Fr. Varghese vs Fr. Sebastian and Others

M.P. Menon, J.—After obtaining the consent in writing of the Advocate General, the Respondents instituted Proceedings u/s 92, CPC before the Sub Court, Alleppey on 7th June 1976. The suit was numbered as O.S. 99/76. That court returned the plaint under Order 7, Rule 10 and it was re-presented before the District Court, Alleppey. The process was repeated and ultimately it was presented before the District Court, Calicut in 1979, where it was numbered as O.S. 1/79. The suit was for removal of the Defendants from trusteeship and for settlement of a scheme for the administration of the trust.

In the meanwhile, the CPC was amended by Central Act 104/76 which came into force in 1977. Section 31 of this Act amended Section 92 of the Principal Act, and the effect of the amendment was that instead of the consent of the Advocate General, leave of the court had to be obtained for instituting a suit under the section. Section 97 of the Amending Act provided for "repeal and savings" and Sub-section (2)(k) was in the following terms:

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under Sub-section (2) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897-

(k) the provisions of Section 92 of the Principal Act, as amended by Section 31 of this Act, shall not apply to or affect any suit, appeal or proceeding instituted or filed before the commencement of the said Section 31; and every such suit, appeal or proceeding shall be disposed of as if the said Section 31 had not come into force.

The question therefore arose whether the proceeding which had commenced before the Alleppey Sub Court in 1976 could be treated as a suit instituted before the coming into force of the Amending Act. If it could be so treated, there was no question of obtaining leave of the Calicut court again. On the other hand, if the presentation of the plaint before the Calicut court in 1979 (after it was returned from the Alleppey courts) amounted to institution of a fresh suit before that court, leave was necessary. Admittedly, no such leave was obtained. The point was therefore raised before the District Court, Calicut by the Petitioner herein (Defendant in O.S. 1/79); and the court held that:

The sanction granted by the Advocate General holds good notwithstanding the change in venue of the court.

It is the correctness of the above view that is now challenged in this revision.

The reasoning of the learned District Judge is this. Section 97(2)(k) of Act 104/76 speaks of "any suit, appeal or proceeding instituted or filed" before the commencement of Section 31. To file means to put among the records of the court, to deposit with the proper custodian. "Filing" is different from "entertaining", according to the Supreme Court''s decision in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, . In Emperor v. Gulam Nabi AIR 1928 Pat 146, the Patna High Court has held that "a proceeding is instituted when for the first time the adjudication of a court of competent jurisdiction is sought". Therefore, the suit in the present case was "filed" or "instituted" before the Alleppey Sub Court in 1976, before the commencement of Section 31 of Act 104/76.

A number of decisions are cited by counsel on both sides, but what is important is the language of Section 97(2)(k) itself. The words used ace "suit, appeal or proceeding instituted or filed". As the court below has thought that O.S. 99/76 of the Alleppey Sub Court was a suit "filed" before that court within the meaning of the sub-section, the first question to be considered is whether the word "filed" in the sub-section is to be related to ''suit'', as distinct from ''appeal'' and ''proceeding''. In common parlance, no doubt, we speak of the filing of a suit, appeal or application. But the Code of Civil Procedure, prior to its amendment by Act 104/76, always used the word "institute'''' in connection with a suit. Sections 10, 12, 15 - 20, 22, 26, 27, 80, 86, 88, 91 and 92 are examples. These sections speak of "instituting" a suit, "suit instituted", etc. The scheme was kept up in the other parts of the Code also, as in Orders 1, 5, 9, 21, 23 and 31 to 33, though as a rare departure, Rule 9 of Order 9 referred to "bringing a fresh suit". With regard to plaints and written statements, and even "pleadings" in general, the word used was "present". In the matter of appeals Sections 96, 97, 100 - 102, 104, 105 and 109 used the words "lie" i.e., an "appeal shall lie" or "no appeal shall lie". The word used in Section 97, however, was "prefer"; and Orders 41 and 44 also employed the same language. Thus the word "file" was significantly excluded from use either in the case of a suit or an appeal. And my attention has not been drawn to any provision of the Code even after its amendment by Act 104/76 where "file" is used in connection with a suit. Of course the word appears in some other connection, and that aspect will be separately examined. For the present it is enough to say that in so far as the Code, even after the amendment, does not employ the word "file" anywhere in relation to a suit, it is reasonable to infer that it was not the intention of Parliament to relate the word "filed" in Section 97(2)(k) to suits.

