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2000 DIGILAW 231 (HP)

HANS RAJ v. PARKASH CHAND

2000-09-01

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.—The plaintiffs have filed this suit for declaration that the judgment and decree passed by this Court on September 24, 1993 in Regular Second Appeal No. 175 of 1989, Parkash Chand and others v. Hans Raj and others, having been obtained by fraud and mis-representation, is illegal, null and void and, therefore, not binding on the plaintiffs with a consequential relief of injunction restraining the defendants No. 1 to 5 from implementing or derieving any benefit arising out of the impugned judgment and decree of this Court, noticed above. 2. The suit, from which R.S.A. No. 175 of 1989 arose, was filed before the learned Sub Judge 1st Class, Kullu in October, 1977. In this suit, plaintiffs prayed for possession of the premises fully described in para 1 of the plaint. It is the case of the plaintiffs that Shri Ram Dass Goel, predecessor-in-interest of defendants No. 1 to 5 and uncle of the plaintiffs, was posted as Teacher in the Government Middle School, Bhuntar. He approached the plaintiffs to allow him and his family members to occupy, temporarily, part of the premises in dispute as he did not have any accommodation to live at Bhuntar. Plaintiffs, out of respect and compassion for Shri Ram Dass, allowed him to use two rooms and two verandahs with attic in the upper storey as licensee. However, no licence fee was charged because of the close relationship. In the year 1955-56, Shri Ram Dass Goel again asked for permission to use and occupy the premises in the ground floor. Permission was granted again, on compassion as mother of defendants No. 1 to 5 was to deliver child. Shri Ram Dass Goel died in 1972 and after his death, defendants No. 1 to 5 approached the plaintiffs to permit them to use and occupy the premises for some time more. The request was allowed with the stipulation that licence is revokable and can be cancelled at any time. No licence fee was charged from the defendants for the use and occupation of the disputed premises. 3. It is the further case of the plaintiffs that defendants in the year 1977 dismantled certain wooden planks partition between the room and verandah. The defendants were asked to explain the high-handedness. No licence fee was charged from the defendants for the use and occupation of the disputed premises. 3. It is the further case of the plaintiffs that defendants in the year 1977 dismantled certain wooden planks partition between the room and verandah. The defendants were asked to explain the high-handedness. The defendants, on such explanation being asked, threatened that they would not vacate the premises and plaintiffs be at liberty to do whatever they could. Plaintiffs issued notice to the defendants but defendants started making extensive alterations in the premises in dispute. The licence of the defendants was revoked on October 10, 1977 but the defendants did not vacate the premises. The defendants also tried to change the user of the premises from residential to commercial. 4. Plaintiffs filed a suit against the defendants for possession of the property in dispute and permanent injunction restraining the defendants from making any alterations etc., and from alienating the suit property in any manner. The plaintiffs also claimed damages for the use and occupation of the premises at the rate of rupees 300 per month. This suit (Civil Suit No. 63 of 1977) was decreed by learned Sub Judge 1st Class, Kullu vide his judgment dated March 5, 1985. Defendants appeal before the District Judge (Civil Appeal No. 126/86-139 of 2988) was dismissed and the cross-objections of the plaintiff allowed. The plaintiffs were held to be to future mesne profits at the rate of rupees per month from October 24, 1977 onwards. The defendants filed second appeal before this Court (RSA No. 175 of 1989). This second appeal was allowed and suit of the plaintiffs was dismissed. Feeling aggrieved, plaintiffs filed Special Leave Petition before the Supreme Court which too was dismissed. A review petition of the plaintiffs did not find favour. 5. This Court, in its decree held that the parties were co-sharers and the defendants No. 1 to 5 are entitled to l/3rd share in the property and suit for recovery of possession was not maintainable. 6. The present suit has been filed on the ground that important document tendered by the defendants in evidence was in Urdu and the transliteration filed in the Court, by the defendants, was incorrect in material particulars. 