PATNA HIGH COURT

                                                Ram Kishun Rai

                                                         Vs

                                                  Ashirbad Rai

                                           A.F.O.O No. 217 of 1948

                                    (Ramaswami and Sarjoo Prasad, JJ.)

                                                   03.05.1950

                                                  JUDGMENT

Sarjoo Prasad, J.

1. This is an appeal by the plaintiffs against a decision of Mr. Radha Prasad Singh, Subordinate
Judge of Arrah, dated 28th July 1948, This appeal raises an interesting question of law as to the
recording of a compromise under Order 2 Rule 3, Civil Procedure Code.

2. To lead up to the points for discussion, I may indicate the essential facts. On 8th November
1945, a plaint was presented before the Munsif, Third Court, Arrah, which was registered as Title
Suit No. 182 of 1945. In the said suit, the Court directed issue of summonses on the defendants
which were duly served, and defendant 1 filed his written statement on 21st February 1946. The
issues in the suit were settled in March 1946, and 22nd August 1946 was the date fixed for
hearing. The case was, however, adjourned on that date for 16th January 1947. In the meantime
on 29th October 1946, a petition of compromise was filed, and the plaintiffs applied that the
compromise should be recorded. This petition along with the compromise filed in the case was
ordered to be put up in the presence of the parties on the date fixed for hearing. The petition of
compromise is dated 3rd September 1946 and purports to be between the plaintiffs and the
defendants to the suit. Although the heading of the compromise petition shows that it is by the
plaintiffs and defendants 2 to 6, it also purports to have been signed by Ashirbad Rai, defendant
1, in his own pen. The plaintiffs and defendants 2 to 6 in their petition for recording the
compromise alleged that defendant 1 had affixed his signature to the compromise on getting a
sum of Rs.3000 by way of consideration for the compromise as recited in the terms thereof. The
plaintiffs and the pleader for defendants 2 to 6 signed the compromise petition but it did not bear
the signature of the pleader of defendant 1, and it appears from the allegation in the petition for
recording the compromise that defendant 1 told the parties that he would get the compromise by
his pleader signed on the re-opening of the Court which promise he did not actually carry out. On
16th January 1947, the pleader for defendant 1 intimated to the Court that he had not been served
with a copy of the petition filed by the plaintiffs and defendants 2 to 6 for recording the
compromise, and the Court directed the plaintiffs to serve a copy of that petition at once on the
pleader of defendant 1. On the same day at a later stage defendant 1 thereafter filed a rejoinder to
the plaintiff's petition for recording the compromise. In this rejoinder, it is alleged, defendant 1
repudiated the aforesaid terms and his signature thereon, and the Court after a few adjournments
directed that the matter should be put up for hearing regarding the compromise on 1st February
1947. In the meantime the plaintiffs were permitted to take photographs of the signature of
defendant 1 on the compromise petition, the vakalatnama and the written statement filed in the
case for getting them compared by an expert. They also in the meantime took out dasti summons
for the witnesses as per isimnavasi filed by them. Defendant 1 also applied for direction on the
plaintiffs and defendants 2 to 6 to supply him with copies of their petitions for obtaining
photographs in order to enable him to make necessary pairvis. I understand from the parties that
the signatures in question were examined by an expert who has submitted a report favour of the
plaintiffs and against defendant 1. While these stops were being taken when the matter was put
up for consideration by the Court on 1st February 1947, defendant 1 filed a petition praying to
the Court to decide the issues regarding the question of jurisdiction, and to postpone the
examination and cross-examination of the expert to some future date after the issue regarding the
jurisdiction of the Court to entertain the suit had been decided. The Court adjourned the case on
that date and eventually after various adjournments, it took up the issue as to jurisdiction for
decision on 21st April 1947. It held that the value of the suit was Rs. 15 000 both for the purpose
of jurisdiction and court fees and much beyond the pecuniary jurisdiction of the learned Munsif.
In that view of the matter, the learned Munsif held that he had no alternative but to find that the
suit was clearly beyond the pecuniary jurisdiction of that Court and hence the plaint was liable to
he returned. He, therefore, ordered the plaint to be returned to the plaintiffs for being presented to
the proper Court competent to entertain the suit. The plaintiffs brought up the matter in revision
before this Court but their application was dismissed, and the decision of the learned Munsif on
the point of jurisdiction and court-fees was affirmed. This brought to a close the first phase of the
litigation between the parties. It is apparent from the above that the compromise filed on 28th
October 1946, before the learned Munsif was not recorded as it could not be recorded by him, he
having no jurisdiction to entertain the suit itself.