Section 3 of the Limitation Act refers to "suit instituted", "appeal preferred" and "application made". The same scheme appears in Section 4. But Parliament has not been so careful in the choice of words in Act 104/76. Section 9 of this Act introduced a new Section 21A into the Code, and it opens with the words "no suit shall he". Order V is amended by Section 55 of the Amending Act by adding a second proviso to Rule 1(1), and here the words "file the written statement" are used. Similarly Rule (14A) of Order 6 introduced by Section 56 of the Amending Act speaks of "pleading filed"; and Rule 1(2) of Order 7 introduced by Section 66 provides that "any person shall file in court an application". And finally, the proviso to Rule 1 of Order 41, added by Section 87 of the Amending Act, conceives of a situation where "appeals are filed". The word ''file'' is thus used by the Amending Act in relation to written statements, pleadings, applications and appeals, but still, not in relation to suits. Under the circumstances, when Section 97(2)(k) of Act 104/76 refers to "suit, appeal or proceeding instituted or filed", it may not be safe to think that "filed" is used in relation to suits also. If we adopt the language of the proviso to Order 41 Rule 1 introduced by the Act, the word ''file'' can certainly apply to appeals; but it is unnecessary to decide the point here. All that is necessary to say is that it is unsafe to connect it with "suits" and then draw a distinction between "filing" and "presentation", as has been done by the court below.

The decision in Emperor Vs. Ghulam Nabi and others, , noticed by the court below, does not appear to be of any real assistance. That case arose from a prosecution under the Arms Act, 1878. On 30th June, 1925 the prosecution filed a complaint against two persons Ghulam Nabi and Muhammed Husain. A third person Ghulam Husain was also involved in the illicit trade in arms, but no mention of his complicity was made in this complaint. The first report about his complicity was made along with the final charge sheet submitted on 13th August, 1925. Sanction from the District Magistrate u/s 29 of the Arms Act for prosecuting Ghulam Husain was obtained on 17th August, 1925. Evidence was adduced before the trial court after that date, and a point was taken on behalf of Ghulam Husain that proceedings had been instituted against him before obtaining the sanction of the District Magistrate. This was repelled by the Patna High Court observing:

No judicial or legal proceedings had been taken against Ghulam Husain before the 17th. It is true that the police had been investigating the case against him, but I think they were empowered to do this without the sanction of the District Magistrate, As in the case of a suit, a proceeding is instituted when, for the first time, the adjudication of a court of competent jurisdiction is sought. ''Proceedings'' in Section 29 means legal proceedings in court and not searches or arrest or investigations made by the police in exercise of the powers conferred upon them by the Criminal Procedure Code or any other law.

The decision thus lays down that "institution" of prosecution within the meaning of Section 29 of the Arms Act, 1878 commences only when adjudication by a court of competent jurisdiction is sought for. Assuming that the same principle must apply to institution of suits under the Code of Civil Procedure, it is clear that the mere presentation of a plaint, like the mere filing of a complaint or a charge-sheet in a criminal case, would not amount to "institution" of a suit. Again, the court concerned must be one of "competent jurisdiction". The Alleppey Sub Court was admittedly not competent to try O.S. 99/76 and the presentation of the plaint before that court in 1976 did not amount to "institution" of a suit, even if the above view is to be adopted.

