has a longer period of limitation for the institution of summary suits and the execution of decrees and a more expeditious remedy in some suits, if he were allowed to sue on the original side of this Court, than he would have if the suit were instituted by the City Civil Court. Unless the Court is driven to adopt such a construction, a repeal by implication of the special provisions conferring jurisdiction on the original side of the High Court and a choice of forum on the suitor, is not to be assumed. The omission of a reference to S. 15 in S. 120, C.P.C. which excludes Ss. 16, 17 and 20 from application to the original side of the High Court is not a sufficient ground implying that all the other provisions not so expressly excluded by S. 120 must be held to apply to suits on the original side. It seems to me that the only reasonable construction is to hold that S. 15, C.P.C. as well as clause 12 of the Letters Patent stand together, the subject matter of Clause 12 of the Letters Patent not being dealt with S. 15 C.P.C. It may be observed that the language of S. 15, C.P.C. of 1882 was the same as that of S. 15, C.P.C. of 1908. During all these years this court as well as the other High Courts have consistently taken the view that S. 15, C.P.C. does not govern suits on the original side of the High Court and does not override the provisions of the Letters Patent and the Presidency Towns Small Cause Courts Act and the Madras Civil Court Act. I recoil from overruling a construction of statutory provisions so long and so invariably acted upon by the Courts for over half a century, a construction which presumably reflected the intention of the Legislature and was therefore left unaffected by any amendment of the law. Having regard to the provisions of Clauses 11 and 12 of the Letters Patent, S. 16 Madras City Civil Court Act Ss. 21, 22 and 39 Presidency Towns Small Cause Courts Act. I am constrained to hold S. 15, C.P.C. does not fit into this scheme of legislation and is therefore inapplicable to suits filed on the original side of the High Court. This is my answer to the first of the questions referred to us”. 21, 22 and 39 Presidency Towns Small Cause Courts Act. I am constrained to hold S. 15, C.P.C. does not fit into this scheme of legislation and is therefore inapplicable to suits filed on the original side of the High Court. This is my answer to the first of the questions referred to us”. 10. The ratio of the judgment of the Full Bench, thus, is the same, as we have found earlier on our reading of the provisions in this behalf in the Letters Patent, the Madras City Civil Court Act as well as the Madras Presidency Small Cause Courts Act (as amended from time to time) that the High Courts original side jurisdiction subject to conditions under Clause 12 is unlimited, the lower limit being suits of valuation of Rs. One hundred within the jurisdiction of the Madras Presidency Town Small Cause Court, concurrent, in so far as the jurisdiction of the said Court above Rs. 100/- and of the City Civil Court is concerned and exclusive in respect of the suits valued above Rs. 1 lakh. S. 15 C.P.C. does not fit into the scheme of legislation so that it may be applied to exclude suits which ordinarily should be filed in the City Civil Court. Special jurisdiction of the High Court is not affected for the reason of the City Civil Courts jurisdiction in respect of suits of valuation below Rs. 1 lakh. Above aside, the lack of pecuniary jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction. This aspect of the law has been elaborately dealt with in a Full Bench judgment of the Patna High Court in the case of S.A. Sahay v. Shanpati Kuer AIR 1960 Patna 245 in which it is emphasized that a distinction must be drawn between cases where there is an inherent lack of jurisdiction, apparent on the face of records and cases where it is doubtful or atleast not so apparent whether the Court possesses jurisdiction or not. Where there is total lack of jurisdiction nothing can confer the same on the Court and an objection to jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceedings of the court from the very initial stage is without jurisdiction and void. Where there is total lack of jurisdiction nothing can confer the same on the Court and an objection to jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceedings of the court from the very initial stage is without jurisdiction and void. Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint if not challenged, manifestly bring the case within the jurisdiction of the Court, in which it is filed, its proceedings are perfectly with jurisdiction and want of jurisdiction in such case can rightly be waived. In other words, this kind of defect in jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction. After making reference to S. 11 of the Suit Valuation Act. The Patna Full Bench said, the lack of pecuniary jurisdiction comes under the latter of the two kinds of defects as it shows clearly that there is no apparent, defect in the frame of a suit due to low valuation and it does not take away the inherent jurisdiction of the Court to entertain it. A dispute as to jurisdiction to try non contentious cases by a Notification under S. 265 of the Succession Act in Subordinate Courts, came for interpretation for the reason of difference of opinion between the learned Judges constituting different Benches before a Full Bench in the case of Subbarayalu Reddiar v. Rengammal 1962 (II) MLJ 318 . When it was urged that since such cases were to be tried by the Subordinate Judges only and District Judges cease to have jurisdiction who otherwise were competent to try contentious applications for probate, etc., the Full Bench observed. “Vesting of authority in a Subordinate Judge to entertain and dispose of contentious applications for probate etc. under S. 29(1) of the Madras Civil Courts Act cannot take away the jurisdiction of the District Judge over such matters. The result is that both the Subordinate Judge and the District Judge will have concurrent jurisdiction to take cognizance of contentious applications for probate, etc.” relating to matters arising within the jurisdiction of the former. under S. 29(1) of the Madras Civil Courts Act cannot take away the jurisdiction of the District Judge over such matters. The result is that both the Subordinate Judge and the District Judge will have concurrent jurisdiction to take cognizance of contentious applications for probate, etc.” relating to matters arising within the jurisdiction of the former. Under S. 15 of the Civil Procedure C ode where more than one court has a jurisdiction over the matter, the case should be instituted only in the Court of the lower grade competent to try it. The Sub Court being a Court lower to the District Court in the hierarchy of Courts the application for grant of probate or letters of administration will have to be instituted only in that court. But this is only a rule of procedure. Therefore S. 15 of the Civil Procedure Code does not deprive the District Court of its jurisdiction. As observed by Pertharam, C.J. in Nidhi Lal v. Muzar Hussain ILR 7. All. 230. “The word “shall” is in my opinion imperative on the suitors. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits The proviso is for the benefit of the Court of the higher grade and it is not bound to take advantage of it. If it does not wish to try the suit it may refuse to entertain it. If it wishes to retain the suit in its Court it may do so. It is not bound to refuse to entertain it.” These observations were made with reference to a provision the Civil Procedure Code of 1882 (S. 15) corresponding to S. 15 of the Civil Procedure Code of 1908”. The above observations, thus, take us to the conclusion:— the objection as to the jurisdiction to try the suit on the ground that its value was raised by misjoinder of causes of action, is misconceived to the extent that unless shown to be less than Rs. 100/- falling within the jurisdiction of Small Cause Court the High Courts original jurisdiction would extend to suits of every variety, if conditions under Clause 12 of the Letters Patent are satisfied. 100/- falling within the jurisdiction of Small Cause Court the High Courts original jurisdiction would extend to suits of every variety, if conditions under Clause 12 of the Letters Patent are satisfied. Since S. 15 of the Code of Civil Procedure is not applied to the original jurisdiction of the High Court and there is no other provision to which any recourse can be had for the purpose of compelling the plaintiff/respondent to institute the suit in the court of the lowest grade competent to try it, we hold on the basis of the afore-mentioned authority of the Full Bench of this Court and the principle that lack of pecuniary jurisdiction is only an irregularity and not a total lack of jurisdiction, the suit even if it is valid less than Rs. 1 lakh, is not incompetent on the original side of the Court. 11. A question however, shall always be posed, will it be wrong, once it is found that S. 15, C.P.C. has no application to the proceedings in this Court, to say that a suit which is beyond the pecuniary jurisdiction of the Small Cause Court, but within the jurisdiction of the City Civil Court, can be filed with immunity at the choice of the litigant either in the High Court or in the City Civil Court. This naturally has taken us to the second question that the Full Bench in the case of Ramamirtham v. Rama Film Service AIR 1951 Madras 93 = (1951) 2 M.L.J. 121 (F.B.) has answered. The second question had arisen in the said case for the reason of the enhancement introduced by an amendment in the Madras City Civil Court Act in the pecuniary jurisdiction of the City Civil Court. The question posed before the court was whether