6. The present suit has been filed on the ground that important document tendered by the defendants in evidence was in Urdu and the transliteration filed in the Court, by the defendants, was incorrect in material particulars. Wrong translation, it is maintained, was furnished to conceal the true contents of the documents from the Court and to mislead and induce the Court to accept the appeal of the defendants. This transliteration of the document was filed by the contesting defendants after the arguments had been concluded and, therefore, the plaintiffs and their counsel were deprived of an opportunity to bring to the notice of the Court the mischief and fraud played by the contesting defendants. Plaintiffs plead that the judgment and decree dated September 24, 1993 passed by this Court in R.S.A. No. 175 of 1989 resultantly is void and not binding on the plaintiffs. 7. It is with these allegations that plaintiffs pray for declaration that the judgment and decree of this Court dated 24.9.1993 in R.S.A. No. 175 of 1989 is null and void having been obtained by exercise of fraud and misrepresentation and, therefore, not binding on the plaintiffs with a further relief of injunction restraining the contesting defendants from implementing or taking any benefit or advantage from the impugned judgment and decree of this Court. 8. The contesting defendants resist the suit. Allegations are controverted. It is pleaded that the present suit is barred by the principles of res-judicata on merits, it is denied that Shri Ram Dass Goel, father of defendants No. 1 to 5, occupied the disputed premises as licensee. According to the contesting defendants, Shri Ram Dass occupied the house, which was the joint property of three brothers, namely, Ram Rattan, Ram Dass and Durga Dass, of his own right. The allegation of fraud and misrepresentation is refuted. It is the case of the defendants that arguments in the case were concluded on June 29,1993 and counsel for the defendants was directed to file hindi transliteration of Ext. D4 which was correctly filed. Ext. D4 is in persian script and was read out 2/3 times by the counsel for the plaintiffs. It is pleaded that before filing the transliteration of Exhibit D4, advance copy was supplied to the counsel for the plaintiffs through his clerk. The impugned judgment and decree of this Court, it is pleaded has been up-held by the Apex Court. Ext. D4 is in persian script and was read out 2/3 times by the counsel for the plaintiffs. It is pleaded that before filing the transliteration of Exhibit D4, advance copy was supplied to the counsel for the plaintiffs through his clerk. The impugned judgment and decree of this Court, it is pleaded has been up-held by the Apex Court. 9. Defendant No. 6 Sh. H.K. Bhardwaj, Advocate, has filed separate reply. It may be noticed that Shri Bhardwaj was one of the counsel for the defendants in R.S.A. No. 175 of 1989. According to Shri Bhardwaj, the arguments in the case were concluded on June 29, 1993 and the counsel for the defendants were directed to file the transliteration of Ext. D4. Shri Chhabil Dass, learned counsel for the plaintiffs, addressed the arguments on behalf of the plaintiffs. Shri Bhardwaj states that Shri R.S. Mittal and Shri Chhabil Dass read Ext. D4 two or three times each and did explain the document to the Court and the Court was convinced about the date mentioned below the names of Shri Ram Dass Goel and Durga Dass, i.e., June 4,1938 and true transliteration, in Devnagri script of the document was filed by the defendants. Shri Bhardwaj in his written statement expresses his consternation for having been impleaded as defendant against the legal ethics. He also states that copy of the transliteration was supplied to Shri Jagan Nath, Clerk of late Shri Chhabil Dass in the Bar Room and that allegations made against him are irresponsible, totally baseless and without any foundation. 10. On the pleadings of the parties, the following issues were settled: 1. Whether the judgment and decree dated 24.9.1993 was obtained by fraud and mis-representation as alleged? If so, to what effect? OPD. 2. If issue No. 1 is decided in affirmative, what is the effect of the judgment of the Supreme Court? OPD. 3. Whether this court has the pecuniary jurisdiction to try the present suit? OPP. 4. Whether the plaintiffs are entitled to damages? If so, to what extent and from whom ? OPP. 5. Whether the suit is barred under principle of res-judicata? OPD. 6. Whether the suit is bad for non-joinder of necessary parties? If so, who are such necessary parties? OPD. 7. Whether the suit is bad for mis-joinder of parties as alleged? OPD. 8. Relief. 11. If so, to what extent and from whom ? OPP. 5. Whether the suit is barred under principle of res-judicata? OPD. 6. Whether the suit is bad for non-joinder of necessary parties? If so, who are such necessary parties? OPD. 7. Whether the suit is bad for mis-joinder of parties as alleged? OPD. 8. Relief. 11. Issue No. 3 relates to the jurisdiction of this Court to try the suit and, therefore, has been taken first. 