The Supreme Court''s decision in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, , arose under the Uttar Pradesh Sales Tax Act, Section 9 of which provided that a dealer "may appeal to such authorities as may be prescribed", and further insisted under the proviso thereto that "no appeal shall be entertained'''' unless it was accompanied by proof of payment of admitted tax. The court held that "entertain" meant "admit to consideration" i.e. "when the case is taken up by the court for the first time". Proof of payment of admitted tax could therefore be produced after the presentation of the appeal and before consideration of the same by the appellate authority. The decision really deals with the meaning of the word "entertain", though there are observations about "filing" also. At any rate, Section 9 of the Uttar Pradesh Act did not contain the word "file" and their Lordships were not dealing with the meaning of such a word.

Mr. Raman Pillai for the Respondents argues that even if the word "filed" in Section 97(2)(k) is not relatable to "suit", it can still be held that the suit in the present case was "instituted" before the Alleppey Court in 1976. Section 92 uses the words "may institute a suit" and the argument is that such a suit was "instituted" when the plaint in O.S. 99/76 was presented at Alleppey. But the weight of authority seems to be against such an approach. Section 4 of the Limitation Act, 1908 provided that where the period of limitation prescribed for a suit expired on a day when the court was closed, it could be instituted on the day the court reopened; and construing this provision, the Privy Council held, in AIR 1935 85 (Privy Council) , that "institution" for the the purpose must be institution before the proper or competent court. In Amar Chand v. Union of India AIR 1913 S.C. 313, the Supreme Court held that when a plaint was returned under Order VII Rule 10 and was presented before the proper court, the suit could be said to have been "instituted" only on such representation; it could not be a continuation of the proceedings initiated before the court which had returned the plaint. The Patna High Court itself has held in Ram Kishun Rai v. Ashirbad Bai AIR 1950 Pat 473, that:

After a plaint is returned for representation to the proper court the institution of the suit commences from the date on which the plaint is represented to the proper court.

The effect of returning a plaint and re-presentation of the same before the proper court under Order 7 Rule 10 has been understood on similar lines in Parvathi Ammal v. Meenakshi Ammal AIR 1951 Mad 841 and in Devaki Amma v. Kochunarayan 1977 KLT 773. In 1979 KLT 41 (case No. 83) this Court said:

When a suit cannot be entertained in a court it can return the plaint for presentation to the proper court. Such return instead of rejection enables a party to seek adjustment of court fee already paid towards court fee payable on the same plaint if presented before the proper court. But for this, for all purposes it is a new plaint.

Section 15 of the Code provides that every suit shall be instituted in the court of the lowest grade competent to try it. And Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Reading the two provisions together, it is clear that presentation of a plaint before a court not competent to try the suit will not be "institution" of the suit within the meaning of Section 15, and that re-presentation of the plaint, after return, before the competent court will be institution of the suit within the meaning of Section 26. The present suit, O.S. 1/79, is therefore a suit instituted in 1979, and not one instituted before the commencement of Section 31 of Act 104/76.

That apart, when Section 97(2)(k) of Act 104/76 speaks of suits, appeals and proceedings "instituted or filed" before the commencement of Section 31, the reference must necessarily be to institution or filing before a competent court; presentation of a plaint before a court not competent to try the suit will not amount to institution or filing, even if the term "filed" in Section 97(2)(k) were to govern suits also. Section 92 itself specifies that a suit thereunder has to be instituted:

In the principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate.

Proceedings initiated u/s 92 in any court other than the one specified above will not amount to a suit "instituted or filed" within the meaning of Section 97(2)(k) of Act 104/76, because it is impossible to attribute an intention to Parliament to save even things done improperly prior to the amendment.

For the reasons stated above I hold that O.S. No. 1/79 is a suit newly instituted before the Calicut Court u/s 92, and that the consent given by the Advocate General prior to the crucial date cannot "hold good", as held by the court below. O.S. No. 1/79 is not a continuation of O.S. 99/76. The finding of the court below on issue No. (i) is therefore set aside, and the revision allowed to that extent. No costs.