P L D 1957 (W (PLP)

J. ORTCHESON. J.‑

The facts of this case are that on the 23rd of January 1954, one Ghulam Rasul Shah sold the land in dispute, measuring 39 kanals 9 marlas, in favour of Haji Faiz Muhammad defendant for an ostensible considera tion of Rs. 1,

200. On the 22nd of January 1955, Riaz Husain Shah plaintiff sued to pre‑empt the sale, valuing the suit for purposes of Court‑fee and jurisdiction at Rs.

15. After the relevant fard khalis munafa had been filed, however, the Court held the jurisdictional value, on the basis of fifteen times the net profits, to be Rs. 1,087‑1‑9, and as the suit so valued was beyond his pecuniary jurisdiction he moved the District judge to have it transferred. Oil the 29th of March 1955, the District judge transferred the suit to the Court of the Senior Civil Judge, Muzaffargarh. Some issues were struck and the case was fixed for evidence, but on the appointed date the defendant raised two additional objections and the following preliminary issues were framed (1) Whether the suit has not been validly transferred to this Court and what is its effect ? (2) Whether the suit is within time ? By order dated the 14th of March 1956, the learned Senior Civil judge dismissed the suit, holding that the District Judge had no jurisdiction to pass an order of transfer and that the suit was time‑barred, the Court‑fee having been made up after the limitation had expired. Against the above findings of the learned Senior Civil Judge, an appeal was filed in the Court of the learned District Judge, Multan, who accepted it, holding that the ' order of transfer was valid. In view of that finding, the learned District judge did not consider it necessary to go further into the question of limitation, it being not disputed that if the suit was validly transferred the date of its institution was that of the presentation of the plaint in the first Court. The case was accordingly remanded under Order XLI, rule 23 of the Code of Civil Procedure. Against the above order of the learned District Judge, Faiz Muhammad defendant has come up in second appeal to this Court. The first question for decision is whether the suit was validly transferred by the learned District judge from the Court in which it was originally instituted to that of the Senior Civil judge, or more specifically, whether a suit instituted in a Court having no jurisdiction to try it can be transferred. Mr. Karam Elahi Chauhan takes his stand on the language of section 24 of the Code of Civil Procedure which, inter alia, provides that the High Court or the District Court may at any stage withdraw any suit, appeal or other proceedings pending in any Court subordinate to it, and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. According to Mr. Chauhan, significance is to be attached to the fact that whereas the Court to which the case is transferred must be competent to try or dispose of it, no such restriction is specifically imposed in respect of the first Court. In other words, he argues that it is immaterial whether the first Court has or has not jurisdiction to try the case. This point has been the subject of a long chain of authorities and, with one exception, the view consistently taken has been that before a valid order for transfer can be passed the suit or other proceeding must have been pending in a Court competent to try it. The solitary contrary decision above referred to is Narain Das Gopal Das v. (Firm) Khunni Lai Lachms Narain (A I R 1934 All. 569) and, being either unaware of or ignoring all other authorities except those cited as Amir Chand v. Buti Shah (A I R 1930 Lah. 195) and Mst. Hasan Begum v. Mst. Zainab Bibi (P L D 1955 Lah. 555) the learned District judge adopted the view expressed in the decision in question in spite of the fact that the Lahore view was opposed to it. The facts of Narain Das Gopal Das's case are that the firm of that name carried on the business of commission agent at Agra while the defendant firm, Khunni Lal Lachmi Narain, carried on business at Bareilly. Certain forward contracts were entered into between the parties, but there was a difference of opinion as to where the transactions in question took place, Messrs. Khunni Lal Lachmi Narain contending that the venue was Bareilly, while according to Messrs. Narain Das Gopal Das the contracts were entered into in Agra. Cross‑suits were filed, one in Bareilly and the other in Agra, and Messrs. Narain Das Gopal Das applied to the Allahabad High Court for transfer of the suit pending against them at Bareilly to Agra. Counsel for the opposite party raised the objection now advanced in the present case, namely, that an order for transfer of a suit under section 24 of the Code of Civil Procedure can be made only when the suit sought to be transferred has been instituted in a Court having jurisdic tion to try the same, and argued that since according to the contention of the defendant in one of the two suits the Bareilly Court had no jurisdiction to entertain that suit, no order of transfer could be passed. In support of his con tention counsel cited seven authorities, namely, Purna Chandra v. Dhone Kristo (A I R 1914 All. 351); Askaran Baid v. Bhola Nath (A I R 1923 Pat. 138) ; Ram Kumar Sheo Chand Rai v. Tula Ram Nathu Ram (A I R 1923 Pat. 138) ; Pachaoni Awasthi v. Illahi Bakhsh (I L R 4 All. 478). ; Ledgard v. Bull (I L R 9 All. 191) ; Bibi Sairah v. Mst. Golab Kuar (A I R 1919 Pat. 345) and Arnir Chand v. Buti Shah (2). The learned Judge held that the first three of the above decisions had no application to the case before him on the ground that they related to section 22 and not to section 24 of the Code