' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree passed by the High Court on 9-5-1998, whereby the appeal filed by the appellant, herein, was dismissed.
2. The precise facts giving rise to the present appeal are that Ghulam Rasool, respondent No,1, got a sale-deed executed in his favour on 10-3-1988 for an ostensible consideration of Rs,1,20,000.
According to the plaintiff-appellant the price paid for the land was only Rs,15,000. The appellant filed a suit for possession on the basis of his prior right of purchase in the Court of District Judge, Muzaffarabad, on 30-10-1988. The suit was made over to the learned Additional District Judge, Muzaffarabad, for trial and disposal according to law. The learned Additional District Judge, Muzaffarabad, dismissed the suit on 16-3-1991 for filing the same in the wrong forum and for nonpayment of proper court-fee. The appellant preferred a revision petition to the High Court and the High Court, vide its judgment dated 441-1991, ordered for the return of plaint to the plaintiff. In pursuance of the order dated 4-11-1991 passed by the High Court, the appellant submitted an application before the learned Additional District Judge, Muzaffarabad, praying for the return of the plaint. The learned Additional District Judge, Muzaffarabad, returned the suit on 23-1-1992, which was filed before the Sub-Judge, Muzaffarabad, on 25-1-1992, as 24-1-1992 was a holiday. The Sub- Judge framed_ all the issues in the light of the pleadings of the parties. However, he heard the arguments on Issues No,3 which pertains to the question of limitation and dismissed the suit as being time-barred mainly on the ground that the High Court had ordered the return of the plaint to the plaintiff on 4-11-1991 but the same was filed before the Sub-Judge after delay on 25-1-1992 for which there is no reasonable explanation. On appeals to the District Judge and the High Court, the findings of the Sub-Judge were affirmed.
3. We have heard the judgments and perused the file. It has been contended by Mr. Bashir Ahmad Butt, Advocate, the learned counsel for the appellant, that according to the order of the High Court dated 4-11-1991, the plaint was to be returned by the Additional District Judge but after his transfer, his successor joined his dude!' on 16-1-1992. It has been contended on behalf of the appellant that after the order of the High Court dated 4 11-1991, he filed it application along with s an affidavit in the Court of Sub-Judge on 10-11-1991 where it was stated that as the plaint could not be returned to the plaintiff due to the m-availability of the Additional District Judge and that the plaint would be presented after the same was returned; a prayer for the condonation of the delay due to the aforesaid reason was also made. The learned Sub-Judge condoned the delay till 31-12-1992, subject to the objections from the opposite party. Thereafter, the plaintiff made an application to the Additional District Judge on 13-1-1992, who joined his duties on 16-1-1992 and ordered. The return of plaint on 23-1-1992. As 24-1 1 )Q2 was Friday, and the Court was close, he file the plaint before the Sub-Judge on 25-1-1992. Thus, the learned counsel has argued that there was no negligence on the part of the plaintiff-appellant and the delay, if any, in presenting the plaint before the Sub-Judge was caused due to the circumstances indicated above and not due to any negligence on the part of the plaintiff. The learned counsel has contended that the application dated 10-11-1991 and affidavit in support of the same negate the finding of the Courts below that the plaintiff-appellant was negligent, especially so when he made said application within seven days of the order of the High Court for the return of the plaint. The learned counsel has further argued that if, at all, any delay can be said to have been caused in filing the plaint before the Sub- Judge concerned, that should be condoned in view of the circumstances indicated above.
4. The learned counsel has also argued that the sale-deed which was pre-empted was executed on 10-3-1988 and the suit was filed in the Court of District Judge on 30-10-1988, seven months and twenty days of the execution of the sale-deed, whereas the limitation in the case was till 30-10- 1989. Thus, the suit of the pre-emption was filed well within the prescribed period of limitation. The learned counsel has contended that under section 15 of the Code of Civil Procedure, a civil suit is to be instituted in the Court of competent jurisdiction. He has argued that there is no dispute in the instant case that the suit land was situated within the territorial jurisdiction of the District Judge before whom the suit was initially instituted and the suit was valued for the purpose of court-fee on the basis of the land revenue but the same was not paid, as the jurisdictional value below Rs,25,000 is exempted from paying court-fee. He has argued that the District Judge had the jurisdiction to try the suit because under section 31 of the Azad Jammu and Kashmir Courts and Laws Code, 1949, (hereinafter shall be called 'the Code'), he has unlimited powers to try a civil suit on the original side. Thus, the learned counsel has argued that the mere fact that the suit was not instituted in the Court of Sub-Judge would not debar the District Judge to try the same. Thats he has maintained that when the plaint was returned by the Additional District Judge to the plaintiff in pursuance of the order of the High Court dated 4-11-1991, it would not mean that the suit would be deemed to have been instituted on 25-1-1992 for the first time, rather the date of institution would be when the suit was first filed in the Court of District Judge, I .e , 30-10-1988. Thus, the learned counsel maintained that even if it is assumed for the sake of argument that there was any negligence on the part of the plaintiff to promptly take back the plaint from the Court of Additional District Judge and present it before the Sub-Judge, that would not make any difference so far as question of limitation is concerned. The learned counsel has cited following authorities in support of his contentions:-- ' In case reported as Madhura Krishnamurthy Sastri v. Yerra Ramamurthi (AIR 1957 Andh. Pra. 654), it was held that when a plaint is returned by a superior Court for presentation to a lower Court, it is not, strictly speaking, due to the fact that superior Court has no jurisdiction to entertain it but only in conformity with the provisions of section 15 of the Code of Civil Procedure which requires that a suit 'shall be instituted in the Court of lowest grade competent to try it'. The position is different when a suit which ought to have been filed in the superior Court is instituted in a lower grade. That would be the case of real want of jurisdiction.