3. I now come to the second phase of the litigation which started on 10th April 1948, when the
plaint was presented afresh to the learned Subordinate Judge, Third Court, Arrah. The suit was
then registered as Title Suit No. 26 of 1948. The deficit court-fees were duly paid and summons
were ordered to be issued to the defendants fixing 20th May 1948, for settlement of issues. In the
meantime on 1st May 1948, the plaintiffs filed a petition that the compromise petition filed in
Title Suit No. 182 of 1945 of the Munsif, 3rd Court Arrah, he called for and kept in a closed
cover. On 10th May 1948 summonses were served on defendant 1 who appeared on that date and
asked for time to file his written statement which was accordingly granted. On 24th May the
plaintiffs applied for recording the compromise called for from the Court of the learned Munsif.
This application for recording the compromise was opposed by defendant 1 though the other
defendants do not appear to have taken any exceptions to the same. Defendant 1 denied that there
was any compromise between the parties, or that he signed the petition of compromise. His
allegation was that the compromise petition was a forgery, and the allegations contained therein
were false. The question whether the Court was competent to record the compromise filed before
the learned Munsif, Third Court, Arrah, was taken up for hearing on 24th July 1948 and the
learned Subordinate Judge by his order under appeal passed on 28th July 1948 held that when the
compromise was filed, there was no suit pending between the parties, and that being so, the
alleged compromise could not be recorded under Order 23 Rule 3 by the learned Subordinate
Judge, and the remedy of the parties, if any, was to bring a suit on the basis of the alleged
compromise, and for the enforcement thereof. The learned Subordinate Judge, however, did not
enter into the merits of the question whether the compromise was genuine or otherwise, It is
against this order of the learned Subordinate Judge that the present appeal is directed.

4. The question in my opinion, is not free from difficulty. The specific provision of the Code of
Civil Procedure under which the Court has power to record a compromise is Rule 3 of Order 23
which runs as follows:

        "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or
        in part by any lawful agreement or compromise, or where the defendant satisfies the
        plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court
        shall order such agreement, compromise or satisfaction to be recorded, and shall pass a
        decree in accordance therewith so far as it relates to the suit."

If it is held that this suit was pending at the time when the compromise petition was filed, in other
words, if it is found that the present suit, namely, Title Suit No. 26 of 1948 before the
Subordinate Judge, First Court, Arrah, is nothing but a continuation of Title Suit No.182 of 1945
filed before the Munsif Third Court, Arrah, then the compromise filed in the suit cannot but be
recorded under Order 23 Rule 3, provided it otherwise on merits satisfies the requirements of the
rule. If, on the other hand, it is held that the title suit before the learned Subordinate Judge in
which the prayer for recording this compromise is made is distinctly a fresh suit and not a
continuation of the previous suit then evidently the compromise in question was arrived at when
the present suit was not pending, and the Court then will have no jurisdiction to record such a
compromise under this provision. The party affected in such a case may enforce the rights by a
separate suit.

5. Mr. G.P. Das for the appellants contends that the present suit should be taken to be a
continuation of the suit filed before the learned Munsif, the plaint and the parties being the same,
and as such, the compromise should be recorded. He also contends that in any case the learned
Subordinate Judge was in error in trying the matter piecemeal, and he should have also taken
evidence to find whether the compromise was genuine or otherwise. Mr. Awadh Bihari Saran for
the respondents presses the contrary view. According to his submission, the suit before the
learned Subordinate Judge was altogether a fresh suit and could not be in any sense a
continuation of the former suit. He accordingly supports the decision given by the learned
Subordinate Judge.

