Subhro Kamal Mukherjee, J.@mdashA suit was instituted in the City Civil Court at Calcutta by the plaintiff/appellant for declaration, damage,
compensation and other reliefs. The suit was valued at Rs. 4,37,8587/- (Rupees Four lakh thirty-seven thousand eight hundred and fifty-eight)
only. Ad valorem Court-fees were paid.
2. The defendant entered appearance in the suit and filed written statement. In the written it was stated that the suit was not maintainable as the
City Civil Court at Calcutta had no jurisdiction to entertain the suit.
3. The learned Trial Judge framed several issues in the suit, but took up the preliminary issues:
(a) as to whether the suit was maintainable in fact and in law; and
(b) as to whether the Court had jurisdiction to try and entertain the suit, for decision.
4. No evidence was adduced by either of the parties.
5. The learned Trial Judge was conscious that at the stage of hearing of preliminary issues regarding maintainability of the suit on the ground of
jurisdiction, it was not possible for the learned judge to go in to the merits of the case as it was possible only after taking evidence of both the
sides. Still, the learned Trial Judge, in substance, dismissed the suit on merits holding the same was not maintainable.
6. We are informed by Mr. Udayan Dutta, learned advocate appearing for the appellant that as no decree was drawn up, he has filed this appeal
as an appeal from original Order, that is, First Miscellaneous Appeal.
7. Mr. Dutta heavily relies upon a decision in the case of Naresh Chandra Das Vs. Gopal Chandra Das, and submits that a Division Bench of this
Court accepted registration of an appeal, filed against an Order directing the plaintiff to take back the plaint holding that the Court had no
jurisdiction to try the suit, as an appeal from original Order.
8. Reliance placed, by Mr. Dutta in the case of Naresh Chandra Das (Supra) is misplaced. In Naresh Chandra Das (Supra) the Trial Court
directed return of plaint on the ground that the Court had no jurisdiction to try the suit. Thus, the Order was passed in exercise of the power under
Rule 10 of Order 7 of the Code of Civil Procedure. Order 43, Rule 1(a) of the CPC provides an appeal from original Order against such Order.
9. In the case in hand, the suit was dismissed. Irrespective of the fact as to whether decree has been drawn up or not, this appeal is to be
classified/as an appeal from original decree. Ad valorem Court-fees are to be paid.
10. We, thus, direct the learned advocate for the appellant to take steps for removal of the defects by classifying the appeal as an appeal from
original decree and by paying the deficit Court-fees with prayer for codonation of delay in depositing such Court-fees. Put up this matter after the
defects are removed with the revised report of the Stamp Reporter.
Asim Kumar Mandal, J.
I agree.