of Civil Procedure. With very great respect, I cannot agree that the decisions in question were irrelevant to the case pending before the learned judge. The difference between sections 22 and 24, Civil P. C. is only this, that whereas the former is limited to those cases in which a suit may be instituted in any one of two or more Courts, section 24 is more general in its application. It is, therefore, obvious that it is immaterial for the purpose of considering the validity of an order of transfer whether the application for such transfer was made under section 22 or section 24, Civil P. C. The principle involved in the cases held by Iqbal Ahmad, J. in the Allahabad case to be irrelevant was exactly the same as that in the case before him, namely whether, if a Court has no jurisdiction to try a suit, that suit can be validly transferred to another Court. I am also with respect, unable to accept the argument advanced by the learned judge that "if the legislature had intended that section 24 (Civil P. C.) should be confined in its operation only to cases pending in Courts having juris diction, nothing would have been easier than to use the words 'pending in a Court of competent jurisdiction in section 24 words which are not there". Sections 15 to 20 of the Code of Civil Procedure relate to the forum of suits, and when reference is made in section 24 to a suit pending in a Court, it is assumed that the provisions of those sections have been followed and in particular that the suit has been instituted in a Court having both pecuniary and territorial jurisdiction to try it. The reason why clause (b) of sub.. section (1) of section 24, Civil P. C. merely requires that a suit should be pending in any Court subordinate to the High Court or the District Court, without specifically stating that that Court should be competent to try or dispose of it is that the provisions of the Code of Civil Procedure are assumed to have been observed at the time of institution of the suit, the case being consequently duly pending at the time the application for transfer is made. With respect to the Court to which the case is to be transferred, on the other hand, it was clearly necessary to specify that it should be competent to try or dispose of the suit, since otherwise the transferring Court would be free, in the improbable event of its being so minded, to entrust it to a Court without jurisdiction. The case Pachaoni Awasthi v. Ilahi Bakhsh does not specifically deal with the point now in dispute, and may be disregarded. With respect to Ledgard v. Bull, a Privy Council case, Iqbal Ahmad, J., while conceding that their Lordships of the Judicial Committee had summarised the decision of the Calcutta High Court in the following words :‑ "The Superior Court cannot make an order of transfer of a case under section 25 (now section 24), Civil P. C. unless the Court from which the transfer is sought to be made has jurisdiction to try it." went on to hold that the above observations must be read in the light of 'the facts of the case decided by the Calcutta High Court and do not lay down as a general proposition that the power of withdrawal and transfer given by section 24, Civil P. C. can only be exercised if the suit, appeal or other proceeding has been instituted and is pending in a Court that has jurisdiction over the same. With very great respect, I am unable to see any justification for so limiting the principle laid down in the Privy Council decision. The facts on which that decision is based were that the suit in dispute was one relating to infringement of a patent and was instituted in the Court of the Subordinate judge at Rungpore, who admittedly had no jurisdiction to deal with it, such suits being triable only in the principal Court of original jurisdiction, namely, that of the District Judge. The parties applied to the District Judge to withdraw the suit from the Court of the Subordinate Judge and to try it in his own Court. An order was accordingly passed in the following terms :‑ "That the case be transferred from the Subordinate Judge's Court to the file of this Court, and the date will be fixed hereafter." Referring to the decision of the Calcutta High Court in Peary Lall Mozomdar v. Komal Kishore Dassia (I L R 6 Cal. 30), to the effect that a superior Court cannot make an order of transfer of a case under section 25 (now section 24) of the Code of Civil Procedure unless the Court from which the transfer is sought to be made has jurisdiction to try it, their Lordships of the Privy Council entirely approved of that decision. In my opinion, therefore, the decision in Ledgard v. Bull was intended to be of general application, and not to be limited to the facts of the particular case out of which the decision arose. Similarly, Iqbal Ahmad, J. held that the decisions in Bibi Sairah v. Mst. Golab Kuar and Amir Chand v. Buti Shah did not lay down any principle of general application, but again, with great respect, I am compelled to disagree, it appearing to me clear that both the decision in question are of general and not of limited application. For the above reasons I respectfully dissent from the view expressed in Narain Das Gopal Das's case and follow that expounded in Ledgard v. Bull and other authorities. The learned District Judge in the present case interpreted a remark of Kaikaus, J. in Mst. Hasan Begum v. Mst. Zainab Bibi as meaning that even when the first Court has no jurisdiction an order of transfer can be passed, but this inter pretation is unjustified. The facts were that a suit was instituted in the Court of a Civil Judge 4th Class, the pecuniary limit of whose jurisdiction was Rs. 1,