12. I have heard Shri Bhupinder Gupta, learned Senior Counsel for the plaintiffs and Shri R.S. Mittal, learned Senior Counsel for the defendants No. 1 to 5 and gone through the record. 13. The present suit is valued at rupees 6 lakhs for the purpose of jurisdiction. For the purpose of court fees, it has been valued at rupees 200 for the declaration at rupees 130 for the relief of injunction and for the purposes of damages, the value is fixed at Rs. 5,000. Relevant para 18 of the plaint reads: "That the value of the suit for the purpose of court jurisdiction is fixed at Rs. 6 lacs and with respect to declaration is Rs. 200 and for injunction is fixed at Rs. 130. The plaintiff is paying court fee of Rs. 20 for declaration and Rs. 13 for injunction. The value of the suit for the purpose of damages is also fixed at Rs. 5,000 and a court fee of Rs. 638 is being affixed." 14. The defendants in their written statement, in reply to para 18 of the plaint state : The averments made in para 18 of the plaint are also baseless and are denied. The court fee has not been properly fixed and upon the valuation upon which court fee has been affixed, this Honble Court has got no pecuniary jurisdiction to try the suit.” 15. Section 8 of the Suits Valuation Act, 1887, stipulates that in the suits, other than those referred to under Section 7, paragraph (v) and (vi), paragraph (ix) and paragraph (x), Cl. (d) where court fees are payable ad valorem under the Court Fees Act, 1870, the value for the purposes of jurisdiction shall be the same as determinable for the purposes of Court fees. (d) where court fees are payable ad valorem under the Court Fees Act, 1870, the value for the purposes of jurisdiction shall be the same as determinable for the purposes of Court fees. By an amendment (H.P. Act No. 30 of 1969), in its application to the State of Himachal Pradesh, in Section 8, for the words "The H.P. Court Fees Act, 1870", the words "The H.P. Court Fees Act, 1968" are to be substituted. Section 8 of the Suits Valuation Act, in its application to State of Himachal Pradesh would read: "8. Where in suits other than those referred to in the H.P. Court Fees Act, 1968, Section 7, paragraphs v, vi and ix and paragraph x, clause (d) Court fees are payable ad valorem under the H.P. Court Fees Act, 1968, the value as determinable for the computation of Court-fees and the value for purposes of jurisdiction shall be the same." 16. Section 7 paragraph (iv) of the H.P. Court Fees Act may be reproduced for convenience : Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (i) ......................... (ii) ........................ (iii) ......................... Section 7 paragraph (iv) of the H.P. Court Fees Act may be reproduced for convenience : Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (i) ......................... (ii) ........................ (iii) ......................... (iv) In suits— (a) for movable property of no market value for movable property where the subject-matter has no market value, as, for instance, in the case of documents relating to title; (b) to enforce a right to share in joint family property to enforce the right to share in any property on the ground that it is joint family property; (c) for a declaratory decree and consequential relief to obtain a declaratory decree or order, where consequential relief is prayed; (d) for an injunction to obtain an injunction; (e) for easements for a right to some benefit (not herein otherwise provided for) to arise out of land; and (f) for accounts-for accounts; according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which values the relief sought : Provided that the minimum court-fee in each case shall be thirteen rupees : Provided further that in suit coming under sub-clause (c), in cases where the relief sought is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section. (v) *” 17. Now, Section 7(iv) o^ the H.P. Court Fees Act, 1968 provides for the amount of fees payable, in suits for declaratory decree and consequential relief to obtain a declaratory decree or where consequential relief is prayed according to the amount at which the relief sought is valued in the plaint. In all such suits, the plaintiff, in his discretion, is to state the amount to which he values the relief sought subject to the condition that minimum court fees in each case shall be rupees 13. 18. Now the plaintiffs have fixed the value of the suit for the purposes of declaration at rupees 200 and for injunction at rupees 130, for the purposes of damages, value has been fixed at rupees 5,000 (the amount of damages claimed). 