This raises a question of some importance regarding the practice and procedure observed in the lower Courts, though

instances like the one in question are not of common occurrence.

The plaintiff in O.S. No. 146 of 1943, on the file of the District Munsiff, Vizagapatam, is the appellant in the second

appeal. He filed the suit, out of which this second appeal arises, in the first instance in the Court of the Subordinate

Judge, Vizagapatam, for the recovery from the defendant of 55 cents of land on the ground that the same was

encroached upon by the defendant. The plaint was presented in the Court of the Subordinate Judge on 3rd February,

1942, by two petitioners, Messrs. C.V. Somayajulu and P. Gangadharam, with a properly executed and attested

vakalat in their favour. The suit was numbered as O.S. No. 10 of 1942, in the usual course and summons was ordered

to the defendant. The defendant who appeared contested that the suit has been overvalued for the, purpose of

pecuniary jurisdiction. It was his case that if the land had been properly valued the suit could have been filed in the

District Munsiff’s Court of Vizagapatam as the property, the subject-matter of the contest, would be worth only a sum

below Rs. 3,000. The learned Subordinate Judge appointed a commissioner to value the properties and the result of the

valuation by the commissioner was that it was found that the suit was of the value of below Rs. 3,000 and therefore

should have been presented in the Court of the District Munsiff as the Court of the lowest pecuniary jurisdiction.

Thereupon the learned Judge directed the return of the plaint on 13th July, 1943. The original plaint was taken back on

the same date as it was returned and presented immediately thereafter on the very date itself before the District Munsiff

of Vizagapatam; but as there was no direction to return the vakalat filed in the Sub-Court along with the plaint it was not

taken back at all by the pleaders. When the plaint was presented again before the District Munsiff, no vakalat was filed.

The reason for not doing so is not apparent from the records and neither of the lower Courts gives any reason why such

a procedure was resorted to. After the evidence was let in, and during the course of the arguments before the District

Munsiff, it was pointed out by the defendant’s vakil that the suit should be dismissed because no vakalat was filed on

behalf of the plaintiff when the plaint was presented in the District Munsiff’s Court. Apparently, this defect was not

noticed till then. Arguments were heard on this aspect of the case and the learned District Munsiff holding; that the

proceedings before his Court cannot be said to be a continuation of the proceedings in the Subordinate Judge’s Court,

came to the conclusion that the provisions of rules 1 and 4 of Order 3, Civil Procedure Code, have not been complied

with and hence held that the plaint was not properly presented and on that ground the suit was dismissed. In his

judgment the learned District Munsiff considered in extenso the evidence on issues 1 to 3 also and gave a finding that the

plaintiff was entitled to recover possession from the defendants of 27.54 cents of land encroached upon by the latter.

Even so, in view of his opinion that the whole proceedings were void as the plaint had. not been properly presented, the

suit was dismissed.

The plaintiff took up the matter in appeal and the learned Subordinate Judge of Vizagapatam during the course of the

hearing of the appeal admitted the original vakalat which had been lying in his own Court as additional evidence under

Order 41, rule 27, Civil Procedure Code, after examining Mr. P. Gangadharam, the junior vakil who presented the

plaint as P.W. 4. The learned Judge was therefore satisfied that when the plaint was originally filed in the Sub-Court,

there was a proper vakalat, though it was not taken back when the plaint was returned and the same was not

re-presented before the District Munsiff. Ac