the City Civil Court is competent to try or dispose of the suit filed in the High Court below Rs. 10,000/- in value, which was instituted prior to the enhancement of its jurisdiction from Rs. 8,000/- to Rs. The question posed before the court was whether the City Civil Court is competent to try or dispose of the suit filed in the High Court below Rs. 10,000/- in value, which was instituted prior to the enhancement of its jurisdiction from Rs. 8,000/- to Rs. 10,000/- if so, can suit be transferred either under S. 16 Proviso (2) Madras City Civil Court Act or under S. 24(1) Civil P.C. This S. 16 of the City Civil Court Act, we quote in extenso, because its language also lends support to the view of ours that for the reason of the valuation of the suit falling within the pecuniary jurisdiction of the City Civil Court, the original civil jurisdiction of the High Court is not ousted. S. 16 reads as follows: “16. Nothing in this Act, contained shall affect the original civil jurisdiction of the High Court provided that (1) If any suit or other proceeding is instituted in the High Court which, in the opinion of the Judge who tries the same (whose opinion shall be final) ought to have been instituted in the City Court, no costs shall be allowed to successful plaintiff and a successful defendant shall be allowed his costs as between attorney and client; (2) In any suit or other proceeding pending at any time in the High Court any Judge of such Court may at any stage thereof make an order transferring the same to the City Court, if in his opinion such suit or proceedings within the jurisdiction of that Court and should be tried therein; (3) In any suit or other proceeding so transferred, the Court fees Act, 1870 shall apply, credit being given for any fees levied in the High Court.” Satyanarayana Rao, J. in his judgment (1951-2-M.L.J. 121 at 127) on his has said: Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. ace="Times" This extract is taken from Food Corporation of India v. Mayavaram Financial Syndicate, (1993) 2 LW 453 , at page 463 : “Under the second proviso to S. 16 the High Court is empowered to transfer a suit or proceeding pending at any time and at any stage if in the opinion of the Court such suit or proceeding is within the jurisdiction of that Court and should be tried therein. Under this proviso, therefore, when the High Court wishes to exercise the jurisdiction to transfer all that it has to see is whether on the date of the proposed transfer the suit or proceeding is or is not within the jurisdiction of the City Civil Co urt, and unlike the language in the first proviso, the ground of the transfer under the second proviso is not that the suit ought to have been instituted in the City Civil Court, but was wrongly instituted in the High Court. The power of transfer is on the ground that in the opinion of the Judge, the suit or proceeding is at the moment of transfer, within the jurisdiction of that Court. It follows, therefore, that even at the date of the institution of the suit in the High Court the City Civil Court had no pecuniary jurisdiction to try the suit but as subsequently by the notification the jurisdiction is increased to Rs. 10,000/- so as to bring the particular suit within the jurisdiction of the City Civil Court the High Court has in my opinion, an undoubted power to transfer the suit to the City Civil Court. In my opinion, the use of the language suit or proceeding is within the jurisdiction of the Court by the Legislature is deliberate and is intended to enable a High Court to transfer suits if the City Civil Court, by the date of such transfer acquired pecuniary jurisdiction to try such suit or proceeding. Even if the meaning of the expression ‘arising’ in S. 3A of the Act and in the notification is to be understood as indicative of suits instituted after the said date, that would not in my view prevent the High Court from exercising the power of transfer under the second proviso.” When it was argued before the Full Bench that if such a power of transfer is recognised the litigant in the suit would be deprived of the valuable right to institute suits contemplated by O. 7 of the Original Side Rules, Satyanarayana Rao, J. in his Judgment in the Full Bench (See 1951-2- M.L.J. 121 at 128) said: “There is no doubt a difference between suits under the summary procedure under Order 37, C.P.C. and O. 7 Original Side Rule, both regarding the period of limitation and also the nature and the class or suits that could be instituted. If a suit under O. 7 Original Side Rules or the value below Rs. 10,000/- was instituted on the original side of the High Court taking advantage of the favourable provisions under O. 7 it would not be competent for the High Court to transfer it so the City Civil Court as the second proviso to S. 16 empowers the court to transfer the suit or proceeding only if the suit or proceeding is