IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No.4 of 2002. Date of decision: 17.03.2008 Punjab National Bank ….Appellant Versus Bhagat Ram & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.J.L. Kashyap, Advocate. For Respondent-2: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This appeal is directed against the judgment and decree of the learned District Judge, Shimla, dismissing the suit instituted by the appellant-plaintiff. The facts relevant for decision of this appeal may be noticed. The plaintiff instituted a suit in the Court of learned Senior Sub Judge Judge, Shimla, against respondents-defendants on various allegations made therein. Defendant No.2, opposed the grant of relief to the plaintiff-defendant. When the matter was pending before the learned Senior Sub Judge, an objection was taken that 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 the Court lacks pecuniary jurisdiction, therefore, the Court had no jurisdiction to try the suit. It is not disputed before me that the evidence of the plaintiff was recorded before the learned Senior Sub Judge. On 18.4.2000 the learned District Judge records the following order:- “18.4.2000. Present: Shri J.L. Kashyap, Advocate for the plaintiff. Shri Subhash Punshi, Advocate, for defendant No.2. It is stated by the counsel for the parties that the evidence which has been recorded in the court of learned Senior Sub Judge may be treated as evidence led before this court and the same may be used for the purpose of deciding the case. The plaintiff does not want to lead any other evidence except the evidence led in the court of learned Senior Sub Judge, which as per consent of the parties is to be treated to have been led in this court. Now put up for evidence of the defendant no 20.5.2000. Sd/- District Judge, Shimla” On 20.5.2000 evidence of defendant No.2 and one witness recorded and the case was put up on 29.6.2000 for the remaining evidence. Subsequently 3 on 5.10.2000 defendant No.2 closed his evidence. On 1.11.2000, the learned District Judge has ordered:- “01.11.2000 Present: Miss Alka Kashyap, Adv. Vice Shri J.L. Kashyap, Advocate, for the plaintiff. Defendant No.1 ex-parte. Shri S.Punshi, advocate, for defendant No.2. The case was initially instituted in the court of learned Senior Sub Judge, Shimla, in the year 1995. The plaint was returned to the plaintiff by the Senior Sub Judge with the observation that it did not have the jurisdiction as the value of the suit was lower than the upper limit of his pecuniary jurisdiction. In this court, the parties made statements that the evidence recorded by the Senior Sub Judge, when the matter was pending in his court, may be read. But that evidence is not available on record. The same be requisitioned for 29.11.2000. Arguments shall be heard again on that date. Sd/- District Judge, Shimla” When proceedings were pending before the learned District Judge, an application under Section 14 of the Limitation Act was moved by the plaintiff for condonation of delay for having instituted a suit 4 under a bonafide belief before a Court which had no pecuniary jurisdiction. This issue was decided in favour of the plaintiff. The Court observed and held that the evidence recorded in the Court of the Senior Sub Judge, Shimla which has no pecuniary jurisdiction to try the suit cannot be read for determining the issues framed in the suit. The learned Court has gone to the extent of saying that mere statements by the parties that the evidence recorded earlier be read as a part of the proceedings in the Court of learned District Judge, cannot confer jurisdiction on the Senior Sub Judge to adjudicate the matter. Thereafter, the judgment proceeds on the premise that the parties had agreed that the evidence may be read for the purposes of adjudication of the matter which will not confer jurisdiction on the Senior Sub Judge to determine the entire controversy. Ultimately, the confusion created by filing a number of applications has turned the attention of the Court away from the main controversy. Be that it may. All that need be observed is that the matter has been disposed of in a hyper-technical manner without in any manner considering that the preliminary objection regarding pecuniary jurisdiction was raised by the defendant, plaint was returned to the plaintiff-appellant for presentation before the proper Court. This objection was raised at a late stage. It is undisputed that no ground for mis-trial or prejudice has been raised, 5 nor is it anybody’s case that the evidence so recorded before the Senior Subordinate Judge, is ex- parte or that the parties were not alive to the issues which have been framed or no chance of cross- examination granted to the defendants. In these circumstances, the statement made by both the parties that the evidence recorded before the Senior Sub Judge be read in evidence in support of the claim of the plaintiff, should have been considered as one which cut short the trial procedure and not one which was conferred jurisdiction on the Senior Subordinate Judge. What would be result if this statement is over looked? Surely the plaintiff should have got a chance to lead evidence again before the learned District Judge which may not only be time consuming and cumbersome process but also repeating that which had already been said and filling up lacune in the statements already made. Surely, this state of affairs is never contemplated by Section 21 of the Code of Civil Procedure. It is trite that where a Court lacks inherent jurisdiction it cannot be conferred by consent. But the cases of pecuniary and territorial jurisdiction are on a different footing. In any event, no prejudice having been established on the record the learned District Judge was clearly wrong in dismissing the suit of the plaintiff holding that there was no legal evidence on the record. Looked at from any point of view, the 6 judgment of the learned District Judge cannot be sustained. It is accordingly quashed and set aside. The matter is remanded to the learned District Judge, Shimla who shall decide the matter afresh with the material on the record. A direction is issued that the evidence of the plaintiff already recorded by the learned Senior Sub Judge shall be read in evidence. The matter will be determined afresh with such evidence on the record. The parties are directed to appear before the learned District Judge on 8.5.2008. There shall be no order as to costs. March 17, 2008. (Dev Darshan Sud) (aks) Judge.