JUDGMENT Pramada Charan Banerji and Piggot, JJ.
1. This is an appeal from an order passed by the Subordinate Judge of Moradabad in an appeal directing the plaint filed in the case to be returned to the plaintiff for presentation in the proper court. The suit was brought in the court of the City Munsif of Moradabad. One of the pleas taken in defence was that the suit was not cognizable by that court, but should have been brought in the court of the Munsif of Sambhal. The learned City Munsif set down the suit for hearing, framed proper issues, held that the cause of action had arisen within his jurisdiction and gave the plaintiff a decree. On appeal the learned Subordinate Judge held, that no part of the cause of action had arisen within the jurisdiction of the court of the Munsif of Moradabad City. Without going further into the matter, he passed the order now under appeal. That order no doubt could' be passed under the powers of an appellate court as specified in Section 107 of the Code of Civil Procedure and is also covered by the provisions of Order XLI, rule 33, of the same Code. It is, nevertheless, an order returning a plaint to be presented to the proper court such as is referred to in order VII, Rule 10, of the Code of Civil Procedure. An objection has been taken in this Court, to the effect that no appeal lies. On the wording of Order XLIII, Rule 1 (a), we were disposed in any case to over-rule this objection, but we find that the point is covered by clear authority. It was decided under the former Code of Civil Procedure in Wahid-ullah v. Kanhaya Lal (1902) I.L.R. 25 All. 174, that an appeal lay from the order of an appellate court directing a plaint to be returned. Subsequently, in the case of Dalip Singh v. Kundan Singh (1913) I.L.R. 36 All. 58, a Bench of this Court has held that the present Code of Civil Procedure makes no change in the law in this respect. We are, therefore, content to follow these authorities. Assuming that the appeal lies, it raises only one question, namely, whether the lower appellate court has not overlooked the provisions of Section 21 of the Code of Civil Procedure. The case before us is in fact very similar in principle to that of Dalip Singh v. Kundan Singh (1913) I.L.R. 36 All. 58, above referred to, except that in that case reference was made to the provisions of Clause 2 of Section 11 of the Suits Valuation Act (No. VII of 1877), whereas in the present case the question was one of territorial jurisdiction and reference is made to the closing part of Section 21 of the Code of Civil Procedure. We think the appeal must succeed on this ground. The lower appellate court, before allowing the objection as to the place of suing, should have considered whether there had been a failure of justice consequent on the suit having been instituted in the court of the City Munsif of Moradabad instead of in the court of the Munsif of Sambhal in the same district. This point has been altogether overlooked, and we must, therefore, follow the precedent set in the case above referred to by setting aside the order under appeal and sending back the case to the lower appellate court to be re-admitted under its original number in the file of pending appeals and disposed of on the merits. We order accordingly.