P L D 1931 Karachi 277 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑The appellants have challenged in this appeal under the then clause 10 of Letters Patent, the order of a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench exercising jurisdiction on the original side, whereby he dismissed the suit of appellants as not maintainable.

2. We have heard Mr. Ibadatyar Khan, the learned counsel for the appellants and Mr. G. Raymond, the learned counsel for respondent No. 4 in the appeal. Mr. M. G. Dastgir, the learned counsel for remaining respondents adopted the arguments of learned counsel for respondent No.

4. In order to understand the controversy in this appeal in its true perspective it is necessary to state here some of the facts in detail.

3. The appellants and the respondents claim to be related inter se through a common ancestor Abdullah Haji Dossal. The appellants also claim to be in possession of most of the immovable properties, which are subject‑matter of dispute between the appellants and respondents. The first respondent, it is alleged, brought Suit No. 671 of 1961 (which will hereafter be referred to as "the said suit") in the Court of 11 Civil Judge, Karachi, on 20‑3‑1961, against Haji Abdul Latif, the predecessor?-in‑title of the present appellants (who will hereafter be referred to as "the deceased") and respondents Nos. 2 to 9 for partition by meats and bounds, several immovable properties jointly owned and possessed by the parties in that suit. It is alleged that summons in the said suit were not served on the deceased, who was unaware of the proceedings and remained unrepresented in the proceedings. The deceased is said to have met with an accident in January, 1961, and fractured his left leg and while under treatment for his fractured leg in Jinnah Hospital, Karachi, developed cardiac trouble and was removed to the Civil Hospital on 5‑10‑1961, where he died on 9‑10‑1961. It is claimed that from January, 1961, when the deceased met with accident until 9‑10‑1961, when he breathed his last, he was confined to bed and was unable to walk or move about. The said suit "was disposed of by a compromise decree passed by the It‑Civil Judge, Karachi, on 16‑9‑1961, on the basis of a compromise application allegedly presented by the parties in the said suit. It is alleged that the compromise decree in the said suit was obtained by fraudulent means inasmuch as neither the deceased attended the Court on 16‑9‑1961 or on any other date to admit the alleged compromise, nor the alleged compromise application was signed by the deceased. The appellants claim to have acquired knowledge of the said compromise decree in the said suit for the first time when they were served with summons in Suit No. 190 of 1953 instituted by respondent No. 2 in this Court. The appellants accordingly instituted Suit No. 206 of 1964 in the Court of IV Civil Judge, Karachi, for setting aside the compromise decree in "the said suit", but the plaint was ordered to be returned to the appellant for presentation to proper Court for want of jurisdiction in the matter. It appears that before the plaint was actually returned to the appellants by the Court of IV Civil Judge, Karachi, the appellant filed Suit No. 264 of 1966 in this Court after making certain amendments in the plaint of Suit No. 206 of 1964. As the plaint in Suit No. 264 of 1966 was different from the plaint returned for presentation by the 1V Civil Judge, Karachi, in Suit No. 206 of 1964, the fourth respondent raised a preliminary objection to the maintainability of Suit No. 264 of 1966 in his written state?ment filed in the suit. Several issues on the pleadings of the parties were framed in the suit, which, are mentioned in the judgment of the learned Single Judge and which we think unnecessary to reproduce here. We will, reproduce here only issue No. 1, which was decided by the learned Single Judge and as a consequence thereof the suit of the appellant was dismissed as not maintainable. The issue is in the following term :‑ "(1) Is the suit on the plaint filed maintainable (paras 1 and 2 of the written statement of defendant No. 4)."