18. Now the plaintiffs have fixed the value of the suit for the purposes of declaration at rupees 200 and for injunction at rupees 130, for the purposes of damages, value has been fixed at rupees 5,000 (the amount of damages claimed). Thus, value for the purposes of court fees, on the own showing of the plaintiffs, comes to rupees 200+130+5,000=5,330. The value for the purposes of jurisdiction, under Section 4 of the Suits Valuation Act, has to be same as for the purpose of court fees. 19. It is manifest that first the value of the suit for the purposes of court fees should be determined and then to apply the same for the purposes of jurisdiction. 20. A Full Bench of Lahore High Court in Karam Ilahi v. Muhammad Bashir and others, AIR (36) 1949 16 had occasion to consider the provisions of Section 7(iv)(c) of the Court Fees Act and Section 8 of the Suits Valuation Act. The Full Bench of the Court held that if a plaintiff has stated a particular value in his plaint, for purposes of court fees and different value for the purposes of jurisdiction in a suit falling under Section 7(iv)(c) of the Court Fees Act, then in such a suit it is the value for the purposes of Court that determines the value for the purposes of jurisdiction. The question referred to the Full Bench was : "Where in a suit properly falling under Section 7(iv)(c), Court Fees Act, where plaintiff has stated in the plaint a particular value for purposes of Court fees and different value for purposes of jurisdiction, it is the former that determines the latter under Section 8, Suits Valuation Act or vice versa.” 21. In that case, the plaintiff, after amendment of the plaint, asked for two declarations : "(a)(i) the civil court should hold that the plaintiff and defendants 1 to 6 are bound by the document, dated 11th September, 1935, registered on 20th September, 1935 and cannot interfere in the family settlement made under the said document and the partition of the property effected according to the said settlement, and that they are bound by it in every way; (ii) the document, executed by Mian Khuda Bakhsh on 18th May, 1940, contrary to the settlement and division of the property embodied in the document, dated 11th September, 1935, is invalid and null and void as against the rights of the plaintiff, and can have no effect so far as the property obtained by the plaintiff under the document, dated 11th September 1935, is concerned. 22. The relevant para fixing the value for the purposes of court fees read : "Value of the suit for purposes of court fees as regards the prayer mentioned in Cl. (a) having parts (i) and (ii) is Rs. 10 in respect of the prayer made in each part, i.e. Rs. 20 in respect of both the prayers". 22. The value of these reliefs for the purposes of jurisdiction was stated for each relief at Rs. 17,500. Relying upon Mt. Zebul -nisa v. Chaudhari Din Muhammad, AIR 1941 Lahore 97, and several subsequent judgments, a contention was raised on behalf of the respondent that plaintiff was required to adopt the value fixed for the purposes of jurisdiction as value for the purposes of court fees and pay ad-volarem court fees on it. Repelling the contention it was held that if the suit is for declaration and consequential relief, then plaintiff must put his own valuation on the relief under Section 7(iv)(c), Court Fees Act, and the value of the suit for the purposes of jurisdiction will then be automatically fixed. (Emphasis supplied) 23. Speaking for the Full Bench, Munir ACJ answered the question thus : ".....My answer to the question therefore is that under the circumstances postulated in the question, it is the value for purposes of court fees that determines the value for the purposes of jurisdiction........" 24. Shri R.S. Mittal, Senior Advocate, learned Counsel for the defendants refers me to S. Ram Ar. S. Sp. Sathappa Chettiar v. S. Ram. Ar. Rm. Shri R.S. Mittal, Senior Advocate, learned Counsel for the defendants refers me to S. Ram Ar. S. Sp. Sathappa Chettiar v. S. Ram. Ar. Rm. Ramanathan Chettiar, AIR 1958 SC 245, for this proposition. Their Lordships in para 14 of the judgment observed : "......Section 7 further provides that in all suits falling under Section 7(iv) the plaintiff shall state the amount at which the value of the relief is sought. If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of Section 7 is considered, it would be clear that, in respect of suits falling under sub-section (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property The basis of the claim is that the property in respect of which a share is claimed is joint family property In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiffs alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees. It really means that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. It really means that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief." 25. Their Lordships proceeded to hold : "What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading Section 7(iv) of the Act alongwith with Section 8 of the Suits Valuation Act. This latter section provides that, where in any