LawPage

Notes and Articles for Law students

User Tools

Site Tools


civil_laws:sections:section-15

Court in which suits to be instituted

Section 15 of the Code of Civil Procedure, 1908.

Every suit shall be instituted in the Court of the lowest grade competent to try it.

Scope and object of the Section

This and the following Sections up to Section 20 regulate the forum for the institution of suits in India. The rule requiring every suit to be instituted in the Court of the lowest grade is only a rule of procedure and not of jurisdiction. Thus the District Judge and the Subordinate Judge have jurisdiction over all original suits cognizable by the Civil Court subject, in its exercise, to a certain procedure, namely, that the suits be instituted in the Court of the lowest grade competent to try them. “The object of the Legislature,” said Petheram, C. J., “is that the Court of the higher grade shall not be overcrowded with suits.”1) It has been held that this Section does not apply to the High Court in the exercise of its original civil jurisdiction.

Section 15 of the Code of Civil Procedure, 1908 cannot come in the way of transferring a suit to a superior Court whose pecuniary jurisdiction is higher.2)

Shall be instituted

As has already been seen above, this Section merely lays down a rule of procedure. It does not deprive any Court of the jurisdiction which it may otherwise possess under the Acts constituting them. Hence, the institution in a Court of a higher grade, of a suit, which ought to have been instituted in a Court of lower grade, is only an irregularity in procedure covered by Section 99 of the Civil Procedure Code, and does not affect the jurisdiction of the Court. In Nidhi Lai v. Mazhar Hussain3) Petheram, C. J., said :

The word shall is, in my opinion, imperative on the suitor. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits. The proviso is for the benefit of the Court of the higher grade and it is not bound to take advantage of it. If it does not wish to try the suit it may refuse to entertain it. If it wishes to retain the suit in its Court it may do so, it is not bound to refuse to entertain it.”

In Doly Ghosh vs Kumud Chandra Ghosh 4) the Hon'ble Calcutta High Court held that: “A Court of higher grade can very well try a suit, unless in its discretion it returns the plaint. If it retains it and a decree is passed the same would not be a nullity.

It is thus clear that where a suit which ought to have been instituted in a Court of lower grade is instituted in a Court of a higher grade, the latter cannot be said to have no jurisdiction to try the suit though as a matter of procedure the plaint ought to be returned for presentation to the proper Court. Where, however, a suit is instituted in a Court of a lower grade than the one which is competent to try it, the proceedings are null and void as being without jurisdiction, and it must be presumed that material prejudice has been caused to the party concerned. The willingness of the plaintiff not to claim, out of the sum that might be realised by the sale of the suit property, anything in excess of the pecuniary jurisdiction of the Court cannot confer on the Court jurisdiction to try the suit.5)

Once the institution of the suit takes place according to the provisions of this Section its operation is exhausted and the suit should not be transferred merely because it is subsequently found that the plaintiff is entitled only to a part of the claim which would have been cognizable by a lower Court.

Court of the lowest Grade

The following are the several grades of Courts in order, which have been established in India:

High Courts

Under Part VI, Chapter V of the Constitution of India, each state is allowed to have a high court, however, there are states that have culminated high courts wherein the court has jurisdiction over more than one state and union territory. Presently India has 24 high courts. The high courts can have additional benches apart from its primary seat. These are the topmost court for any state or union territory over which they exercise jurisdiction. The high court much like the Supreme Court has a Chief Justice but is allowed to have as many judges as required who serve until attaining the age of 62. The President in consultation with the Governor, Chief Justices of India and the High Court concerned makes the appointment. Unlike the judges at the apex court, the justices of the high court are liable to be transferred to other high courts.

The high court is vested with original as well as appellate jurisdictions. It shall hear appeals arising from the subordinate courts and tribunals. They are empowered to superintend over all subordinate courts except the military courts. High courts are also empowered to issue writs, are a court of records and are further mandated with authority to appoint its own officials and other internal affairs.