4. The objection raised by the fourth respondent in his written state?ment, in substance, was that the plaint in Suit No. 206 of 1964 having been returned to the appellants by IV Civil Judge, Karachi, for presenta?tion to the proper Court, it was that plaint alone in original carrying all the endorsement of Court thereon, which could be filed in this Court. The filing of a fresh plaint after making amendments in the body of plaint, according to respondent No. 4, was wholly unauthorised and an abuse of the process of the Court and as such it was not maintainable. This objection of the fourth respondent was accepted by the learned Single Judge, who held that filing of a fresh suit after the plaint was returned to appellant by IV Civil Judge, Karachi, for presentation to the proper Court was bared under the provisions of Order VII, rule 10, Cr. P. C. The learned Single Judge reached this conclusion after examining various provisions contained in C. P. C. and specially the provisions contained in rules ? to 13 of Order IX, rules 10 to 13 of Order VII and section 9, C. P. C. After careful consideration of the reasonings of the learned Single Judge and the arguments of the learned counsel for the respondents, we, with utmost respect, have not been able to persuade ourselves to agree with the view taken by the learned Single Judge in the matter. Our reasons for reaching a different conclusion are set forth in the forthcoming paragraphs.

5. The learned Single Judge in the first place after making a comparison between the provisions of rules 10 and 11 of Order VII and considering rules 2 to 13 of Order IX, C. P. C. reached the following conclusion in paragraph 10 of his judgment :‑ "(10) I have referred to the provisions of Order IX at some length to show that the Legislature has enacted an exhaustive code, covering all possible contingencies, for the disposal of suits. Whenever a suit is dismissed the Legislature has made express provision with regard to the right of filing a fresh suit on the same cause of action, and whenever a fresh suit is barred it has specified the conditions on which a restoration application can be filed. Similarly, the provisions of Order VII contain express provision with regard to a plaintiff's right to file a fresh suit when his plaint is rejected under Order VII, rule 11, C. P. C. Although the rejection of a plaint is different from its dismissal. by virtue of subsection (2) of section 2, C. P. C. an order rejecting a plaint is a decree, therefore it has the same effect as an order of dismissal. Hence the express provisions for filing a fresh suit. But when an order is passed under Order VII, rule 10, C. P. C. returning the plaint for presentation in a proper Court, and I shall for convenience refer to such an order as an order under rule 10, the suit is not disposed of. On the cont?rary, it will be heard and decided by a Court competent td hear it. As the effect of an order under rule 10 is thus to ensure the proper adjudication of the plaintiff's claim and further as such an order is appealable, it is unlikely in the extreme that the Legislature would have intended that the plaintiff could file a fresh suit on the same cause of action during the pendency of an order under rule