6. There are no decisions of this Court directly bearing upon the point, and at any rate none has
been cited at the Bar. A great deal will depend upon the meaning of the term "suit" used under
Order 23 Rule 3 of the Code. Section 15, Civil Procedure Code, provides that the suit shall be
instituted in the Court of the lowest grade competent to try it. This shows that if the Court before
whom the plaint-is presented finds that it is not competent to try it, it shall at any stage return the
plaint to be presented to the Court in which the suit should have been instituted. This is provided
for in Rule 10 of Order 7. The combined effect of the two rules is that a suit cannot be said to be
instituted so long as the plaint is not presented before the Court competent to try the suit. It may
be that for certain purposes the Court before whom a plaint is originally filed may have
jurisdiction to entertain the plaint and to pass certain orders with refer once to it. But when the
Court before whom the plaint was filed returns it to be presented in a Court of competent
jurisdiction, the suit is to be considered as instituted on the date of such presentation. A reference
may be made in this connection to a decision in Hedlot Khasia v. Karan Khasiant1, That case
was under the old Code of Civil Procedure, and Section 57 of the old Code corresponds to Order
7 Rule 10 of the present Code. Their Lordships, in dealing with the first and second contentions
on behalf of the appellant which dealt with the question of the frame of the suit and the plea of
limitation, held that the combined effect of Section 57, Civil Procedure Code, and Section 14,
Limitation Act, is that when the plaint is returned to be presented in a Court of competent
jurisdiction, the suit is to be considered as instituted on the date on such presentation. They also
held that if a contrary view were adopted, the inference would follow that the provisions of
Section 14, Limitation Act were superfluous

        "It would have been needless," their Lordships observed, "to formulate the rule embodied
        in Section 14, unless the theory were adopted that the suit was instituted only when the
        plaint was presented in the Court of competent jurisdiction."

Another decision of the Calcutta High Court bearing upon the point is Bimala Prasad v. Lal
Moni Devi2, In that case it was held that when the plaint which has been returned is presented in a
Court of competent jurisdiction, the suit, even for purposes of court fee, must be taken to be
instituted on the date of such representation and therefore on such plaint the court-fee should be
leviable under she law which was in force at the titer) when the plaint was represented, and if the
Act is amended in the meantime increasing the amount of fee payable thereunder the plaintiff
should be credited with fee originally paid. In that case their Lordships relied upon the earlier
decision of the Court referred to above in the case of Hedlot Ehasia v. Karan Khastam3,

7. There are decisions of other Courts which accept the view taken by the Calcutta High Court. A
reference may be made to the decision in Hirachand Succaram v. G.I.P. Ry. Co4, and also to a
recent decision of the Madras High Court in T. Chandrayya v. V. Seethanna5, In the Bombay
case, their Lordships relying upon the Calcutta view held that when the plaint is returned to be
presented in a Court of competent jurisdiction, the suit is to be considered as instituted on the
date of such presentation, and it could not be said that "the previous suit instituted in a Court
having no jurisdiction was continued in the Court which had jurisdiction to try the suit." In the
Madras case the original plaint was filed within time but for want of pecuniary jurisdiction it was
returned by the Court for presentation to the proper Court. The plaintiff with a view to bringing
the claim within jurisdiction amended the plaint by striking out part of his claim and represented
it to the same Court. It was found, however, that the claim on the date of the representation had
become time-barred. The learned Munsif before whom the plaint was filed held that it was
barred, but the learned Subordinate Judge on appeal took a different view which was affirmed by
a single Judge of the High Court they being of the opinion that the amended plaint filed on 6th
august 1930, must be deemed to be a continuation of the suit which was filed on 30th October
1929 and as such, was within time. In Letters Patent appeal their Lordships disagreed with this
view and held that a Court which had no jurisdiction could not pass orders in the suit beyond
directing the plaint to be presented to the proper Court and giving a direction with regard to the
costs incurred up to the time of the return of the plaint, and that the suit must be deemed to have
been instituted on the date of representation of the amended plaint which the Court had
jurisdiction to accept and was, therefore, barred. Their Lordship also refused to grant the benefit
of Section 14, Limitation Act to the plaintiff under those circumstances. The view therefore held
by all these Courts is that after the plant has been returned for representation to the proper Court,
the institution of the suit commences from the date on which the plaint is presented to the proper
Court, and that the suit so instituted is not a continuation of the suit before the Court which had
really no jurisdiction to entertain it and transferred it for representation to the proper Court.