' In case reported as Malunood Akhtar v. Ch. Muhammad Hussain Naqshbandi Additional District Judge, Rawalpindi (1986 CLC 1451), while dealing with the word, 'competent' appearing in section 15 of the Code of Civil Procedure, it was observed that same refers to the pecuniary and territoilal jurisdiction of the subject-matter of the suit. Thus, it was observed that once the Court assumes the jurisdiction, subsequent increase in the value of its subject-matter would not deprive the Court of exercising the jurisdiction; the provisions contained in Order VII, Rule 10 of the Code of Civil Procedure would apply only where the Court initially lacked the jurisdiction to entertain and try the suit.
' In case reported as Sultan Ahmed Chowdhury v. Must qzur Rahman Chowhdury (PLD 1967 Dacca 216), it was observed that the provisions contained in section 15 of the Code of Civil Procedure are of procedural in nature and the mere fact that the suit was not instituted in the Court of lower grade did not oust the jurisdiction of the higher Court to entertain the suit. It was further observed that the mere fact that the suit was initially instituted in the Court of higher grade, would not oust the jurisdiction of the Court of lower grade.
' In case reported as Muhammad Farash Kban v. Mst. Nishadar Jan (PLD 1983 SC (AJ&K) 43), it was observed that section 15 of the Code of Civil Procedure does not take away any right of superior Court having jurisdiction to entertain a suit and try the same. The facts of the case were that the suit was within the jurisdiction of Sub-Judge sitting at place 'P' but the same was filed in the Court of District Judge with the prayer to transfer the same to Sub-Judge sitting at place 'R'. ,It was observed that in the circumstances, the suit would be deemed to have been pending in the Court of District Judge and then transferred to Sub-Judge at place 'R' in exercise of the provisions contained in section 24 of the Code of Civil Procedure. It was further observed that under section 31 of the Courts and Laws Code, the District Judge enjoys to entertain the original suits on his original side without any question of pecuniary jurisdiction because he enjoys unlimited pecuniary jurisdiction to entertain a suit on the original side.
' In case reported as V. Ramaswa mi Iyer v. Veerarayan Raja alias Kuttunni (AIR 1941 Madras 711), it has been held that when a plaint is returned for presentation to the Court having the jurisdiction and the Court accepts the plaint as being in order, it must be held that the suit has been instituted.
If some time afterwards as a result of finding of fact, it transpires that in view of the value of the subject-matter of the suit, the plaint should have been presented to another Court having jurisdiction, it cannot be said that the institution of the suit would be deemed to be the date when the same is instituted in another Court after the return of the plaint; the date of institution would be the date when the suit was initially entertained by the Court.
5. In reply, Ghulam Rasool, respondent, who appeared in person, has argued that the suit of the plaintiff-appellant was time-barred and the Courts below have rightly dismissed the same.
6. We have given due consideration to the matter. As is evident from the authorities-cited by the learned counsel for the appellant, the mere fact that the plaint was returned to the plaintiff, would not imply that the same was instituted on 25-1-1992, when the same was instituted after the return of the plaint before the Sub-Judge rather it would be deemed to have been instituted on the date when it was first filed before the District Judge because it is nobody's case that the District Judge had no territorial jurisdiction to try the suit. So far as the question of his pecuniary jurisdiction is concerned, tha, is unlimited under section 31(a) of the Code. The fact that under section 31(2) of.
The Courts and Laws Code, the pecuniary jurisdiction of the Sub-Judge is Rs,25,000 does not imply that the suits which have pecuniary jurisdiction to the tune of Rs,25,000 or less are not triable by the District Judge. Obviously, it is for the sake of convenience that ordinarily the suits which have pecuniary jurisdiction to the tune of Rs,25,000 are to be instituted in the Court of Sub-Judge but that does not mean that the District Judge is divested of the jurisdiction to try a suit which has pecuniary jurisdiction of less than Rs,25,000. Even otherwise, the perusal of the record shows that after the transfer of Additional District Judge, new Additional District Judge did Mt join his subsequent assignment at Muzaffarabad till 16-1-1992. As has been already stated that the plaintiff had also applied after one week of the order of the High Court, i,e,, on 10-11-1991 to the concerned Sub-Judge that the delay might be condoned, because he could not present the proper plaint, as the same could not be returned to him due to the non-availability of the Additional District Judge.
Thus, under these circumstances, it cannot be said that the plaintiff was guilty of any negligence.
' In the light of what has been stated above, we accept the appeal and set aside the judgments and decrees of the Courts below. The suit is remanded to the Sub-Judge to proceed with the trial of the suit from the stage it was dismissed. In the circumstances of the case we make no order as to the costs.