10. In this view of the matter, the absence of an "express provision in rule 10 permitting the plaintiff to file a fresh suit is deliberate and is a corollary of the fact that an order under rule 1.0 is not a decree prima facie therefore, as the plaintiffs did not file an appeal against the order returning the old plaint for presentation in this Court it would appear that they had to file the old plaint in this Court." With utmost respect we are unable to agree with the above conclusion of the learned Single Judge. We have not been able to discover any?thing in the language of rule 10 of Order VII, which would tend to show that the right of plaintiff' for filing a fresh suit has been taken away or curtailed. In our humble view, on a fair construction of the language of this rule, the filing of a further suit cannot be held as impliedly barred. The fact that in the event of rejection of a plaint under rule 11, a specified right to file a fresh suit is given under rule 13, while no such provision is made in the event of return of plaint under rule 10 of Order VIII cannot give rise to an inference, in our view, amounting to an implied bar to the filing of a fresh suit by the plaintiff. The existence of such a provision in the former case and absence of it in the latter is quite understandable. While in the former case the Court does adjudicate in some respect on the merits of the suit, no such adjudication at all takes place in the latter case. All that is done by the Court while returning plaint is to say that it had no jurisdiction in the matter. There being no determination of any issue in the suit by the Court it! .such cases and the plaintiff having a right to either present the returned plaint to the Court having jurisdiction or if he so chooses, to file a fresh suit, there was hardly any necessity to make any provision in the code giving right to the plaintiff to file a fresh suit in such cases. On the contrary when the Court rejects a plaint under rule 11 of Order VII, C. P. C. some adjudication by the Court is done in some respect of the contentions raised in the plaint. It was thus, in our view, necessary to make a provision in the nature of rule 13 of Order VII, C. P. C. in those cases, or otherwise, it may not have been possible for a plaintiff, whose plaint is rejected under' Order VII, rule 11, C. P. C. to bring a fresh suit on the same cause of action. Further, in our view, a provision, which tends to bar a remedy or which tends to impose some disability on the right of o a person to have recourse to it, should be very strictly construed an if on the language of the provision, fairly construed, no such conclusion can be arrived at, such interpretation has to be avoided. We have carefully read provision of Order VII, rule 10, C. P. C. and regret to say that we have not been able to discover any bar or disability on E a plaint to file a fresh suit in the event of a plaint being returned to him under Order VII, rule 10, C. P. C. We are firmly of the view that whenever a right to file a suit is barred under the provisions of Civil Procedure Code, it has been invariably so provided in the Code. We may here, with advantage, refer to section 12 of the Civil Procedure Code, which bars a further suit by the plaintiff: The provisions of section 12 of Civil Procedure ,Code are in the following words :‑‑ "Section 12.‑Bar to further suit. Where a plaintiff is precluded by rules from instituting a further suit in respect of such cause of action in any Court, "to which this Code applies." A perusal of this section will show that wherever a plaintiff is precluded from filing a further suit, such bar is to be provided in Rules of Civil Procedure Code. In all standard commentaries on the Code of Civil Procedure the following rules have been quoted as barring a further suit by the plaintiff: "(i) Order II, rule 2.‑Omission to sue in respect of the part of the claim. (ii) Order IX, rule 9.‑Decree against plaintiff by default bars a fresh suit. (iii) Order XXII, rule 9.‑Dismissal of suit under rule 8 bars a fresh suit. (This provision has been substituted in place of the old rule by Ordinance XII of 1972). (iv) Order XXIII, rule L‑Withdrawal of suits without leave of the Court bars a suit." Order VII, rule 10, C. P. C. has no where been referred to as a provision, which bars bringing of afresh suit by the plaintiff in the event of a plaint being returned to him for presentation to the proper Court. In our humble view, if such bar is to be read in the provision of Order VII, rule 10, C. P. C. it should appear in clear, unambiguous and express .` terms in the said provision and if such bar is to be inferred necessarily by implication, then such conclusion must arise irresistibly on the inter?pretation of the language of the provision itself. In our view neither the rule under consideration contains any such express bar nor such a bar can be read in it by necessary implication.

