# Vidya Shanker Tiwari v. Surya Kant Tiwari and Ors

- **Citation:** (2013) 3 ILRA 1174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-02
- **Case number:** Civil Misc. Writ Petition No.1681 of 2013
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-shanker-tiwari-v-surya-kant-tiwari-and-ors-42682
- **Pages:** 9

## Headnote

C.P.C.-Order
VII
Rule
10
readwith
Section
24(5)-
Transfer
of
suit
by
exercising Power under Section 24consequent to amendment of plaintenhancing pecuniary jurisdiction-neither
issues framed-nor the parties lead any
evidence-held-District Judge wrongly
exercised its jurisdiction-provisions of
Order 7 rule 10 can not be ignored-the
moment amendment allowed pecuniary
jurisdiction exceeded-effective from the
date
of
institution
of
suit-civil
judge(J.D.)
ceased
with
every
jurisdiction-except taking recourse to
return plaint for presentation before the
Court
having
pecuniary
jurisdictiontransfer order set-a-side.

Held: Para-32
The provision of Order VII Rule 10 CPC
are quite specific and deal with a
circumstance which has arisen in the
present proceedings where when the
amendment was allowed to increase the
valuation of the suit it related back to
the date of institution of the suit before
a Court which had no jurisdiction to try
the suit and neither the pleadings were
completed nor evidence was led hence it
was not a case of transfer to proceed
from the stage after evidence had been
led. The plaint having not been properly
3 All] Vidya Shanker Tiwari Vs. Surya Kant Tiwari and Ors.
1175
presented in the Court where the suit
ought to have been instituted was
required to be returned to the plaintiff
for presentation before the competent
court having pecuniary jurisdiction.

Case Law discussed:
LAWS (ALL)1977 -9-7; LAWS(ALL)1990-12-8;
(2012) 6 SCC 348; (2012) 5 SCC 759; (2012) 6
SCC 348; (2012) 5 SCC 759; 2003(1) ARC
515; 2005(23) LCD 749; 2010 (4) ALJ 168;
AIR 1960 Patna 244; AIR 1965 SC 1449; AIR
1978 All 106.

## Text

1174 INDIAN LAW REPORTS ALLAHABAD SERIES
made and the money deposited by the
highest bidder Shyamveer in the account of
Gram Sabha, copy of the deposit receipts of
Rs.3,200/- is also on record. The charge
sheet submitted in the case by the
Investigating Officer has not taken into
account the aforesaid documents which
were stated to be shown by the applicant
no.1 who was the village Pradhan to
Investigating Officer of the case and in a
most mechanical manner, the investigation
was conducted by the Investigating Officer
who on the basis of statements of police
witnesses a charge sheet was submitted by
him and no independent witness has come
forward to support the prosecution story.
The learned Magistrate who has taken
cognizance of the offence against the
applicants has also in a most mechanical
manner and summoned the applicants for
trial for the aforesaid offence. When the
discharge application was moved by the
applicant that too was rejected by the
learned Magistrate without appreciating the
fact that there was permission from the
S.D.M for the public auction and the money
in question has also been deposited by
Shyamveer, the highest bidder in the
account of Gaon Sabha, the learned
Magistrate has rejected the discharge
application and passed the order dated
20.7.2001 which is not sustainable in the
eyes of law.

13. Hence in view of the above
discussions, no offence against the
applicants is made out on the basis of
impugned charge sheet. Thus, the entire
proceedings based on the impugned
charge sheet and the consequential
proceedings are hereby quashed.

14. The petition stands allowed.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2013

BEFORE
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No.1681 of 2013

Vidya Shanker Tiwari

 ...Petitioner
Versus
Surya Kant Tiwari and Ors...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Siddharth Nandan

C.P.C.-Order
VII
Rule
10
readwith
Section
24(5)-
Transfer
of
suit
by
exercising Power under Section 24consequent to amendment of plaintenhancing pecuniary jurisdiction-neither
issues framed-nor the parties lead any
evidence-held-District Judge wrongly
exercised its jurisdiction-provisions of
Order 7 rule 10 can not be ignored-the
moment amendment allowed pecuniary
jurisdiction exceeded-effective from the
date
of
institution
of
suit-civil
judge(J.D.)
ceased
with
every
jurisdiction-except taking recourse to
return plaint for presentation before the
Court
having
pecuniary
jurisdictiontransfer order set-a-side.

