The provisions of Order 7, Rule 10, Civil P. C. are not imperative and that the court has a discretion in the matter of returning the plaint for being presented before a court of lower grade.

1. The question which arises in this case is whether the Additional District Judge of Patna acted with material irregularity in the exercise of his jurisdiction in refusing to return a plaint under the provisions of Order 7, Rule 10, Civil P. C.

2. The suit was instituted by opposite party 1 Raghubansh Mani Prasad Narayan Singh on 20-9-1946 in the Court of the District Judge of Patna. The relief claimed was mainly for taking of accounts from trustees in respect of certain trust properties and for other ancillary reliefs. After the suit was instituted there were proceedings taken by the plaintiff under Order 39, Rule 1, Civil P. C. for restraining the defendants appointed under the deed from) acting as trustees. The matter was heard on merits and on 11-2-1947 the prayer for injunction was refused. An appeal was preferred to the High Court on behalf of the plaintiff against this order. On 23-11-1949, the appeal was heard by the High Court. As the suit had been pending for long the High Court ordered that the suit should be heard before June 1950. In view of this direction of the High Court the appeal was not pressed by the plaintiff. It appears that at a subsequent stage the matter in dispute was referred by an application of the parties to Rai J. for arbitration. The arbitrator heard the parties and perused the documents produced on their behalf but later on the arbitrator returned the papers to the r0urt stating that he was unable to complete the arbitration in view of the attitude adopted by the parties. It appears that the plaintiff made an application for appointing a receiver before the District Judge. An objection was raised by the defendant but evidently the parties agreed that the suit itself should be taken up for hearing at an early date.

At this stage the defendant raised the point that the suit ought to have been instituted before the Subordinate Judge and under the provisions of Order 7, Rule 10, Civil P. C., it was the duty of the, Additional District Judge to return the plaint to the plaintiff for being presented before a competent Court. The learned Additional District Judge considered that the provisions of Order 7, Rule 10, Civil P. C. were not imperative and it was a matter of discretion dependent on the facts of each particular case. The learned Additional District Judge took note of the fact that the defendant did not press the objection under Order 7, Rule 10 at an earlier stage in the case. He also considered that to return the plaint at this stage would be highly unjust and improper in view of the order of the High Court dated 23-11-1949, that the suit should be heard by the end of June, 1950, at the latest. He further observed that the parties would be put to great harassment if the plaint was returned at the present stage, on the contrary, there was no prejudice caused to the defendant if the suit was heard in the Court of the Additional District Judge. For all these reasons the learned Additional District Judge refused to return the plaint under the provisions of Order 7, Rule 10, Civil P. C.

3. The submission of the Advocate-General on behalf of the petitioner in this case is that the provisions of Order 7, Rule 10 were imperative and that as soon as learned Additional District Judge came to the conclusion that the Subordinate Judge had jurisdiction to try the suit he ought to have made an order for return of the plaint for being presented to a competent Court. The question turns upon the construction of the language used in Order 7, Rule 10, Civil P. C. and also of the other important provisions enacted in Sec.15, Civil P. C., and Sec.18, Bengal and Assam Civil Courts Act. Order 7, Rule 10 is in the following terms :

"The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted."

Sec.15, Civil P. C. enacts :

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

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