6. The learned Single Judge, in the next place after considering the cases of Sastri v. Yerra Ramamurti and others (1), and Maharashtraya Jnan Kesh Mandal v. Bijjulal (2) reached the following conclusion in paragraph 11 of the impugned judgment :‑ (1) A I R 1957 Andh. Pra. 654????????????????????? (2) A I R 1923 Nag. 182 "I am in respectful agreement with these observations which in my opinion state the settled law, but if the plaintiff is thus entitled to the benefit of Court fees paid by him on the plaint presented in the wrong Court, it necessarily implies that he has to present that very plaint in the proper Court. Additionally, 1 may, observe here that the contrary view would lead to evasion of court‑fees and is to be avoided on that ground. It is true that court‑fees have to be determined with reference to the date of the presentation of the plaint in the proper Court and even other matters like limita?tion have to be determined with reference to that date. But this does not alter the fact that the adjudication by the proper Court is only of the claim contained in the original plaint, therefore even though the suit presented in the proper Court has sometimes been referred to by learned Judges as a different suit, this is with regard to questions like limitation of court‑fees. But as the relief sought by the Plaintiff is decreed or dismissed by the proper Court on the basis of the original plaint, I respectfully agree with the view of the Andhra Pradesh High Court in Sastri v. Yerra Ramamurthi and others and the Nagpur Court in Maharashtraya Jnan Kesh Mandal v. Bijjulal that the suit presented in the proper Court is a continuation of the old plaint. Prima facie this would debar the plaintiffs from filing a different plaint in this Court." With utmost respect the process of reasoning adopted by the learned Single Judge, to hold that a plaint represented before a Court of competent jurisdiction after its return by the Court which had no jurisdiction, is a continuation of the old proceedings and therefore the plaintiff is debarred from filing a different plaint in the latter Court, does not seem to be correct and is against the view consistently taken by almost all the Courts in India. In our view, to determine whether the presentation of a plaint to the Court of competent jurisdiction, is continuation of the old proceeding or not we have to answer a further question namely; whether the presentation of a plaint in a Court which had no jurisdiction G could at all be considered as a "proceeding in the suit"? If answer to this question is in the negative and which we are of the view, is so, then the plaint so presented to the Court having jurisdiction in the matter must be deemed to be a fresh plaint to all intents and purposes are clearly of the view that a plaint presented to a Court lacking jurisdic?tion in the matter is neither a "suit" nor "proceeding in the suit" since the Court to which it is presented cannot adjudicate upon its merit nor can it give any relief to the plaintiff on the basis of such a plaint. Again, in our view, the words "plaint" and "suit" arc not synonymous. Before a plaint could be considered and treated as "suit", it has to be shown that it is properly stamped, the Court to which it is presented has pecuniary and territorial jurisdiction over the subject‑matter, the parties mentioned in the plaint are amenable to the jurisdiction of the Court and the jurisdiction of such Court to try it is otherwise not barred under any law. The absence or presence of any of these ingredients may result in either return of the "plaint" or rejection of the "plaint" under Order VII, C. P. C. in contradiction to the dismissal of the "suit" as provided under Order IX, C. P. C. There is yet another aspect of the matter which has persuaded us to hold that the plaint after it is presented to the Court of proper jurisdiction should be considered to be a fresh proceeding for all intents and purposes. It is not disputed before us that court‑fee recoverable on the plaint returned under Order VII, rule 10 will be according to law prevailing on the date the plaint is filed in the Court having jurisdic?tion in the matter. It is also not disputed that for the purposes of Limitation Act, the plaint shall be deemed to have been presented on the date the returned plaint is represented to. the Court having jurisdic?tion in the matter. Now, as held by the learned Single Judge, if the presentation of the plaint to the proper Court after its return by the former Court is to be considered a continuation of the old proceeding, the demand of court‑fee according to the law applicable on the date of such presentation and the determination of the question of limitation with reference to date of such representation, in our opinion, could be insisted upon. Can in a pending proceeding such a course be adopted? The answer, plainly, is, in the negative. Such course can only be justified if the representation of the? plaint in the Court of proper jurisdiction after its return by the Court which had no jurisdiction, is considered a fresh institution of the suit. We now consider the cases referred to in the judgment of the learned Single Judge and cited before us at bar by the learned counsel for respondent No.