8. The seal of approval appears to have been set upon this view of the law by a decision of the
Privy Council in Ramdutta Ramkissendass v. E.D. Sassoon and Co5., The relevant passage is at
P.1057 of the report. There the question was whether limitation applied to bar the claim of the
respondents under the award which they had obtained. The Judges of the High Court held that
the arbitration proceedings which resulted in the award under consideration before the Privy
Council were in effect a mere continuation of the proceedings which had been instituted on nth
July 1915, but which proved abortive through want of jurisdiction of the arbitrator appointed The
Privy Council disagreed with that view of the High Court and observed as follows:

        "They think that these proceedings came to an end with the decision of the single
        arbitrator whose award was ultimately Section 4 aside and that the proceedings instituted
        at a later date, after the decision in the Privy Council had been announced, cannot be
        regarded as a mere continuation of the first proceedings It is quite clear that where a suit
        has been instituted in a Court which is found to have no jurisdiction and it is found
        necessary to raise a second suit in a Court of proper jurisdiction, the second suit cannot be
        regarded as a continuation of the first, even though the subject- matter and the parties to
        the suits were identical."

Their Lordships then referred to Section 14, Limitation Act, as providing an alleviation of the
hardships that might arise in such cases In view of those clear and
categorical pronouncements of the Judicial Committee the matter is hardly left in the region of
doubts at all.

9. I shall, however refer to some of the decisions on which reliance has been placed by the
learned Advocate for the appellants. One of them is the decision in Khellat Chunder Ghose v.
Nusseebunnissa Bibee6 In that case, a Division Bench held that the date of a suit must be taken to
be that on which the plaint was originally filed and not that on which it was filed in another Court
either as an amended plaint or as a plaint returned to be filed in that Court. But this observation
must be read subject to the facts of the case in which the decision was given. In that case the
plaint was originally filed before a Munsif but the Munsif estimated the value of the claim stated
by the plaintiff as beyond the jurisdiction of his Court. He accordingly returned the plaint to the
plaintiff in order to its being presented in a proper Court. The plaintiff then presented the plaint in
the Court of the Subordinate Judge, sand the Subordinate Judge tried the case and gave the
plaintiff a decree. It was contended that when the suit was brought in the Munsif's Court, Act 26
of 1867 was replaced by another Act, Act 6 (7 of 1870, under which the valuation was 15 times
the net profits. That being so, the suit would be within the jurisdiction of the learned Munsif. It is
quite clear, therefore that here the suit had been decided by the Subordinate Judge who although
not the court of the lowest grade competent to try the suit, was nevertheless competent to
entertain the suit and to try it, and therefore it made no difference whether the plaint was
presented to him under the new Act or presented to the learned Munsif. Of course, the proper
course should have been to present it before the learned Munsif after the change in the law.
Nevertheless if the learned Subordinate Judge proceeded to decide the matter it was quite
competent for him to decide and the date of the institution of the suit, therefore, did not really
matter at all.

10. The next case on which reliance has been placed is the decision in Ramaswami Iyer v.
Veerarayan Raja7, There also the facts were almost parallel to the facts in the Weekly Reporter
case so far as the point of jurisdiction is concerned. Indeed when their Lordships' attention was
drawn to the decision in Hirachand Succaram v. G.I.P. Ry. Co8, they distinguished the case on
the following grounds:

        "The difference between Bombay suits and the suit now before us is that in the Bombay
        suits the Subordinate Judge had no jurisdiction to try them, but in the case before us the
        Subordinate Judge had jurisdiction, although after the suit bad been instituted it was found
        that another Court also had jurisdiction and that the Code of Civil Procedure required the
        suit to be tried by the other Court as the Court of first instance."

Therefore, that decision also is distinguishable. Where there is another Court also having
jurisdiction the jurisdiction of the Court before when the suit is tried is not affected by the mere
fact that the other Court is the Court of the lo vest grade competent to try it The cases of this
class, therefore, stand on a different footing, and do not support the argument of the learned
counsel for the appellants.

