The court has the discretion to return the plaint for presentation to the proper court under Order VII Rule 10(1) of the Code of Civil Procedure, even after finding that it lacks jurisdiction, and dismissal of the suit is not mandatory in such cases.

( 1 ) THIS first appeal from order is sought to be filed under Order 43 Rule 1 (a) Civil Procedure code against the order of Civil Judge, Mohanlalganj, Lucknow, returning the plaint for presentation to proper Court.

( 2 ) THE present suit appears to have been instituted in 1956. Thereafter the defendant filed A written statement but no plea of jurisdiction was taken. There was also a former suit between the parties in which the jurisdiction of the Court was not challenged and, I am told the dispute relating to the former suit is still pending in appeal or revision in this Court. In this case an application for stay was moved by the defendant under Section 10 Civil Procedure Code, perhaps read with Section 151 Civil Procedure Code and the learned Civil Judge passed an order of stay under Section 351 Civil Procedure Code though he appears to have found that the provisions of section 10 Civil Procedure Code would not apply. After the order of stay was passed an application was moved on behalf of the plaintiffs stating that the defendants 1 and 3 had committed default of an earlier compromise entered into between the parties on the 1st February, 1956 and so a prayer for appointment of a Receiver was made. This application for appointment of a Receiver was opposed by the defendants on two grounds. The first was that the suit having been stayed, the Court could not appoint a Receiver, while the second ground was that the Court had no jurisdiction to entertain the suit. The first objection was overruled and the order of appointment of Receiver was upheld right up to this Court. On the point of jurisdiction the then Civil Judge passed an order that this question shall be taken up for consideration at the time of the hearing of the suit. It may be observed that when a preliminary point is raised in a case which affects the very entertainment or maintainability of a suit, it is not always proper to pass an order of hearing the preliminary point at the lime of final hearing of the suit. Such a point should ordinarily be decided at an earlier stage. However, in this case this order was not subsequently adhered to and the objection relating to jurisdiction was heard before the hearing of the suit. The jurisdiction of the Court below was challenged on the basis of territorial jurisdiction and the learned Civil Judge, after going into the evidence of the parties, found that, he had no jurisdiction to entertain the suit and so he ordered the return of the plaint for presentation to proper Court. This appeal has been filed against that order.

( 3 ) THE contention of the learned counsel for the appellant is that the Court below, having found that it had no jurisdiction to entertain the suit, could not order the return of the plaint but it had to dismiss the suit and the order which has been passed by the Court below is thus without jurisdiction. In support of this contention the learned counsel has relied upon the authorities of durga Prasad v. Om Prakash, AIR 1938 All 39, Hira Lal v. Piarey Lal, AIR 1933 All 745, Sitla din v. Mohan, AIR 1937 Oudh 183 and a single Judge case of Baboolal Gyansingh v. Sunderlal munnalal, AIR 1961 Madh Pra 152. I am unable to agree with the argument of the learned counsel and the authorities which have been relied upon do not support the argument of the learned counsel as advanced before me.

( 4 ) THE provision for the return of plaint has been made under Order VII Rule 10 (1) of the Code of Civil Procedure. It gives the Court a discretion to return the plaint at any stage of the suit for presentation to the proper Court. The law does not require the Court to dismiss the suit on the plea of want of jurisdiction. It is only in cases where the plea of jurisdiction has been contested and the evidence of the parties has also been recorded on the merits of the case that the Order of dismissal of the suit for want of jurisdiction has been upheld by the different High Courts. The learned counsel could not