4. In the first referred case, namely Sastri v. Yerra Ramamurthi, the Court was considering a contention advanced on behalf of the defendant in the suit that a fresh Vakalatnama should have been filed alongwith the returned plaint when presented in the proper Court having jurisdiction in the matter. The contention before the Court was that the vakalatnama presented in the Court, which had no jurisdiction, cannot remain in force when the same plaint is represented to the Court having jurisdiction in the matter. The Court, while considering this conten?tion at page 565 of the report, came to the conclusion that the return of the plaint does not amount to termination of the proceedings so as to terminate the Vakalatnama as well. It was further stated that so long as the suit was not disposed of, the Vakalatnama granted for that purpose will continue as long as the suit was pending. However, earlier to this observation. the learned Single Judge, who decided the above case, made the following observations at page 565 paragraph 3:‑ "It is true that the proceedings before the District Munsif are not a continuation of the proceedings before the subordinate Judge." It will thus be noticed that while Vakalatnama was held to be in force on the ground that the purpose for which it was granted was not over, namely the adjudication in the suit had not taken place and the proceedings after representation of the plaint were held to be pending; it was clearly found that the plaint so represented before a Court of competent jurisdic?tion, could not be held to be a continuation of the old proceedings before the Court which had no jurisdiction in the matter. In the second case, namely Maharashtraya Jnan Kesh Mandal v. Bijjulal also validity of a Vakalatnama after representation of the returned plaint to the proper Court was held to continue by Hallifax A. J. C., but the further observation of the learned Judge in that case that the proceeding after representation of the returned plaint should be considered as continuation of the old plaint were not correct and the cases relied upon by the learned Judge did not support the proposition. The cases referred to by the learned Judge, in which it was held that no fresh Vakalatnama was necessary, related to‑ (i) proceedings in an application for leave to appeal to the Privy Council Shah Mukhun Lal v. Sree Kishan Singh (8 W R 92); .(ii) proceedings for restoration of a suit dismissed for default Raja Sutto Churn Ghossal Bahadoor v. Suroon Chtatder‑dass (12 W R 465); (iii) restoration of an appeal dismissed for default Raghunath Singh Raghubir Sahai (1833) 15 All. 55, and (iv) appearance of the same counsel in execution proceedings Sadashlr Ganpatrao v. Vitthaldas Nanchand (1896) 20 Born. 1900. The third case referred to by the learned Single Judge in the impugned judgment is Bimala Prasad Mukerji v. Lal Moni Devi and others A I R 1926 Cal.

355. In that case the question before the Court was; what amount of court‑fees was payable on a plaint returned to the plaintiff for presentation to the proper Court when it is presented to the Court having jurisdiction in the matter. The Court on a final analysis came to the conclusion that the plaintiff? though entitled to credit the amount of court‑fees paid by him initially on the plaint which was returned to him for presentation to the proper Court, the amount of court‑fees payable on such plaint was to be calculated according to the law applicable on the date the plaint is presented to the proper Court. This finding in the case was based upon the reasoning that the suit in such a case must be taken to be instituted on the date the plaint is represented to the proper Court having jurisdiction in the matter, which in turn proceeded upon the rule laid down by another Division Bench of the same Court in an earlier case Hedlet Khasia v. Karan Khasiani (1). It will thus be seen that out of the three cases noticed by the learned Single Judge in the impugned judgment, two cases which were decided by Division Benches took the view that the plaint when represented to the proper Court after its return by the former Court, were not to be treated continuation of the old proceedings and that the .date of institution in such case is the date on which the plaint is presented to the proper Court. In addition to the above cases referred by the learned Single Judge in the impugned judgment the learned counsel for respondent No. 4 cited before us Jethabhai versey & Co. v. Amarchand Madhavji & Ca. (2) and Narendrabhooshan v. Berhampur Oil Mills (3), to support the view taken by the learned Single Judge. In the case of Jehanbhal Versey & Co. v. Amarchand Madhavji & Co. the lower Court, in which the plaint was represented, refused to condone the delay under section 14 of the Limitation Act on the ground that the plaint itself did not contain the grounds on which time was sought to be excluded under section 14 of the Limitation Act; but in appeal the Court held that the circum?stances entitling the plaintiff to the benefit of section 14 appeared on the face of the record, which was evident from the endorsements made by the Court while returning the plaint for presentation to the proper Court. 1t was accordingly held that it was not necessary to amend the returned plaint to include the grounds on which exclusion of time under section 14 of the Limitation Act, was claimed. The other case reported (Narrendabhooshan v. Berhampur Oil Mills) cited by the learned counsel for the respondent, is on the point that in addition to the time, when the plaint was ordered to be returned to the plaintiff by a Court such further time as may be consumed in the ministerial act of making the endorsement on the plaint before it is actually returned to the plaintiff or presentation to the proper Court should also be excluded. We are unable to find. anything in the aforesaid cases, which lend support to the view canvassed before us that the plaint on representation to the proper Court should be held to be in continuation of the old plaint. We will now refer to some of the cases in which the Courts have clearly taken the view that the plaint on being represented to a Court of proper jurisdiction after its return is anew suit for all intents and purposes and shall be deemed to have been instituted on the date the plaint is so represented to the proper Court. These cases are as under :‑ (i) Ram Kishun Rai v. Ashirbad Rai A I R 1950 Pat. 743. (1) (1911)15CLJ241?????? (2)821 C856 (3) A I R 1933 Cal. 91.4 The learned Judges of the Division Bench which decided this case after reviewing exhaustively the case‑law both for and against the proposition whether a plaint represented after its return is a continuation of the old proceeding or not summed up as under at page 475 of the report :‑ "(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 XXIII, 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 VII. 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 reference 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." (ii) Madha Ram v. Dharam Singh A I R 1930 Lah.