000. Finding that the plaintiffs were liable to pay Court‑fee on Rs. 2,000 and holding that he had consequently no jurisdiction to try the suit, the Civil judge directed that the file be sent to the District Judge for being transferred to a Civil judge having jurisdiction. Commenting on that order, Kaikaus, J. remarked:‑-- "He (the Civil judge) had found that the value for Court fee was Rs. 2,000 and he was bound, therefore, to find that he had no jurisdiction to try the suit, his pecuniary limit being Rs. 1,

000. He has not returned the plaint for presentation to a proper Court having sent it to the District judge, but he may well have done so, so that the plaint in a suit, which may, in fact, have been triable by him, may have been returned." The learned District judge has interpreted the above remark as follows :‑ "If the High Court had been of the opinion that the plaint in a suit pending in a Court having no jurisdiction to try it could not but be returned for presentation to proper Court, then the words 'but he may well have done so' could not have been used". The learned District judge has misunderstood the meaning of the words underlined above, Kaikaus, J. not having intended by them to express any opinion on the legal aspect of the matter, but merely stating, as a matter of factual narration, that the plaint might have been returned. By no stretch of imagination can the passage cited be held to support the view that a valid order of transfer can be passed when the first Court has no jurisdiction. Another feature of this case requires consideration. The learned District judge refused to follow Amir Chand v. Buti Shah on the ground that it did not appear in any law report published under the authority of the Provincial Government. It is true that, as remarked by the learned District judge, section 3 of the Law Reports Act (XVIII of 1875) lays down that no Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case other than a report published under the authority of any Provincial Government, but the fact remains that findings of this Court published in other Law Reports are at the very least expressions of judicial opinion which are entitled to respect, and any Subordinate Court which chooses to disregard such an expression of opinion merely because it is published in the authorised Law Reports is treading on dangerous ground. Mr. Karam Elahi Chauhan, while conceding that the weight of authority is against him, attempted to draw a distinction between those cases in which the first Court has ab initio no jurisdiction and those in which it has jurisdiction in the first instance but subsequently loses it by reason of an increase in the value of the subject‑matter and consequently of the jurisdictional value. In support of this proposition he cited authorities laving down that where a Court passes a preli minary decree, as for example in a suit for rendition of accounts, but the amount eventually found due is beyond its pecuniary jurisdiction, the validity of the preliminary decree is not affected and the Court is competent to have the case transferred to another Court. The principle so enunciated cannot, however, be availed of in the present case since the value of the suit for purposes of jurisdiction, if properly fixed in the first instance, would have been such as to bar the jurisdiction of the Court from the outset. In other words, on the true valuation of the suit, the Court had ab initio no jurisdiction. Another point raised by the learned District Judge in the course of his order is that the learned Senior Civil judge was wrong in taking as a basis for the valuation of the suit the net profits for the harvests of Kharif 1953 and Rabi 1954. On this question the learned District judge has clearly mis directed himself. As already noticed, the suit was filed in January 1955. The crop sown in Kharif 1954 had, therefore, not been reaped at the time of the filing of the suit, and could not be taken into consideration in assessing the net profits for the past one year. The harvests to be adopted were, therefore, working backwards, those of Rabi 1954 and Khan f 1953, as was correctly done by the learned Senior Civil Judge. For the above reasons, I accept this appeal with costs, holding that the suit could not validly be transferred from the Court of the Civil judge 4th Class, Alipur. The question of what alternative action, if any, can now be taken in the matter is left open. Z.A.S./A.H. Appeal accepted.