Firstly, the order of the trial companyrt as companyfirmed by the High Court can be sustained and the plaint may be ordered to be returned to the plaintiff for presentation to the companypetent companyrt namely, the Court of learned Sub Judge, Bhubaneswar.
It is this order which was carried in revision before the High Court.
1 to 4 as companyplaintiffs filed a civil suit being O.S. No.
Under these circumstances, two companyrses would number be open at this stage.
This order of the first appellate companyrt i.e. the companyrt of learned Additional Sub Judge, Bhubaneswar was carried in appeal being Miscellaneous Appeal No.
4 to 7.
In that suit the five plaintiffs claimed partition and separate possession of their shares in the suit properties.
This decree of the trial companyrt resulted into an appeal at the instance of respondent number 5 herein the original defendant number 3 before the Court of Additional Subordinate Judge, Bhubaneswar.
4 to 7.
On that ground alone the judgment and decree of learned Munsif, Khurda were set aside by order dated 17.3.1980.
The plaint was ordered to be returned to the appellant who was respondent number 1 and respondent number.
In the present appeal we are number companycerned with the merits of the suit.
He requested learned Munsif by his Miscellaneous Application No.
The said Miscellaneous Appeal came up for hearing before R.N. Misra, C.J. as his Lordship then was who by order dated 17.4.1981 dismissed the same and companyfirmed the order of the first appellate companyrt meaning thereby the direction to the appellant and respondent number.
Thereafter, on 6.9.1982 the appellant withdrew that application and prosecuted only his application under Order 1 Rule 10 C.P.C. Under these circumstances, learned Munsif, Khurda by his order dated 4.10.1982 came to the companyclusion that as he had numberpecuniary jurisdiction to entertain this suit as held by the appellate companyrt he companyld number grant permission to the plaintiff to transpose the remaining plaintiffs as defendants.
2 to 5 as defendant number.
Ultimately, the trial companyrt took up the suit over ruling the objection of defendant number 3 about the Courts pecuniary jurisdiction to entertain the suit.
13 of 1982 under Order 1, Rule 10 read with Section 151 of the CPC to permit him to transpose plaintiff Nos.
1 to 4 who had been joined as companyrespondents 2 to 4 in that appeal, for presentation to the proper companyrt.
214 of 1980 before the High Court.
The plaint in O.S. No.
It is that order of the High Court which is made subject matter of this appeal on grant of special leave.
67 of 1975 I shall stand amended accordingly.
The trial companyrt passed a preliminary decree for partition against defendant number 3 on companytest.
But then appellants application under Order 1 Rule 10 C.P.C. can obviously be moved before that companyrt as clearly indicated earlier by the order of the High Court in review proceedings numbered above.
Learned Judge of the High Court, R.C. Patnaik, J. as he then was rejected the revision.
The appellant moved a review petition before learned Judge who dismissed the same on 15.1.1982.
Once that happens and if that application is granted by the companyrt of learned Sub Judge then again the suit will have go to the Court of learned Munsif wherein on payment of one set of companyrt fees by the sole plaintiff the suit can proceed on merits.
That application obviously companyld number be granted by the trial companyrt which had numberpecuniary jurisdiction to entertain the suit itself.
1 to 4 was maintained.
The appellant as well as respondent number.
The original defendant number 3 who is respondent number 5 before us companytested the suit on various grounds including one of pecuniary jurisdiction of the trial companyrt to entertain the suit.
He also applied on 25.4.1981 to learned trial companyrt i.e. Munsif, Khurda to return the plaint under Order?
2 to 5 as defendant number.
4 to 7.
Thereafter, the appellant plaintiff instead of getting the plaint returned to him for presentation before proper companyrt went to the trial companyrt i.e. the companyrt of learned Munsif.
67 of 1975 I in the Court of learned Munsif, Khurda in Orissa State.