Held: Para-32
The provision of Order VII Rule 10 CPC
are quite specific and deal with a
circumstance which has arisen in the
present proceedings where when the
amendment was allowed to increase the
valuation of the suit it related back to
the date of institution of the suit before
a Court which had no jurisdiction to try
the suit and neither the pleadings were
completed nor evidence was led hence it
was not a case of transfer to proceed
from the stage after evidence had been
led. The plaint having not been properly
3 All] Vidya Shanker Tiwari Vs. Surya Kant Tiwari and Ors.
1175
presented in the Court where the suit
ought to have been instituted was
required to be returned to the plaintiff
for presentation before the competent
court having pecuniary jurisdiction.

Case Law discussed:
LAWS (ALL)1977 -9-7; LAWS(ALL)1990-12-8;
(2012) 6 SCC 348; (2012) 5 SCC 759; (2012) 6
SCC 348; (2012) 5 SCC 759; 2003(1) ARC
515; 2005(23) LCD 749; 2010 (4) ALJ 168;
AIR 1960 Patna 244; AIR 1965 SC 1449; AIR
1978 All 106.

(Delivered by Hon'ble Sanjay Misra, J.)

1. This petition is directed against
the order dated 01.10.2012 (annexure 5 to
the petition) passed by the District Judge,
Deoria in Transfer Application no. 327 of
2012 (Surya Kant Tiwari Vs Vidya
Shanker Tiwari and others).

2. The petitioner herein was
defendant in a suit filed by the plaintiff
respondent no. 1for permanent injunction
and demolition before the Civil Judge
(Junior Division), Deoria. An exparte
injunction
order
was
granted.
The
petitioner defendant filed his written
statement on 05.07.2012 along with his
objection to the temporary injunction
application raising a dispute regarding
valuation of the suit. It was stated by him
that the plaintiff respondent had valued
this property in suit at Rs. 15,000/-
whereas the valuation of the property was
more than five lakhs. He stated that the
pecuniary jurisdiction of the Civil Judge
(Junior Division) was Rs. 25,000/- and
since the property in suit was valued at
more than rupees five lakhs the suit was
not maintainable before the Civil Judge
(Junior Division) who had no pecuniary
jurisdiction to entertain a suit valued more
than Rs.25,000/-. The plaintiff respondent
appears to have admitted the fact of under
valuation of the suit property hence he
filed an amendment application to change
the valuation of the suit property to Rs.
5,20,000/- . The said application was
allowed by the Civil Judge (Junior
Division) on 24.09.2012.

3. The plaintiff respondent no. 1
then filed a Transfer Application no. 327
of 2012 (Surya Kant Tiwari Vs Vidya
Shanker Tiwari and others) under Section
24 CPC before the District Judge, Deoria
who in turn invited comments from the
Civil Judge (Junior Division). The Civil
Judge (Junior Division) on 27.09.2012
sent a letter to the District Judge, Deoria
that after the valuation of the suit property
has been amended in the plaint he had no
pecuniary jurisdiction. The District Judge
on the said comments has passed the
impugned
order
dated
01.10.2012
transferring the case from the court of
Civil Judge (Junior Division), Court no.
10, Deoria to the court of Civil Judge
(Senior Division), Court no. 18, Deoria
and as such allowed the Transfer
Application no. 327 of 2012 filed by the
plaintiff respondent. The impugned order
dated 01.10.2012 is quoted here under:-

"is'k gqvkA

lquk ,oa izHkkjh vf/kdkjh dh vk[;k dk
voyksdu fd;kA vkosndx.k }kjk ;g varj.k izkFkZuk
i= okn la[;k 2163 lu~ 2009 tks O;ogkj
U;k;k/kh'k] tw0 fM0 d{k la[;k 10 nsofj;k ds
U;k;ky; esa yafcr gS] dks O;ogkj U;k;k/kh'k]
,l0Mh0 d{k la[;k 18] nsofj;k ds U;k;ky; djus
gsrq izLrqr fd;k x;k gSA vk/kkj ;g fy;k x;k gS
fd okn dk ewY;kadu 520000@& gks x;k gS vkSj
mDr U;k;ky; dks okn ds fuLrkj.k dk {ks=kf/kdkj
ugh gSA

