1. This appeal has been directed against the order dated 15th May, 1971 passed by Shri R. K. Sen, Sub-Judge, Delhi whereby the trial court has returned the plaint to the plaintiff for presentation before the court of competent jurisdiction after having found that the suit is not correctly valued for the purposes of court fee and jurisdiction and the value of the properties in dispute is about Rs. 1,00,000/-.
2. The plaintiff had filed a suit for partition of properties Nos. 18 / 16A, 16/ 1 A, Tilak Nagar, New Delhi and A-12/17, New Market, Moti Nagar, New Delhi-15 and for rendition of accounts on the ground that the plaintiff and defendants I to 5 constitute a joint Hindu family and the plaintiff has I/ 6th share in the properties whereas defendants I to 5 have 1/6th each share in this property.
3. Out of the pleadings of the parties, as many as eight issues were framed but Issue No. 4, which is relevant to determine the point in controversy is reproduced below:
'4. Whether the suit is not properly valued for purposes of court fee and jurisdiction.'
The evidence was also led on this issue and after appreciation of evidence, the learned trial court has held that the suit has not been properly valued for purposes of court fee and jurisdiction as the value of the properties in dispute is about Rs. 1,00,000/-, as stated above, and hence returned the plaint to the plaintiff.
4. Mr. B. I. Singh, learned counsel for the appellant, submitted that, the finding of the trial court that the suit has not properly been valued for purposes of court fee and jurisdiction and the value of the properties is about Rs. 1,00,000/ -, is factually incorrect. According to him, the evidence produced by the plaintiff should have been relied upon by the learned trial court, more particularly evidence of PW 14, Shri Narinder Nath Chakarvorty, and the inspection reports, Exts. PW 14/ 1, PW 14/ 2 and PW 14/ 3 according to which the value of the properties together should not have been more than Rs. 46,000/ -. According to Mr. Singh, the learned trial court should have relied upon the report of the architect, PW 14, in preference to the report of Shri Madan Lal Mehta, DW 4, and consequently should not have held that the value of the properties is about Rs. 1,00,000/-. But, the learned counsel for the appellant has not given any cogent reasons as to why the testimony of DW/4, Shri Madan Lal Mehta should be ignored and the statement of Shri Narinder Chakarvorty, PW 14, should be relied upon. In my opinion, the testimony of DW 4 has correctly been relied upon by the learned trial court in preference to the testimony of PW 14 because the report of PW 14 has been written in slipshod manner without going into the details and for the reasons stated by the learned trial court, it has rightly come to the conclusion that the evidence of PW 14 does not inspire confidence. On the other hand, the report of DW 4 is more comprehensive and gives more details about the estimated value of the properties and the trial court has rightly relied upon such report and assessed the value of the property accordingly at about Rs. 1,00,000/-. thereforee, the finding of the learned trial court that the value of the property for the purposes of court fee and jurisdiction is upheld and I am of the opinion that the trial court has rightly returned the plaint to the plaintiff for presentation before the court of competent jurisdiction on the ground that it has no pecuniary jurisdiction to try the suit.
5. At this stage, it may be pointed out that even the learned counsel for the appellant has very faintly assailed the finding of the value of the properties as found by the trial court. thereforee, there does not seem to be any substance in the appeal.
6. During the course of arguments, learned counsel for the appellant, Mr. B. I. Singh, further submitted that already the pleadings were complete, issues had been framed and part of evidence had also been led into by the parties before the trial court and in case the plaintiff was made to re-file the plaint in a court of competent jurisdiction, it would put the plaintiff into unnecessary harassment culminating into unnecessary delay in the disposal of the suit and, thereforee, he made an oral application that in these circumstances, the suit should be transferred by the High Court to the court of competent jurisdiction, in the present case it was the court of the District Judge. According to learned counsel, in order to meet such a situation, Section 24 of the Code of Civil Procedure, 1908 has been amended and clause (5) inserted therein. He also relied upon a case reported as Pushpa Kapal v. Shiv Kumar : 35(1988)DLT187 . In that case, a suit was filed in the High Court and it was found that the value of the suit was less than Rs. 1,00,000/- and the plaint was ordered to be returned to the plaintiff for presentation before the court of competent jurisdiction and for this purpose the plaintiff was directed to appear before the Deputy Registrar on a particular date. However, the plaintiff chose not to receive back the plaint for presentation before the District Judge and filed an application under S. 24 of the Code of Civil Procedure for transfer of the plaint to the court of the District Judge. In other words, the plaint, as a matter of fact was not yet returned, but was still pending. In order to appreciate his submission it is necessary to produce the relevant provision of S. 24 as under:
'24. General power of transfer and withdrawal :---
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may, at any stage,
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
x x x x (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.'