within the jurisdiction of that Court. A suit which is triable as one under-Chapter suit under O. 7 Original Side Rules, cannot be tried by the City Civil Court as an under-Chapter suit under a summary procedure under O. 37 having regard to the difference in the subject matter of the two suits. I do not think, therefore that a Judge in making an order of transfer under the Second proviso to S. 16, would overlook these considerations and transfer the suit automatically to the City Civil Court. The Judge has to be satisfied before making an order of transfer, that in his opinion the suit or proceeding is within the jurisdiction of the City Civil Court and that it could be tried by that Court. I do not think, therefore that this difficulty pointed out in the course of the arguments really affects the power of transfer recognised under the second proviso. Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. This extract is taken from Food Corporation of India v. Mayavaram Financial Syndicate, (1993) 2 LW 453 , at page 463 : The third proviso to S. 16 provides for the levy of the court fees under the Court Fees Act after giving credit to fee already paid where a proceeding is transferred in to the City Civil Court. There can, therefore, be no hardship if a suit is transferred to the City Civil Court as the party gets credit to what he had already paid on the original side of the High Court us Court fees and would be called upon to pay only the difference”. There can, therefore, be no hardship if a suit is transferred to the City Civil Court as the party gets credit to what he had already paid on the original side of the High Court us Court fees and would be called upon to pay only the difference”. Viswanatha Sastri, J. in his concurring judgment in the Full Bench (1951-2-M.L.J. 121 at 134) on this has said: “A valid transfer of a suit or other proceeding can be made from one court to another only if the Court which transfers the suit or proceeding, had initially the jurisdiction to entertain it and the court to which the suit or proceeding is transferred, has jurisdiction under the law to try and dispose of the suit or proceeding.” And proceeded to say after examining all relevant provisions: “I am of the opinion that the competency of the transferee court to use a compendious expression must be judged with reference to the State of things as they exist on the date when the suit or other proceeding is transferred.” And finally [See page 137]: “The transfer of suits can legally be made either under S. 16 proviso (2) Madras City Civil Court Act, or under S. 24(1) C.P.C.” 12. On the parity of reasoning, thus, when it was brought to the notice of the learned single Judge that a suit has been brought before this Court by a combination of causes of action which otherwise were different and distinct and the City Civil Court had the pecuniary jurisdiction to entertain the suits, all that the court could do was to order transfer of the suit from the original side of this court to the City Civil Court. This can be done at the presentation of the plaint before notice or after the defendant appears and files objection. It is one thing that the Court shall have jurisdiction notwithstanding S. 15 of the C.P.C. and civil courts in the City are competent to entertain suits. It is another to ask the litigant to observe the rule of suing the lowest court competent to try the suit. Litigants may not be given the option to select their court. This court instead of proceeding in a suit of valuation below Rs. 1 lakh may ask the litigant to go to the Court of First Instance. That is what this Court does. That is what propriety demands. Litigants may not be given the option to select their court. This court instead of proceeding in a suit of valuation below Rs. 1 lakh may ask the litigant to go to the Court of First Instance. That is what this Court does. That is what propriety demands. If we say so with respect the whole thing got confused before the learned single Judge for the reason that joinder of several causes of action for the above purposes was mixed up with the power, which the court has been given under Clause 14 of the Letters Patent. Clause 14 has already been quoted by us and we have recorded our opinion on it. No party had asked for joinder of several causes of action with a competent cause of action on the original civil side of the Court. The defendants objection was that in the suit, the plaintiff/respondent has brought in three actions based on three items of claims viz. Amount 1. Deductions made in respect of Contracts covering items (i) and (ii) viz, transport of goods from Tiruchy rail head to destinations within a radius of 101 Kms. and transport of goods bevond riadius of 100 Kms. but below 200 Kms. Rs. 49,106.84 2. Transport of foodgrains from Coimbatore, Udumalnet, and Tirupur to places within old and New Port of Tulirorin (item (iii) above Rs. 28,434.91 3. Transport of Fertilisers from Tuticorin Port to places beyond 300 Kms. (item No. (iv) above Rs. 35,581.55 Total Rs. 1,13,123-30 According to the defendant/appellant, these three were joined only for the purpose of bringing the suit within the pecuniary jurisdiction of the Court, i.e. above Rs. 1 lakh. Apart from what has been noticed by us above as to the original jurisdiction of the Court under Clause 12 of the Letters Patent, when we advert to the facts stated in the plaint, we find it difficult to accept that a common suit for the three claims aforementioned has been filed on account of misjoinder of causes of action. He is well settled that cause of action is a fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court in other words, it is a bundle of facts which taken with the law applicable to them, gives the plaintiffs a right to relief against the defendant. A Full Bench of this Court in Lakshmi Narayana Chettiar, In re (1954 (1) M.L.J. 408) has defined cause of action as a fact which it traversed, would be necessary for the plaintiff to prove in order to entitle him to a judgment of the Court. The Supreme Court in the case at State of Rajasthan v. Swaika Properties AIR 1985 SC 1289 has defined cause of action to mean, every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court and added, in other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendants. A Division Bench of this Court of which one of us is a Member in the case of K. Murugesan v. Seethalakshmi 1992 (1) L.W. 277 has said. “There can be hardly any dispute to such a wise approach to understand the expression ‘cause of action’ and we see no reason to deviate.” We respectfully adopt the same and add, it is only a material fact, which must be proved by the plaintiff and thus, it is only material facts that constitute the cause of action. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as res gestae, would not necessarily constitute a part of the cause of action. A distinction between facts which are relevant and material and those that are incidental and material is some times not easy to be drawn, but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it. A distinction between facts which are relevant and material and those that are incidental and material is some times not easy to be drawn, but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it. The instant case, however, is one in which in course of the various transactions, when the claims of the plaintiff were crystallized into the three items aforementioned according to the plaint, on the continued representation of the plaintiff, the defendants Regional Manager after more than a year, issued another order on 7.1.1982 instructing the District Manager, Food Corporation of India, Tuticorin, to refund to the plaintiff the amount realised by way of disposal of the stock of 87 bags of rice under dispute and the District Manager, Food Corporation of India, Tuticorin, informed the plaintiff on 22.4.1982 that whatever amount is refundable to the plaintiff in this connection, will be adjusted against the dues recoverable from the plaintiff in the work of transport of fertilizer from Tuticorin concerning the 4th contract. According to the plaintiff, no amount is due from the plaintiff to the defendant in the fertilizer movement and thus, the plaintiff approached the Zonal Manager, but the plaintiff has not received any order for or against from the Zonal Manager so far inspite of repeated reminder letters and so, the plaintiff is seeking remedy in the Honourable Court for the recovery of the amount from the defendant. 13. The other item of work, i.e. to say, the fourth item of work has also been stated and it is said, the plaintiff is entitled to recover the lawful sums due from the defendant in respect of the four items of work performed by the plaintiff and the withholding of a total sum of Rs. 1,13,123-30 by the defendant is illegal and without any justification. The plaintiff has said that it has been trying to get back its money by all possible lawful means and as there was no response from the defendant, the plaintiff issued a notice through its counsel on 4.10.1983 and no reply has so far been received to that notice. We see thus that the parties had several transactions and in these finally, according to the plaint, the three aforementioned items remain unsettled, for which the plaintiff has filed the suit. We see thus that the parties had several transactions and in these finally, according to the plaint, the three aforementioned items remain unsettled, for which the plaintiff has filed the suit. It is a case in our opinion, in which there is hardly any scope to argue that there has been misjoinder of cause of action. 14. For the reasons aforementioned, we find no merit in the appeal. The appeal is dismissed with costs. Hearing fees Rs. 1,000/- (Rupees One thousand only)