This Rule was obtained by Defendant No. 2, and is directed against an order of the learned District Judge of Nadia by which he granted an extension of time to the Plaintiff Opposite Party to re-file a plaint in the proper Court with requisite court-fees, the plaint having been previously returned by a Munsif for want of pecuniary jurisdiction.
The relevant facts may be shortly stated. The suit which was one to set aside a patni sale under sec. 14 of the Patni Regulation was originally instituted in the Court of the Munsif at Ranaghat, being valued at Rs. 550. On an enquiry as to valuation under the Court Fees Act, the learned Munsif, however, found the value to be Rs. 2,000, and he thereupon returned the plaint for presentation to the proper Court, as he had no jurisdiction to deal with suits above Rs. 1,000 in value. This order was obviously made under the provisions of Or. 7, r. 10 of the Code of Civil Procedure, which lays down that a plaint may be returned at any stage of the suit to be presented to the Court in which the suit should have been instituted, and requires that when a plaint is so returned, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it. It will be observed that there is no provision which authorizes or enables the Court in returning a plaint in such circumstances to fix a date, or otherwise allow time within which the plaint is to be re-filed. The learned Munsif in this case, however, did fix a date for this purpose, and to this extent, in our opinion, acted beyond the scope of Or. 7, r. 10. Be that as it may, instead of complying with this order, the Plaintiff preferred an appeal against it, as he was entitled to do. The appeal was eventually dismissed by the learned District Judge on the 10th February, 1940. No steps appear to have been taken by the Plaintiff after this, until the 14th May following, when an application was made to the learned District Judge for a supplementary order extending the time for presentation of the plaint in the proper Court. It is stated that the Plaintiff had moved this Court for such an order a day earlier, but the application was withdrawn. On the 18th June, 1940, the learned District Judge granted the Plaintiff's prayer and fixed a date by which the plaint was to be refiled. It is against this order that the present rule is directed.
In our opinion, the order was without jurisdiction. The learned Judge purported to act under the provisions of secs. 148 and 149, of the Code of Civil Procedure, but the, facts stated are sufficient to show that neither of these sections could have any application. There was no question here of enlarging any period fixed or granted by the Court for the doing of an act prescribed or allowed by the Code, nor was it a case of payment of deficit court-fees on a plaint which had been filed in a Court having jurisdiction. When a plaint is returned for being presented to the proper Court under Or. 7, r. 10, it is for the Court in which it is so presented to consider whether the plaint is within time, and for this purpose limitation is to be reckoned from the date of such presentation and not from the date on which it had been filed in the wrong Court which returned it for want of jurisdiction. The period of limitation is prescribed by statute, and if the Court were to fix a date in this behalf, it would be obviously acting in excess of its powers. All that the Court in which the plaint is finally presented may and should consider is whether or not, having regard to the provisions of the Limitation Act, the Plaintiff is entitled to the deduction of any time in computing limitation.
In this view of the matter, the learned District Judge was not competent to pass the order he did. It will not do to say that in making this order he was exercising the powers of the original Court under sec. 107, sub-sec. (2) of the Civil Procedure Code, for, as already indicated, the original Court had no jurisdiction to make any order in this behalf under Or. 7, r. 10. It is not necessary to consider whether or not, having disposed of the appeal, the learned District Judge had become functus officio, for we hold that even if he was in seisin of the appeal, he could not make such an order. In our opinion, therefore, the order complained of must be set aside.
It is stated that the plaint was actually filed before the learned Munsif at Krishnagar with additional court-fees within the time allowed by the learned Judge, and the present Petitioner thereafter filed a written statement in which, among other pleas, he definitely raised the bar of limitation. As already stated, it will be for the Court in which the suit is now pending to decide the question of limitation, and in doing so it will no doubt take into consideration all the relevant facts in order to determine whether the Plaintiff can claim the benefit of sec. 14 or any other similar provisions of the Limitation Act. Any observations that we have made in this judgment will not prejudice the determination of such question.
The result is that the Rule is made absolute with costs—2 gold mohurs.
Let the affidavit in reply filed in Court to-day be received and kept on the record.
C.C