The discretion to retain a suit in a higher court or return the plaint to a lower court lies with the Subordinate Judge as per Section 15, Civil P.C.

JUDGMENT

B.K. Mukherjea, J. - The petitioners in this rule instituted a suit as plaintiffs in the Court of the Subordinate Judge of Sylhet against the defendants-opposite party claiming recovery of possession of certain lands on establishment of their title to the same. The suit was instituted on 17th January 1940 and the defendants filed their written statement on 28th March 1940 one of their objections being that the suit was overvalued and that it should have been filed in the Court of the Munsif. There was a specific issue raised on this point which was issue 1, and it was worded as follows : "Has the suit been overvalued? Has this Court jurisdiction to try this suit?" The defendants did not press for a hearing of this issue as a preliminary issue, and the plaintiffs in the usual course got an order for local investigation which was conducted by a commissioner who submitted his report on 11th March 1941. Both the plaintiffs and the defendants filed objections to the commissioner's report, and one witness who was the Sub-divisional Magistrate of Sunamgunj was also examined before that Court. After several peremptory dates were fixed for hearing of the suit it was finally transferred to the Court of the Additional Subordinate Judge of Sylhet and it was taken up for hearing by that Court on 11th November 1942. The issue which raised the question of valuation and jurisdiction was brought up first for hearing and the Court on a consideration of the evidence came to the conclusion that the suit was overvalued and should have been filed in the Court of the Munsif. The result was that the plaint was returned to be presented to the proper Court. Against this order the plaintiffs preferred an appeal to the Court of the District Judge of Sylhet. The learned District Judge affirmed the order of the Subordinate Judge but held that as the Subordinate Judge had jurisdiction to try the suit, although it was the duty of the plaintiffs to file it in the Court of the lowest grade, whatever steps were taken by the parties in the Court of the Subordinate Judge ought to be regarded as validly taken, and the suit in the Munsif's Court would proceed from the stage at which it was left by the Subordinate Judge. Later on, however, the District Judge deleted this portion of the judgment in exercise of his powers u/s 151, Civil P.C. It is against this judgment of the District Judge that the present rule has been obtained.

2. The grievance of the petitioners seems to be that they had to incur considerable expenses in the matter of local investigation which was completed in the Court of the Subordinate Judge and all these costs will be thrown away if the suit is now directed to be filed in another Court. It is argued by Mr. Bose who appears on behalf of the petitioners that as the Subordinate Judge did not lack jurisdiction to try the suit even if it was overvalued, the plaint should not have been returned at all having regard to the expenses already incurred by the parties. At any rate, if the plaint was to be returned to be filed in the Court of the Munsif, that Court should proceed with the case from the stage at which it was left in the other Court, and the report of the commissioner who made the local investigation should be treated as made under the direction of the Munsif's Court. It is said that the direction given by the District Judge in this connection in his original judgment was perfectly right and there was no warrant for modifying this portion of the judgment subsequently. We may take it, as has been held by both the Calcutta and the Allahabad High Courts, that Section 15, Civil P.C. lays down a rule of procedure and not of jurisdiction and it does not divest any Court of jurisdiction which it otherwise possesses under the statute constituting such Courts. It was ob. served by Petheram, C.J. in Nidhi Lal v. Mazhar Hosain (85) 7 All. 230, that the word 'shall' in Section 15, Civil P.C., is imperative on the suitor. The word is used for the