suits other than those referred to in court-fees Act, Section 7, paras 5, 6 and 9 and para 10, Cl. (d), court-fees are payable ad valorem under the Act, the value determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under Section 7, sub-section (iv) of the Act are concerned, Section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions of Section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court-fees and that is natural enough. The computation of court-fees in suits falling under Section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court-fees, that determines the value for jurisdiction. The value for court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The value for court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and not vice versa....." (Emphasis supplied) 26. The plaintiffs, having valued their suit for the purposes of court fees at Rs. 5,330, cannot be permitted to value the suit at rupees 6 lakhs for the purposes of jurisdiction to choose their own forum. 27. The Subordinate Judges in Himachal Pradesh, under Section 11 of the H.P. Court Fees Act, 1976, are competent to try the original civil suits of the value as may be determined by the High Court. The High Court of Himachal Pradesh vide notification dated May 13, 1991, has authorised Class-I Subordinate Judges, with five years experience as such, to exercise jurisdiction in a suit the value of which does not exceed rupees 2 lakhs and Subordinate Judges, the value of which does not exceed Rs. 50,000. 28. In the circumstances, the present suit was triable by the competent Subordinate Judge 1st Class Kullu where the suit property is situate. 29. Faced with the situation, Mr. Bhupinder Gupta, learned Senior Counsel for the plaintiffs refers to Bhuwaneshwari Kuer v. Raghubansh Mani Prasad Singh and others, AIR 1954 Patna 34; Ashok Kumar and others v. Om Parkash and others, 1972 SLJ 127; Dronavajjula Vidyamaba v. Vallabhajosyula Lakshmi Venkayamma, AIR 1958 A.P. 218 and Comunidade of Ponchovadi by its Procuradoc v. Silvia Ribeiro e Miranda and others, AIR 1971 Goa, Daman and Diu 34(1), and submits that suit was filed before the Superior Court and therefore this suit cannot be said to be beyond the pecuniary jurisdiction of this Court and Section 15 of the Code of Civil Procedure shall have no application. 30. In Silvia Ribeiros case (supra), suit was filed before Civil Judge Senior Division at Panjim for declaration and injunction. 30. In Silvia Ribeiros case (supra), suit was filed before Civil Judge Senior Division at Panjim for declaration and injunction. The suit, after the settlement of issues, came up for trial before that court when defendants filed a petition before the trial Court stating that as per the averments made in the plaint, the lower Court has no jurisdiction to entertain the suit and, therefore, plaint was fit to be returned for presentation to the proper Court. The trial Judge passed an order that as the issues have been framed by the Court as regards the proper valuation of the suit and matter of jurisdiction raised by the applicant is connected with such valuation, the point-of jurisdiction will be considered at the time the said issue, which was preliminary issue, is decided. Dis-satisfied, the plaintiff filed a revision petition. The learned Judicial Commissioner found that the suit was on the files of Civil Judge, Senior Division who had unlimited pecuniary jurisdiction under Section 20(2) of the Goa, Daman and Diu Civil Courts Act, 1965 and even if the value of the suit for the purposes of jurisdiction is Rs. 1,060 or below 10,000, the Civil Judge Senior Division can try that suit without returning the plaint for presentation to the proper court, i.e. Civil Judge Junior Divisions Court. It is in these circumstances that it was held that Section 15, CPC is merely a rule of procedure and has nothing to do with the jurisdiction of the Court and that keeping in view the provision that Court of higher grade can return the plaint for presentation to the proper Court if it thinks fit, the Court of higher grade always have the jurisdiction to try cases which are triable by the Court of lower grade unless specially prohibited by law. 31. In Bhuwaneshwari Kuers case (supra), interpreting the provisions of Section 15 and Order 7 Rule 10, it was held that these provisions are not imperative in their character as a discretion rests with the court of higher grade either to return the plaint or not to return the plaint for being presented to the Court of lower grade. 