lqukA lquk vk/kkj i;kZIr gSA vr% izkFkZuk i=
Lohdkj fd;k tkrk gS rFkk okn la[;k 2163 lu~
2009 tks O;ogkj U;k;k/kh'k] tw0fM0 d{k la[;k 10
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
nsofj;k ds U;k;ky; esa yfEcr gS] dks fof/kvuqlkj
fuLrkj.k gsrw O;ogkj U;k;k/kh'k ,l0fM0 d{k la[;k
18] nsofj;k ds U;k;ky; esa varfjr fd;k tkrk gSA

vUrj.k dh lwpuk foi{kh@fo}ku vf/koDrk
dks nsus ds i'pkr vxzsrj dk;Zokgh dh tk;A

4. The petitioner defendant feeling
aggrieved against the impugned order dated
01.10.2012 has filed this petition inter-alia
stating that the impugned order was passed
exparte against the defendant petitioner that
the provisions of Order VII Rule 10 CPC
have been ignored and violated, that since
by the amendment application the valuation
of the property in suit was sought to be
amended to Rs. 5,25,000/- hence the Civil
Judge (Junior Division) having pecuniary
jurisdiction only up to Rs. 25,000/- could
not have entertained the amendment
application or pass any order thereupon and
in view of the own admission of the plaintiff
in the amendment application regarding
valuation of the suit property he could not
pass any orders in the suit itself, that the
District Judge in exercise of his jurisdiction
under Section 24 CPC could not have
transferred the suit from the court of Civil
Judge (Junior Division) to the court of Civil
Judge (Senior Division) in view of the
express provisions of Order VII Rule 10
CPC, that the amendment in valuation of
the suit and property once allowed on
24.09.2012 would relate back to the date of
institution of the suit hence on such date i.e.
21.12.2009 the suit was not competently
instituted before the court having pecuniary
jurisdiction only upto Rs. 25,000/-.

5. In support of his contention
learned counsel for the petitioner has
relied upon a decision of a learned Single
Judge of this court in the case of Murari
Lal Vs Raman Lal reported in LAWS
(ALL) 1977 -9-7 to state that the power
under Section 24 (5) CPC could be
exercised by the District Judge only when
the suit was validly instituted in the court
of original jurisdiction and therefore any
order passed in a suit not validly instituted
in the proper court would not get validity.

6. He has referred to a decision of
learned Single Judge of this court in the
case of Devendra Singh Vs Bhole Ram
reported in LAWS (ALL) 1990-12-8 to
submit that consent of the parties cannot
confer jurisdiction on a court to try a suit
and once the amendment in valuation is
allowed and the pecuniary jurisdiction of
the court has changed the plaint would
have to be returned for presentation
before the competent court and it could
not be transferred and directed to proceed
in the court having pecuniary jurisdiction.

7. Learned counsel for the petitioner
has also placed reliance on a decision of the
Supreme Court in the case of Kulsum R.
Nadiadwala Vs State of Maharashtra
and Others reported in (2012) 6 SCC 348
to the effect that when the statute prescribes
a procedure to do a thing in a particular
manner then the thing is to be done in the
manner it is prescribed.

8. Learned counsel for the petitioner
has further cited a decision of the
Supreme Court in the case of Sinnamani
and Another Vs G. Vettivel and Others
reported in (2012) 5 SCC 759 to state that
when the statute requires filing of a suit
then it must be instituted only in the
manner prescribed and in no other
manner.