394. The learned Judges in this case after considering the varying contentions of the parties reached the following conclusion at page 395; "Order VII, rule 10 expressly provides that when a suit is instituted in a Court which has no jurisdiction to try it, then the Court must return the plaint to the plaintiff for presentation to the Court having jurisdiction. I am unable to construe this provision to be limited to cases where the Court is incompetent to try the suit by reason of the nature of the subject‑matter and not on account of the value thereof being beyond its jurisdiction or even the subject matter thereof being beyond the territorial jurisdiction of the Court, as, for instance, merely to a case where a suit which should have been instituted in a revenue Court is instituted in a civil Court or vice versa. This was the contention of the learned counsel for the respondent but in my opinion, the provisions of Order VII, rule 10 are wide enough to cover all cases where the Court is unable to entertain the suit for want of jurisdiction whatever may be nature of the objection to its jurisdiction. I hold, therefore, that the date of the institution of the suit must be deemed to be 3rd October, 1922, when the plaint was presented to the subordinate Judge having jurisdiction to try the same." (ii) Mohini Mohan Das and others v. Kunjabehari Das A I R 1943 Cal.

450. The Division Bench in this case recorded its conclusion at page 451 to the following effect:‑ "When a plaint is filed in a new Court after being returned by another, it is a new suit to all intents and purposes, and not merely a continua?tion of the old one." ?In addition to the above cases, the learned counsel for the appellants also invited our attention to Ramdutt v. E. D. Sassoon & Co. (I), Hira?chand Succaram Gandhy & Ors. v. G.

1. P. Railway Co. t2) and Firm Jiwan Ram Ramchandra v. Jagernath Sahu (3). The‑ first two of these cases were noticed by the learned Single Judge in the impugned judgment, but he distinguished the first one and disagreed with the second. The last‑mentioned case cited by the learned counsel for appellant proceeds on the same reasoning as the cases referred‑ by us earlier. Except A 1 R 1929 P C 103, all the above cases referred by us and those cited by the learned counsel for appellant were decided by Division Benches of different high Courts of India, before and after Partition. An analysis of the above‑cited cases will show that the Courts all over India before and after Partition have consistently taken the view that a plaint on being presented to the Court of proper jurisdiction after its return by the Court which had no jurisdiction, to all intents and purposes is a new and a fresh plaint. The fact that the plaintiff is entitled to claim exemption under section 14 of the Limitation Act, in the event of claim having become barred by Limita?tion in the meanwhile, or that the plaintiff is entitled to the credit of the court‑fees initially paid on the returned plaint, will neither make such plaint a continuation of the old proceedings for this fact by itself is sufficient to spell a bar on the plaintiff's right to present a fresh plaint or a different plaint in the Court of proper jurisdiction, if he so chooses. The only effect, in our view, if the plaintiff so chooses to file a fresh plaint before the latter Court instead of the returned plaint, will be, that he will not be entitled to claim adjustment of the court‑fee initially paid on the returned plaint and will also have to specifically plead the grounds for claiming exclusion of time under section 14 of the Limitation Act, if the suit in the meantime has become barred by limitation. This he may not be required to do in case he elects to file the plaint returned to him by the Court for presentation to the proper Court because of the endorse?ment of former Court on the plaint. If the view taken by the learned Single Judge that the plaint so presented after being returned to the plaintiff is the continuation of the old suit, then the question of extending the provision of section 14 of the Limitation Act, or determination of the payment of the court‑fees according to law applicable on the date of representation of such a plaint, should not arise at all. These considerations can only be relevant if the represented plaint is to be considered as a fresh institution of the suit. (1) A 1 R 1929 P C 103??? (2) A I R 1928 Bom.421 (3) A I R 1937 Pat. 495

