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.

( 1 ) FACTS - A suit was filed in the Court of the learned Munsif in November 1995 being O. C. Suit No. 169 of 1995 for the following reliefs:" (A)decree for cancelling the marriage held on 16. 2. 92 and setting aside the Hindu Marriage Registration certificate issued on 25. 5. 92. (b)declaration that no marriage was held between the plaintiff and the defendant on 26. 2. 92 according to the Hindu Shastras or in any other way and the defendant is not husband of the plaintiff. (c)permanent Injunction restraining the defendant from forcibly taking the plaintiff to the house of the defendant as his wife and or entering the house of the plaintiff as the plaintiff's husband and or creating obstruction in nursing works or any other works of the plaintiff. (d)decree for entire costs of the suit along with interest for the same. "1. 1. Subsequently this suit was sought to be withdrawn which was allowed by the learned Munsif by an order dated 10th of July, 1998 with liberty to sue afresh in the appropriate Court after recording that the plaintiff wanted to file the suit in the appropriate Court under the provisions of the Hindu Marriage Act, 1955. Thereafter, a suit was filed under section 12 of the Hindu Marriage Act in the Court of the learned District Judge, Dakshin Dinajpur, Balurghat which was registered as Matrimonial Suit No. 44 of 1998. Against the dismissal of this suit, the present appeal has been filed. The learned District Judge had found that there was no marriage between the parties, therefore, in his judgment and decree dated 19th of September, 2001, he had passed the following order:"in view of my foregoing observations, the petitioner should have to pray for negative declaration before a competent Court of lowest jurisdiction and section 12 has no application as she categorically denied solemnisation of any marriage in any form between her and O. P. Accordingly, she is not entitled to any relief in this case. These two issues are, accordingly, answered against her. "1. 2. In the plaint the petitioner had pleaded that there was no marriage and inconsequence no consummation in between the petitioner and the opposite party was performed and that the alleged registration of the marriage under the Hindu Marriage Act was void and a nullity. The learned District Judge, on evidence and the materials on record placed before him, had come to the conclusion so far as Issue No. 1 relating to the maintainability of the suit that the suit was not maintainable in view of the fact that there was no marriage and as such, section 12 had no manner of application. On merit it had found that the opposite party took no attempt to establish that any such marriage was solemnized in between the parties.

He had not examined either the barber or the priest or any important person attending the marriage. He had also not taken any step to prove the registration certificate by calling for the original from the sub Registry Office to show that the petitioner had signed the document. Since there was no marriage, there could not be any question of using force or fraud for solemnizing the marriage. Having regard to the facts and circumstances of the case, there was no scope for applying under section 12 of the Hindu Marriage Act, 1955. Since marriage was not proved, the registration of the marriage could not be accepted as valid and thus there was no question of marriage being consumed. Thus though he had found the issues on merit in favour of the petitioner but the learned Judge refused to grant relief on the ground that the petitioner was entitled to pray for negative declaration before a competent Court of lowest grade of jurisdiction and that the petitioner was not entitled to the relief claimed in the suit. No cross-objection has since been taken against this judgment by the husband/opposite party/respondent. Submission on behalf of the appellant:

( 2 ) MR. Roychowdhury, appearing on behalf of the appellant, contends that it is the