9. Learned counsel for the plaintiff
respondent
no.1
has
disputed
the
submission made by learned counsel for
the defendant petitioner and has submitted
that there is no illegality in the impugned
3 All] Vidya Shanker Tiwari Vs. Surya Kant Tiwari and Ors.
1177
order dated 01.10.2012 passed in Transfer
Application No. 327 of 2012 (Surya Kant
Tiwari Vs. Vidya Shankar and others) by
the District Judge, Deoria in view of the
provisions of Section 24 (5) of the Code of
Civil Procedure. He states that the suit was
filed before the Civil Judge ( Jr. Div.)
valuing it at Rs. 15,000/- which was triable
by the Civil Judge (Jr. Div.). He states that
on the objection filed by the defendant
regarding valuation of the suit property, the
plaintiff respondent did not contest it but
admitted that the suit property was under
valued in the plaint hence, the plaintiff
respondents filed an amendment application
to increase the valuation from Rs. 15,000/-
to Rs. 5,20,000/- which was allowed on
24.09.2012. Upon the valuation of the suit
being increased to Rs. 5,20,000/- it was no
more maintainable before the Civil Judge
(Jr. Div.) who had pecuniary jurisdiction
only up to Rs. 25,000/-. He states that the
plaintiff respondents then filed Transfer
Application No. 327 of 2012 under Section
24 of the Code of Civil Procedure before
the District Judge praying that the suit be
transferred from the Court of Civil Judge
(Jr. Div.) to the Court of Civil Judge (Sr.
Div.) which is competent to try the suit
having valuation of Rs. 5,20,000/-. Learned
counsel states that the transfer application
filed by the plaintiff respondent has been
allowed by the District Judge, Deoria and
now the suit has been directed to be
transferred to the Court of Civil Judge (Sr.
Div.) from the Court of Civil Judge (Jr.
Div.). According to him the District Judge
has jurisdiction to transfer such suit in view
of the specific provisions of Section 24 (5)
of the Code of Civil Procedure as such there
can be no illegality or jurisdictional error
when the District Judge has passed the
impugned order dated 01.10.2012 in
Transfer Application No. 327 of 2012.

10. In support of his submission,
learned
counsel
for
the
plaintiff
respondents has placed reliance on a
decision of learned Single Judge of this
court in the case of Bal Kishna and
others Vs. Vith Additional District
Judge, Kanpur Nagar and others
reported in 2003 (1) ARC 515 and
submits that in such circumstance, there
was no occasion for returning the plaint
and the suit was rightly transferred when
the valuation was increased from Rs.
1000/- to Rs. 80,000/-.

11. Learned counsel for the plaintiff
respondents has cited another decision of
learned Single Judge of this Court in the
case of Lallu @ Chandrika Prasad and
others Vs. Lakshmi Narain and others
reported in 2005 (23) LCD 749 and
states that when the suit was filed before the
Munsif Court it was valued at Rs. 240/- and
was correctly instituted in the Munsif Court.
On a plea raised by the defendant, the Court
determined the value of the suit at Rs.
30,000/- which exceeded the pecuniary
jurisdiction of the Munsif Court hence the
District Judge rightly transferred the suit to
the Court having jurisdiction in exercise of
his power under Section 24 (5) of the Code
of Civil Procedure.

12. Learned counsel for the plaintiff
respondents has relied upon a decision of
learned Single Judge of this Court in the
case of Chandra Shekhar and others Vs.
Rakesh Kumar reported in 2010 (4) ALJ
168 to submit that a suit can be transferred
under Section 24 of the Code of Civil
Procedure from a Court which has no
jurisdiction to a Court of competent
jurisdiction and to proceed with the suit
from the stage it is transferred and not
unnecessarily for a de-novo trial.
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

13. From the aforesaid submission of
learned counsel for both the parties and the
decision cited by them in support of their
submission the legality of the impugned
order dated 01.10.2012 passed in a Transfer
Application No. 327 of 2012 by the District
Judge, Deoria under Section 24 of the Code
of Civil Procedure is required to be
adjudicated in this petition. Therefore, the
question which arises for consideration is
"whether in the facts and circumstances of
the present case, the District Judge had
jurisdiction under Section 24 (5) of the Code
of Civil Procedure to transfer the instant Suit
No. 2163 of 2009 or the plaint ought to have
been returned to the plaintiff under Order VII
Rule 10 of the Code of Civil Procedure by
the Civil Judge (Jr. Div.) for it to be
presented before the Court of Competent
pecuniary jurisdiction".

14. The law is settled that the
jurisdiction of the court depends upon the
allegations made in the plaint and the
forum and jurisdiction of the suit is not
dependent upon the defence taken by the
defendant. On a defence taken to the
jurisdiction of the court in the written
statement would invite framing of an
issue as provided in Order 14 CPC but
even before framing of an issue the courts
jurisdiction can be adjudged on the
allegations made in the plaint.