This court, in para 2 in the case. of Pushpa Kapal, (supra) analysed the powers of the High Court under Section 24(5) of the Code of Civil Procedure and observed that subsection (5) of this provision was inserted by Civil Procedure Code (Amendment) Act, 1976 for the first time and its insertion was necessitated for the reason that some of the High Courts in India were of the view that suit/ appeal/ proceeding pending before a court must be understood in the sense that the same was duly pending meaning thereby that it was pending in a court of competent jurisdiction, and if it was pending in a court without jurisdiction, the same could not be transferred from that court to another court. In order to do away with the mischief caused by 'the time consumed in recording the evidence, sub-section (5) was inserted in S. 24 as a result of which a suit or proceeding can be transferred under this section from a court which has no jurisdiction to try it.
7. I am afraid Section 24 of the Code of Civil Procedure cannot be of any assistance to the appellant-plaintiff for transfer of the suit from the court of sub-Judge. The general power of transfer and withdrawal of suit under S. 24 has been conferred upon the High Court and the District Judge only in respect of the proceedings pending in any court subordinate to it. In the present case, the trial court has already returned the plaint for presentation before the court of competent jurisdiction and, thereforee, at present no proceedings are pending in any court subordinate to the High Court. It is no doubt true that the appeal is a continuation of the hearing of the suit but the continuation of the hearing of the suit is only possible in case the proceedings are pending in a court subordinate to the High Court. Since, admittedly the plaint has been returned under the orders of the trial court and there is no plaint or suit pending in a court subordinate to High Court , the case cannot be transferred under section 24 of the Code of Civil Procedure.
8. Next argument advanced by counsel for the appellant is that the plaintiff has only 1/6th share in the properties and having regard to the value of his share, admittedly the value of the properties, falling to his share, shall be within the jurisdiction of the trial court as according to him the suit has to be valued on the basis of his share only and cannot be determined with respect to the value of the whole property. It is settled principle of law that in a suit for partition of the property, as in the present case, the jurisdictional value has to be determined onthe value of the whole of the property in accordance with the provisions of R.8 of Chapter 3-C of Punjab High Court Rules and Orders, Volume 1, framed by the High Court under the powers conferred by the S. 9 of the Suits Valuation Act, 1887. In this matter, I am supported by the decision of Prithvi Raj, J. in Jagdish Pershad v. Joti Pershad, 1975 Raj- LR 203 wherein it has been held that S. 9 of the Suits Valuation Act, 1887 (VII of 1887) envisages that when the subject-matter of suits of any class, other than suits mentioned in the Court-fees Act, 1870, section 7, paragraphs V and VI, and paragraph X, clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government direct that the suits of that class, shall, for the purposes of Court-fees Act, 1870, and of the Suits Valuation Act and any other enactment for the time being in force; be treated as if their subject-matter were of such value as the High Court thinks fit to specify in that behalf. Pursuant to its aforesaid power the Punjab High Court has framed Rule 8 in Chapter 3-C of the Punjab High Court Rules and Orders, Volume 1, which are applicable to Delhi, providing for the value regarding court fee and jurisdiction which a plaintiff is required to state in the plaint in suits for partition of property. It would, thereforee, be seen that so far as value for the purpose of jurisdiction is concerned, for the purposes of Suits Valuation Act, 1887, value of the whole of the property, sought to be partitioned, as determined by sections 3, 8 and 9 of the Suits Valuation Act has to be stated. Accordingly for the purposes of court fee and jurisdiction, the value of the whole of the property should be taken into consideration.
9. In the light of what is discussed above, there is no merit in the appeal and consequently has to be dismissed.
10. However, Rule 10B of 0. VII of the Code of Civil Procedure, 1908 has been enacted which empowers the Court of appeal to direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should have been instituted (whether such Court is within or without the State in which the Court hearing the appeal is situated) and fix a date for the appearance of the parties in the Court in which the plaint is directed to be filed. This new Rule has been inserted with a view to empowering the court hearing an appeal against an order for the return of plaint to direct that, instead of the, plaint being returned, the suit may be transferred subject to the provisions of the Limitation Act, 1963, to the Court in which it should have been instituted. Further, provisions for obviating the necessity of serving summonses on the defendants, where the return of plaint was made after the appearance of the defendants in the suit have also been included in the rule.
11. On the basis of the oral application made by the plaintiff, as mentioned above, while returning the plaint, I direct the plaintiff to file the plaint in the court of competent jurisdiction, viz., court of the District Judge, after receipt of the same form the Registry. Further, the parties are directed to appear before the learned District Judge on 1lth July 1991.
12. In the light of above, the appeal is dismissed. As stated above, the plaintiff is directed to present the plaint before the court of competent jurisdiction, i.e., court of the District Judge and the parties shall appear before that court on 11th July, 1991. In the circumstances, there is no order as to costs.
13. Appeal dismissed.