7. The learned counsel for respondent No. 4, then attempted to support the judgment of learned Single Judge on the ground that the order r.‑turn?ing the plaint under Order VII, rule 10, C. P. C. passed by a Court being appelable under the Code, the filing of a fresh suit should be held barred by implication. We find no substance in the contention of the learned counsel. Provision for filing an appeal against such an order is intended to provide a safeguard to a plaintiff against the order wrongly passed returning a plaint to the plaintiff for presentation to the proper Court; as in the absence of such a provision, the plaintiff would be left with no remedy against such an order and be compelled either to present the same plaint to another Court in accordance with the order of the Court or file a fresh suit. In our view, the existence of the provisions for filing an appeal against an order returning the plaint under Order VII, rule 10, C. P. C. could not impliedly be construed as debarring the plaintiff from filing a fresh suit.

8. We enquired from the learned counsel for respondent No. 4 if under the Code of Civil Procedure a plaintiff could file more than one suits on the same cause of action. The learned counsel candidly stated before us that the filing of more than one suit on the same cause of action is not barred under the provisions of the Code but that the two suits cannot simultaneously proceed, as provided under section 10, C. P. C. On this analogy too, we are inclined to hold that if a plaintiff can file two suits simultaneously on the same cause of action, there is no reason to hold that in the event of plaint having been returned to him for presentation to the proper Court, he cannot institute a fresh suit on the same cause of action. The learned counsel for the appellant invited our attention to the case of Varada Pi!!ai v. Thillai Govindaraja (1), and Deokinandan Pandey v. Ram Chandra Tewari (2). Both these cases were cited before the learned Single Judge but he did not agree with the view expressed there?in and also distinguished them. In these cases the plaint on being returned to a plaintiff, was represented by him to the same Court after making amendment and relinquishing a part of the plaint in order to bring it within the jurisdiction of the Court which returned the plaint, Objections were taken to the re‑presentation of the plaint on the ground that the amendment having been made unauthorisedly and without permission of the Court, the plaint was not maintainable. On both the occasions the Court overruled the objections and held that a plaintiff to whom the plaint was returned for presentation to the proper Court had the right to amend the plaint and to represent it to the same Court after relin?quishing a part of the relief so as to make the suit cognizable by that Court. Apart from the cases cited by the learned counsel for the appellant the right to amend the plaint after it is returned to a plaintiff by the Court under Order VII, rule 10, C. P. C., and to represent the same after such amendments to same Court was also accepted in the case of Madho Ram v. Dharm Singh (3), which we have referred earlier in the judgment on another point and in Shadt Chandarya v. Pitta Seethna and other (4), and A I R 1940 Mad. 689 (which is a decision on appeal from A I R 1939 Mad. 397). In A.1 R 1939 Mad. 397, a Single Judge of Madras High Court while accepting the right of a plaintiff to amend the plaint after it is returned to him and to represent the same to the Court which returned it had further : held that such represented plaint to the same Court should be held td be in continuation of the original proceeding. The appellate judgment in A I R 1940 Mad. 689 while agreeing with the first part of judgment relating to amendment of plaint and its representation to the same Court, reversed the judgment in so far as it held that the represented' plaint should be held to be in continuation of the old plaint. We may also mention here the case of Debi Sahai v. Ganga Sahai (5). In this case the plaintiff after return of the plaint by Court changed the valuation and amended the plaint and represented it to the Court which had returned it. The appeal objection was raised that amendment by the plaintiff in the plaint of his own after return of plaint was not permissible and amounted to abuse of the process of Court. The Court overruled the objection and held at page 750 of