15. The facts pleaded in this writ
petition are not disputed by the plaintiff
respondents to the extent that Suit No.
2163 of 2009 was filed by the plaintiff
respondents before the Court of Civil
Judge (Jr. Div.) upon a valuation to Rs.
15,000/-. The plaintiff got his plaint
amended increasing the valuation of the
Suit to Rs. 5,20,000/- and that such
amendment application was allowed on
24.09.2012.

16. The dispute is the jurisdiction of
the District Judge to transfer the suit after
amendment of its valuation to the Court
of Civil Judge (Sr. Div.) from the Court of
Civil Judge (Jr. Div.). The Provisions of
Section 24 of the Code of Civil Procedure
are quoted hereunder:-

"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

(b) withdraw any suit, appeal or
other proceeding pending in any Court
subordinate to it, and-

(i) try or dispose of the same; or

(ii) transfer the same for trial or
disposal to any Court subordinate to it and
competent to try or dispose of the same;
or 3

(iii) retransfer the same for trial or
disposal to the Court from which it was
withdrawn.

(2). Where any suit or proceeding has
been transferred or withdrawn under subsection (1), the Court which [is thereafter to
try or dispose of such suit or proceeding]
may, subject to any special directions in the
case of an order of transfer, either retry it or
proceed from the point at which it was
transferred or withdrawn.

(3). For the purposes of this section,-
3 All] Vidya Shanker Tiwari Vs. Surya Kant Tiwari and Ors.
1179

(a)
Courts
of
Additional
and
Assistant Judges shall be deemed to be
subordinate to the District Court;

(b)
"proceeding"
includes
a
proceeding for the execution of a decree
or order.]

(4). The Court trying any suit
transferred or withdrawn under this
section from a Court of Small Causes
shall, for the purposes of such suit, be
deemed to be a Court of Small Causes.

(5). A suit or proceeding may be
transferred under this section from a
Court which has no jurisdiction to try it.]"

16. For the purpose of this petition,
the provision of Sub-section 5 of Section
24 of the Code of Civil Procedure is
relevant which provides that the suit or
proceeding may be transferred under this
section from a Court which has no
jurisdiction to try it.

17. The provision is quite clear that
if a Court has no jurisdiction to try a suit
the District Judge may at any stage
transfer it.

18. The provision of Order VII of
the Code of Civil Procedure relate to a
plaint. Order VII Rule 10 of the Code of
Civil Procedure provides for return of the
plaint for being presented to the Court in
which
the
suit
should
have
been
instituted.

19. Order VI of the Code of Civil
Procedure deals with the pleading which
shall mean plaint or written submission.
Admittedly in pleadings a party cannot
approbate and reprobate and Order VI
Rule 17 of the Code of Civil Procedure
provides for amendment of plaint.

20. In the present case by the
amendment in valuation of the suit
property it has taken the suit out of
jurisdiction of the Civil Judge (Jr. Div.).
Hence the proper course would be either
to allow the amendment and then return
the amended plaint to the plaintiff for
presentation before the Court having
pecuniary jurisdiction. If any other
procedure is adopted then the question
under such circumstances would arise
whether the suit was properly instituted.
In the present case it is the plaintiff who
has applied for amendment of valuation
having earlier under valued the suit at the
time of its institution. Therefore, when
valuation of the suit is to be determined
on the basis of the plaint by the Court
then
the
amendment
application
increasing the valuation of the suit would
oust the jurisdiction of the court where the
suit was firstly instituted. It is under these
circumstances that it has to be seen
whether the suit was properly instituted in
the Court of competent jurisdiction.

21. The amendment in the plaint
would necessarily relate back to the date
of the institution of the suit. The law is
clear on this point to the extent that if by
amendment no new party is added or no
subsequent event is pleaded then the
amendment in a plaint would relate back
to the date of institution of the suit. It has
been so held in AIR 1960 Patna 244
(Shyam Nandan Sahay and others Vs.
Dhanpati Kuer and others) AIR 1965
SC 1449 (Raja Soap Factory and others
Vs. S.P. Shantharaj and others) AIR
1978 All 106 (Murari Lal Vs. Raman
Lal and others).

22. Once the plaintiff amends the
valuation then the amendment would
relate back to the date of institution of the
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
suit and if it is beyond the pecuniary
jurisdiction of the court where the suit
was initially instituted then it would not
be a suit properly instituted.