District Courts

Next below the High Court is the District Court which is the principal Civil Court of original jurisdiction in the district. District courts in India are established for one or more district of a state depending upon its population, number of cases etc. They are subordinate court to the high court of their state which administers its functioning. It is also a Court of appeal from the decrees and orders of Subordinate Courts in certain cases.

Courts of the Subordinate Judge

The jurisdiction of these Subordinate Judges extends to all original suits of any value.

Courts of Munsiff

These have only a limited pecuniary jurisdiction. In Kerala pecuniary jurisdiction of a munsiff court is up to Rs. 10 Lakhs.

Competent to try it

As has been observed already in Section 9, the jurisdiction of a Court to try a suit is of three kinds, viz., jurisdiction with reference to the nature of the suit, pecuniary jurisdiction and territorial jurisdiction. Thus the exemption of certain suits from the cognizance of Small Cause Courts relates to the jurisdiction of Courts with regard to the nature of the suit. The prohibition of Presidency Small Cause Courts from entertaining suits of which the value exceeds Rs. 2,000 is an example of pecuniary jurisdiction. And the rule that a Court shall not try a suit for immovable property situated beyond certain local limits prescribed as the limits of its jurisdiction is an example of territorial jurisdiction.

Where the Court has jurisdiction to try a suit, it has jurisdiction to decide every question arising in the suit and its decree, though it may be wrong, is binding on the parties until it is reversed in some manner provided by law. But where a suit is instituted in a Court having no jurisdiction to try it, the defect is a fatal one and cannot be cured by its subsequent transfer to a Court having jurisdiction. Once jurisdiction is acquired by a Court over a suit, it continues in all matters in the suit that are brought within its cognizance by the Civil Procedure Code. An inferior Court has jurisdiction to set aside the decree of a superior Court obtained by fraud provided it is otherwise competent to try the suit.

Effect of improper valuation

Although it is the plaintiff’s valuation that determines the forum of a suit, where the value can be correctly ascertained the plaintiff is not at liberty to place an arbitrary value on his suit or to misrepresent its real value so as to have it tried by a Court different from that intended by the Legislature. If it appears to the Court that the allegation in the plaint is falsely made for the purpose of avoiding the jurisdiction of the proper Court, the Court may require the plaintiff to prove that the valuation is proper. Where however a decree is in the suit, the Appellate Court has no power to entertain any objection to the jurisdiction of the trial Court on the ground of overvaluation or undervaluation, unless the objection was taken in the trial Court at or before the framing of the issues or unless the Appellate Court is satisfied that, on account of the overvaluation or undervaluation, the decision of the suit on the merits has been prejudiced. The mere change in the forum consequent on the overvaluation or undervaluation of a suit will not be considered as affecting the disposal of the suit on the merits.

Pecuniary jurisdiction at the time of filing of the suit

The pecuniary jurisdiction has to be seen as per the averments in the plaint at the time of filing of the suit and not subsequent event as alleged by the Petitioner that since the judgment and decree qua possession has already been passed in favour of the Respondent the relief of injunction has become inconsequential. Undoubtedly Section 15 CPC provides that a suit shall be instituted in the Court of lowest grade competent to try it however as per Section 7(iv) of the Court Fees Act, the plaintiff has the right to value the relief of injunction as he deems fit subject to the same being neither arbitrary nor fanciful. Whether the valuation for the relief of injunction is arbitrary or fanciful is a question of fact and thus cannot be decided as a preliminary issue. Further the respondent in the suit not only prays for injunction but also mesne profit and damages which were not quantified and for which it was stated that the court fees will be paid later on, this additional issue cannot be decided without leading evidence. The issue of court fees and pecuniary jurisdiction of the learned Trial Court being a mixed question of fact and law, the learned Trial Court rightly held that the issue cannot be decided as a preliminary issue. 6)

1) , 3)
AIR 1925 Rang 278
2)
Shriram Pistons & Rings Ltd. vs Manju Awasthy on 1 May, 1997
4)
2004 (2) CHN 585
5)
10 Mad 152
6)
see Pravesh Miglani vs Punam Anand Kumar on 18 March, 2015