the report under :‑ (1) A I R 1931 Mad. 8 ???????????????????????????????????? (2) A I R 1938 All. 17 (3) A I R 1930 Lah. 394 ???????????????????????????????? (4) A I R 1939 Mad. 397 (5) A I R 1954 All. 749 "(8) There is no question of an abuse of the process of Court involved in the case, seeing that under the law the plaintiffs are not prevented from amending the plaint which had been returned to them and to represent it to the Court which would have jurisdiction to entertain the amended plaint." Mr. G. Raymond, the learned counsel for the respondent No. 4 did not question the correctness of these decisions but contended that since the plaints after amendment were represented to the same Court, it could not be objected to. We failed to see any difference in the two situations. If a plaintiff can represent a plaint returned to him to the same Court after making amendments therein what objection can 'possibly arise if it is presented after making amendments to the Court which had jurisdiction in the matter. To us there appears no difference in the two situations. Mr. G. Raymond, learned counsel for respondent No. 4, lastly contended that the provisions contained in Order VII, rule 10, C. P. C. are mandatory in nature and have to be necessarily followed. The emphasis was laid by him on the word "shall" used in rule 10 of Order VII, C. P. C. and contended that the returned plaint has necessarily to be filed in the proper Court by the plaintiff in all events. We enquired from Mr. Raymond, if besides returning the plaint, the Court could pass any other order under Order VII, rule 10, C. P. C. The learned counsel conceded that besides passing order for return of plaint no other order could be made but contended that while returning the plaint, the Court shall make all those endorsements which are provided for in sub‑rule (2) of rule 10 of Order VII, C. P. C. After considering the contention of the learned counsel we have reached the conclusion that the word "shall" has been used with reference to the powers of the Court which has reached the conclusion that it had no jurisdiction in the matter. The word "shall" implies that after reaching this conclusion, the Court cannot take any other steps except to return the plaint to the plaintiff: The word "shall`.., has no reference to the act to be performed by the plaintiff after the plaint has been returned to him. There is nothing in rule 10 of Order VII, C. P. C. which compels a plaintiff to necessarily present the same plaint to the Court having jurisdiction in the matter after it is returned to him by a Court on the ground that it had no jurisdiction in the matter, if he chooses, not to do so. In view of the above discussion we have reached the conclusion that after a plaint is returned to a plaintiff by a Court under Order VII, rule 10, C. P. C., he may adopt any of the following courses :‑ (i) he may challenge the order, returning the plaint for presentation to the proper Court by filing an appeal against such order, or (ii) he may present the same plaint after its return to him to a Court having jurisdiction in the matter, or (iii) he may amend the plaint by giving up a part of the relief or reduce the valuation so as to make it cognizable by the Court which returned the plaint and then represent the same to the same Court or amend the plaint and present it before a Court having jurisdiction in the matter, or (iv) he may file a fresh suit in the Court having jurisdiction in the matter. We also hold that there is no bar either under Order V1I, rule 10, C. P. Q or in any other provision of the Code which precludes the plaintiff from filing a fresh suit in case the plaint filed earlier in a Court is returned on the ground that the Court had no jurisdiction in the matter. We further hold that a plaint filed in a Court of proper jurisdiction after: having been returned by another Court on the ground that the former Court had no jurisdiction in the matter is a fresh suit to all intents and purposes and is not merely a continuation of the old proceedings in the former Court.

9. In view of our above conclusion we accept the appeal, reverse the order of the learned Single Judge on issue No. I and remit back the case for further proceedings according to law from the stage it was dismissed by the learned Single Judge. In the circumstances of the case we will leave the parties to bear their respective costs. M. Y. M.?? Appeal accepted.