23. Since upon the valuation, the
suit should have been instituted in the
court of Civil Judge (Sr. Div.) and with
the ouster of the jurisdiction of the Civil
Judge (Jr. Div.) the plaint ought to have
been instituted in the court having
pecuniary jurisdiction. The provision of
Order VII Rule 10 of the Code of Civil
Procedure has provided for the plaint to
be returned to be presented to the court in
which the suit should have been instituted
hence in the present case in view of the
amended valuation of the suit it should
have been instituted in the court of Civil
Judge (Sr. Div.) but it was earlier
instituted in the Court of Civil Judge (Jr.
Div) but because the amendment would
relate back hence it was not a suit
presented to the proper court in which the
suit should have been instituted. As soon
as the suit was beyond the jurisdiction of
the court the provisions of Order VII Rule
10 CPC came into play.

24. The District Judge under Section
24 (5) of the Code of Civil Procedure can
transfer a suit properly instituted from a
court which has no jurisdiction to try it.
Such a suit pending before a Court which
has no jurisdiction to try it can be
transferred by the District Judge but it
would be in reference to a suit presented
before a court where it is properly
instituted. When the suit is presented
before a court which would have no
jurisdiction to try the suit then it would be
a suit not properly instituted.

25. The result would be that in the
present case when the amendment of
valuation of the suit was sought by the
plaintiff such amendment would relate
back to the date of institution of the suit.
On that date i.e. 21.12.2009 the suit
having valuation of Rs. 5,20,000/- could
not be held to be a suit properly instituted
in the court of Civil Judge (Jr. Div.)
which had a pecuniary jurisdiction of only
Rs. 25,000/- hence it was not a suit
properly instituted and the court of Civil
Judge (Jr. Division) did not have
jurisdiction over the suit in view of its
pecuniary jurisdiction.

26. Under such circumstances, the
jurisdiction under Section 24(5) of the
Code of Civil Procedure conferred on the
District Judge would be available only in
a suit properly instituted in the competent
court and it would not be available over a
suit not properly instituted.

27. Insofar as the decision in the case
of Bal Kishan (Supra) relied upon by
learned counsel for the plaintiff-respondent
is concerned, clearly the Court was
considering the grievance that the suit
should have been registered again when it
was transferred because it would create
problem in execution of the decree since it
was registered as a suit in the Court of
Munsif and subsequently on the basis of
valuation it was transferred to the Court of
Civil Judge. The High Court held that the
defendants of the suit are not affected by
such transfer because if there is difficulty in
the execution of the decree it is the plaintiff
who will face the difficulty and not the
defendant. This decision does not apply in
the present proceedings.

28. In Chandra Shekhar (Supra) the
suit for ejectment and arrears of rent and
damages was filed in the Court of Small
Causes (Jr. Division) but upon increase of its
3 All] Vidya Shanker Tiwari Vs. Surya Kant Tiwari and Ors.
1181
valuation and at the stage of final argument
the transfer application was made and the
District Jude under Section 24 CPC directed
it to proceed from the stage it was
transferred. This decision is very clear since
after institution of the suit the pleadings were
complete, evidence had been recorded and
final argument was to be advanced hence the
High Court did not interfere in the order of
the District Judge passed under Section 24
CPC. In the present case such is not the
circumstance. No evidence has been led and
even the replication is yet to be filed,
therefore, there was no such circumstance in
the present case.

29. In the case of Lallu @
Chandrika (Supra) the Court was seized
of a matter where it was held that the
provisions of Section 24(5) CPC appears
to be for convenience of the parties to
avoid delay in disposal of the cases and to
avoid return of the plaint in every
situation which would entail de-novo
proceedings making entire exercise done
before the previous Court as futile. In the
present case the circumstance is quite
different. The defendant-petitioner has
just put in appearance and neither any
evidence has been led nor the pleadings
have been completed, therefore, whereas
in the above noted case the circumstance
for interpreting the jurisdiction of the
District Judge under Section 24(5) CPC
were different but in the present case they
are not so.