11. Another decision cited on behalf of the appellants is the decision in Ganga Prasad v.
Ramanand9, In that case their Lordships held that representation of a plaint in accordance with
the order of the former Court before a Court of competent jurisdiction within the period of
limitation amounts to a continuance of the suit, and therefore no question of limitation aries. No
reasons have been assigned in the judgment for arriving at this conclusion and in any case so far
as this Court is Firm Jiwan Ram Ramachandra v Jagernath Sahu10, that concerned, it has been
held in a Court returning a plaint for want of jurisdiction has got no authority to grant any time to
the plaintiff for presenting it to the proper Court. The decision in Ganga Prasad v. Ramanand11,
therefore does not commend itself to me as a current decision.

12. Another contention which has been urged in support of the view that the present suit could be
taken to be a continuation of the first suit is that, it could not be said that the learned Munsif had
completely no jurisdiction in the matter. The argument is that if the point of jurisdiction had not
been raised, and the Court had proceeded to decide the suit, the decision would not be open to
question in a collateral proceeding on the ground that the learned Munsif had no jurisdiction to
decide the suit. Of course if the question of jurisdiction had not been raised, then the matter could
not be collaterally re-opened in a subsequent suit and the decision of the Court challenged on the
ground of jurisdiction. It is really for that Court to decide whether he has jurisdiction to entertain
the suit or not, and whether having regard to the value of the subject matter of the suit it falls
within his pecuniary jurisdiction. But once the jurisdiction of the Court has been challenged and
the Court has decided that it has no jurisdiction to entertain the suit and he directs the plaint to be
presented before a Court competent to entertain it the matter ends there. The Court thereafter is
functus officio. The plaint when it is returned to the plaintiff for being presented to the proper
Court may or may not be so presented by him. It may be subject to limitations. It may be also
subject to payment of proper court-fees. Therefore this argument of the learned counsel for the
appellants does not in any manner lead to the inference that the subsequent institution of the suit
in a Court of competent jurisdiction is a mere continuation of the previous proceedings.

13. I have already dealt with the relevant oases bearing on the point and after a detailed analysis
of the matter, I have no hesitation in coming to the conclusion that the suit pending before the
learned Subordinate Judge at Arrah was in no sense a continuation of the suit filed before the
learned Munsif.' The position then is that the compromise petition which was presented to the
learned Munsif was filed not during the pendency of the present suit but at some stage before the
suit came to be instituted. Under those circumstances it seems difficult to hold that the provisions
of Order 23 Rule 3 applied, and that the Court could record such a compromise under that
provision. It is unfortunate that the exigencies of the case may have deprived the plaintiffs of
enforcing a right to which they possibly may have been entitled if it had not been held that the
suit was beyond the competence of the learned Munsif. There are also no materials before us,
and in fact it would be unnecessary to go into those materials in the view of the law which I have
taken affirming the view of the learned Subordinate Judge to hold whether the 'compromise is
genuine. If genuine, the
plaintiffs may have their remedies by way of a suit. But in my opinion, for the reasons discussed
above, I must uphold the decision of the learned Subordinate Judge and agree with him that the
compromise in question cannot be recorded in the present suit.

14. The appeal, therefore, fails and must be dismissed. In the circumstances, however, I would
not order any costs to defendant 1 who is the contesting respondent here,
either of this Court or of the Court below.

Ramaswami, J.

15. I agree.
Appeal dismissed.

Cases Referred.

115 C.L.J. 241: (13 I.C. 377)
2 AIR (13) 1926 cal. 955 : (30 C.W.N. 90)
315 C.L J. 241: (13 I. C. 317) 5 AIR (27) 1940 Mad. 689 : (194 I.C. 646)
4 AIR (15) 1928 Bom. 421: (52 Bom. 548)
556 Cal.1048: (AIR (16) 1929 P.C. 103)
616 W.R.47
7 AIR (28) 1941 Mad 711: (196 I.C 521)
852 Bom 48: (AIR (15) 1928 Bom. 421)
9 AIR (2) 1915 ALL. 344: (30 I.C. 544)
1018 P.L.T 250: (AIR (241 1937 Pat 495)
11 AIR (2) 1915 ALL. 344 :( 80 I.C. 544)