31. In Bhuwaneshwari Kuers case (supra), interpreting the provisions of Section 15 and Order 7 Rule 10, it was held that these provisions are not imperative in their character as a discretion rests with the court of higher grade either to return the plaint or not to return the plaint for being presented to the Court of lower grade. In Ashok Kumars case (supra), this Court reiterated that Section 15 and Order 7 Rule 10 CPC are not imperative in their character and Court of the higher grade has a discretion either to return or not to return the plaint for being presented to the lower grade. In Dronavajjula Vidyamabas case (supra), it was held that though the suit was rightly instituted in the lowest grade competent to try the same but its subsequent transfer under Section 24 of the Code of Civil Procedure to a court of higher grade is not illegal. 32. Section 15 of the Code of Civil Procedure provides that every suit shall be instituted in the court of lowest grade competent to try it. Order 7 Rule 10 of the Code provides that at any stage of the suit, plaint can be returned to the plaintiff for presentation before the Court in which suit ought to have been instituted. It is true that the provisions of Section 15 and Order 7 Rule 10 are not imperative in their character. It is equally true that if the Court of higher grade has the jurisdiction to try the suit, then it is not necessary for such Court to return the plaint for being presented to the Court of lowest grade. The reason is that the Court of higher grade and the Court of lower grade have concurrent jurisdiction to try such a suit. 33. Under the H.P. Courts Act, 1976, the Court of the District Judge, for example, indeed have the jurisdiction in all civil suits the value of which does not exceed rupees 5 lakhs. Therefore the filing of suit before the District Judge of the value of say rupees 25,000 and its subsequent trial will not be visited by any illegality. 33. Under the H.P. Courts Act, 1976, the Court of the District Judge, for example, indeed have the jurisdiction in all civil suits the value of which does not exceed rupees 5 lakhs. Therefore the filing of suit before the District Judge of the value of say rupees 25,000 and its subsequent trial will not be visited by any illegality. Section 15 of the Code of Civil Procedure though provides that every suit is to be instituted in the Court of the lowest grade competent to try it but this provision has been enacted by the legislature with a view to protect the courts of the higher grade from over-crowding with the judicial work. The trial of a suit by a court of higher grade, therefore, cannot be said to be trial without jurisdiction and, therefore, court of higher grade is under no legal obligation to return the plaint for being presented to the lower grade. It is a matter of discretion for the court of higher grade either to retain the suit in its own Court or to return it to the plaintiff for being presented to the Court of lower grade. A Division Bench of Patna High Court in Bhuwaneshwari Kuers case (supra), interpreting the provisions of Section 15 of the Code of Civil Procedure held: "The word shall is in our opinion imperative on the suit or and is not imperative in court of higher grade. The reason is that the object of the Legislature is, protection of courts from judicial work and hence the benefit may be waived by the Court of higher grade to take advantage of it. If Section 15 is construed on the background of the object for which it was enacted, it is clear enough that there is no obligation imposed by the Section on the Court of higher grade to return the plaint for being presented to the court of lower grade". 34. The Division Bench heavily relied on the following observations of the Full Bench decision of the Allahabad High Court in Nidhi Lal v. Mazhar Hussain, 7 All. 230:— "The jurisdiction of the Munsif extends to all like suits the value of the subject-matter in dispute in which does not exceed Rs. 1,000. That is to say, upto Rs. 1,000 the Munsif and the District Judge or Subordinate Judge have concurrent jurisdiction. 230:— "The jurisdiction of the Munsif extends to all like suits the value of the subject-matter in dispute in which does not exceed Rs. 1,000. That is to say, upto Rs. 1,000 the Munsif and the District Judge or Subordinate Judge have concurrent jurisdiction. Then comes Section 6, which must be read in as a proviso. The section which has been substituted is practically the same. The word shall is, in my opinion, imperative on the suitor. The word is used for the purpose of protecting the Courts. The suit or 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. Whenever an Act confers a benefit, the donee may exercise the same or not at his pleasure. 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. Consequently, I am of opinion that the Subordinate Judge had jurisdiction in the present case." 35. I respectfully agree with reasoning of the Division Bench in Bhuwaneshwari Kuers case (supra). 36. The question which calls for answer in this case is whether this Court has the jurisdiction to try the suit of the value of rupees 5,000 and odd. Section 15 of the Code is couched in the following nature : "15. Court in which suits to be instituted.