30. To ignore the provision of Order
VII Rule 10 CPC and affirm an order passed
under Section 24(5) CPC the circumstance of
the case are very material inasmuch as where
after evidence has been led and the suit is at
the final hearing stage and then the valuation
has been enhanced by a determination made
by the Court the power under Section 24(5)
CPC was exercised by the District Judge and
it was affirmed because a de-novo trial
would be inconvenient to the parties and if
the plaint was returned under Order VII Rule
10 CPC at that stage then it would entail a
complete retrial before the Court having
jurisdiction and starting the trial de-novo.

31.

As
indicated
above
the
circumstance of the three decisions relied
upon by learned counsel for the plaintiffrespondent were totally different and the
said judgments were in the interest of
justice and circumstances of those cases.

32. The provision of Order VII Rule 10
CPC are quite specific and deal with a
circumstance which has arisen in the present
proceedings where when the amendment was
allowed to increase the valuation of the suit it
related back to the date of institution of the
suit before a Court which had no jurisdiction
to try the suit and neither the pleadings were
completed nor evidence was led hence it was
not a case of transfer to proceed from the stage
after evidence had been led. The plaint having
not been properly presented in the Court
where the suit ought to have been instituted
was required to be returned to the plaintiff for
presentation before the competent court
having pecuniary jurisdiction.

33. Therefore, in the present case the
procedure adopted by the plaintiff by
filing the Transfer Application before the
District Judge to transfer the case because
valuation has increased and the District
Judge passing an order on the transfer
application of the plaintiff under Section
24 CPC was not in accordance with the
procedure prescribed under the statute. It
is settled law that when the statute
provides a thing to be done in a particular
manner then that thing has to be done in
the manner prescribed as has been held in
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of A.K. Ray Vs. State of Punjab
reported in 1986(4) SCC 326, Babu
Bargis Vs. Bar Council reported in
1999(3) SCC 422, Diwan Singh Vs.
Rajendra Prasad reported in 2007(1)
Supreme 52 and L. Hridaya Narain Vs.
ITO reported in AIR 1971 Supreme Court
33 and Kulsum R. Nadiadwala (supra).

34. The first issue raised in this
petition is thus answered by holding that
if the suit was not properly instituted the
District Judge could not exercise his
jurisdiction under Section 24 (5) of the
Code of Civil Procedure by ignoring the
provision of Order VII Rule 10 of the
Code of Civil Procedure.

35. The second issue raised in this
petition is answered by holding that the
plaint ought to have been returned under
Order VII Rule 10 CPC.

36. The plaint is therefore directed
to be returned to the plaintiff under Order
VII Rule 10 CPC for being presented
before the Court of Competent pecuniary
jurisdiction.

37. For the reasons above mentioned
the impugned order cannot be sustained
and is liable to be set aside.

38. The impugned order dated
01.10.2012
passed
in
Transfer
Application No.327 of 2012 by the
District Judge, Deoria is set aside.

39. This petition is allowed.

40. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.1921 of 2010

The
Executive
Board
of
Methodist
Episcopal Church and Anr ....Petitioner
Versus
Commissioner Agra and Ors.Respondents

Counsel for the Petitioner:
Sri T.S. Pandey, Sri A.P. Paul, Sri Brij
Bhushan Paul
Sri Munna Babu, Sri T.C. Pandey

Counsel for the Respondents:
C.S.C., Sri C.M. Rai, Sri Sanjay Srivastava
Sri Shashi Nandan, Sri Sudeep Harkauli
Sri Udayan Nandan,Sri P.N. Saxena
Socities Registration Act- Section 12
D(2)-Appeal
against
order-recalling
renewal
certificate-dismissed
as
not
maintainable-appellate
authority
committed great error-order quasheddirection to decide appeal on merit-given
appeal maintainable even order obtained
by playing fraud.

Held: Para-6 & 7
6. From a perusal of the aforesaid provision
it is apparently clear that the Registrar has
been given various powers for cancelling
the registration of the Society. Section
12D(1)(c) which was inserted by U.P. Act
No. 11 of 1984 provides that an appeal
would also lie against an order where the
certificate of renewal has been obtained by
misrepresentation or fraud.

7. In the opinion of the Court, the
appeal
of
the
petitioner
was
maintainable and that the appellate
authority committed an error in rejecting
the appeal on the ground that it was not
maintainable.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri B.B. Paul, the learned
counsel for the petitioner, Sri P.N.