—Every suit shall be instituted in the Court of the lowest grade competent to try it." 37. The bare reading of Section 15 shows that every suit shall be instituted in the court of lowest grade which is competent to try it. In other words, a Court must have the necessary jurisdiction to try the suit. The High Court does not derive its original jurisdiction under the H.P. Courts Act. The High Court is clothed with the original jurisdiction under the State of H.P. Act, 1970. In other words, a Court must have the necessary jurisdiction to try the suit. The High Court does not derive its original jurisdiction under the H.P. Courts Act. The High Court is clothed with the original jurisdiction under the State of H.P. Act, 1970. It may be pertinent to recall that the State of H.P. was a Union Territory before it was established as a State by the Act, State of H.P. Act, 1970 (Act No. 53 of 1970) on January 25, 1971. Section 3 of the Act provides that on and from the appointed day, i.e., January 25, 1971, there shall be established a new State to be known as State of Himachal Pradesh comprising the territories which immediately before that date were comprised in the existing Union Territory of Himachal Pradesh. Part-IV of the Act provides for establishment of the High Court and other matters related thereto. Under Section 21 of the Act, separate High Court for the State of Himachal Pradesh was established w.e.f. the date the State of H.P. was established. Section 23 of the Act provides for jurisdiction of the High Court. It reads : "23. Jurisdiction of High Court.—The High Court of Himachal Pradesh shall have, in respect of any part of the territories comprised in the State of Himachal Pradesh, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Delhi." 38. It may be seen that the High Court of Himachal Pradesh was conferred with all such jurisdiction, powers under law in force immediately prior to the establishment of the High Court and was exercisable in respect of that part of the Union Territory of Himachal Pradesh by the High Court of Delhi. Thus, the High Court of Himachal Pradesh inherited the jurisdiction of Delhi High Court which it had over the Union Territory of Himachal Pradesh. 39. The Delhi High Court under sub-section (2) of Section 5 of the Delhi High Court Act, 1966 had the original civil jurisdiction to try the Civil Suits the value of which exceeded rupees 50,000 in the year 1971 when State of H.P. Act came into force, (now Rs. 5 lakhs). 39. The Delhi High Court under sub-section (2) of Section 5 of the Delhi High Court Act, 1966 had the original civil jurisdiction to try the Civil Suits the value of which exceeded rupees 50,000 in the year 1971 when State of H.P. Act came into force, (now Rs. 5 lakhs). Sub-section 2 of Section 5 reads thus : "(2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds (rupees five lakhs)". 40. Presently, this Court is clothed with the original civil jurisdiction in civil suits the value of which exceed rupees 5 lakhs. In other words, this court has the original civil jurisdiction only in suits the value of which is not less than rupees 5 lakhs. The Court thus does not have the jurisdiction to try the civil suits of the value of less than rupees 5 lakhs. It is manifest from the combined reading of Sections 9 and 10 of the H.P. Courts Act, 1976 Section 23 of the State of H.P. Act and Section 5 of the Delhi High Court of District Judge, being the principal Court of Original jurisdiction has power to try the suits the value of which is rupees 5 lakhs or less only. This Court has the pecuniary jurisdiction to try the suits only of the value exceeding rupees 5 lakhs. In other words this Court is not vested with the jurisdiction to try suits value of which is less than rupees 5 lakhs. 41. To conclude this Court does not have the pecuniary jurisdiction to try the present suit as the value of the suit is less than rupees 5 lakhs. 42. The issue is accordingly decided. 43. In view of my decision on issue No. 3, the findings on other issues are not called for. 44. As this Court does not have the jurisdiction to try the suit, it is directed that plaint be returned to the plaintiff for presentation before the proper Court under Order 7 Rule 10 read with Rule 10A under the endorsement of the competent officer of the court. 44. As this Court does not have the jurisdiction to try the suit, it is directed that plaint be returned to the plaintiff for presentation before the proper Court under Order 7 Rule 10 read with Rule 10A under the endorsement of the competent officer of the court. OMPs No. 2 and 274 of 2000 In view of the decision in the main suit the applications have become infructuous and no order is required to be passed. Application dismissed.