In answering the question the Court relied on the
principle as explained in a Full Bench decision of the
Allahabad High Court in Ananti v. Channu
MANU/UP/0079/1929 : AIR1930All193 . We may
gainfully reproduce the said paragraph:
“The plaintiff chooses his forum and files his suit. If he
establishes the correctness of his facts he will get his relief
from the forum chosen. If ...he frames his suit in a manner
not warranted by the facts and goes for his relief to a court
which cannot grant him relief on the true facts, he will have
his suit dismissed. Then there will be no question of
returning the plaint for presentation to the proper court, for
the plaint as framed, would not justify the other kind of
court to grant him the relief.... If it is found on a trial on the
merits so far as this issue of jurisdiction goes, that the facts
alleged by the plaintiff are not true and the facts alleged by
the defendants are true, and that the case is not cognizable
by the court, there will be two kinds of orders to be passed.
If the jurisdiction is only one relating to territorial limits or
pecuniary limits, the plaint will be ordered to be returned
for presentation to the proper Court. If, on the other hand,
it is found that, having regard to the nature of the suit, it is
not cognizable by the class of court to which the court
belongs, the plaintiff's suit will have to be dismissed in its
entirety.”
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1085 OF 2011
IN
S.C.SUIT NO. 2393 OF 2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Asif Ahmedally porbunderwalla
VERSUS
1. Mrs. Daulat Akbarali Porbunderwalla,)
Citation;2014(1) ALLMR378 Bom,2014(2) MHLJ210 Bom
CORAM : R.D. DHANUKA, J.
DATED : 22nd AUGUST, 2013
By this Notice of Motion, defendant no.7 seeks rejection of plaint under
Order VII Rule 11 of the Code of Civil Procedure, 1908 and also seeks that the suit
be summarily dismissed as not maintainable. Defendant no.7 also seeks in the
alternative that the issue of limitation be framed and decided as a preliminary issue
Motion are as under :-
Plaintiff claims to be one of the beneficiary under the Trust Deed dated 12th
2.
by this Court. Some of the relevant facts for the purpose of deciding this Notice of
June, 1972 whereby a trust known as 'Ali Mohamed K. Porbanderwala Family
Trust' was set up in respect of the land and building situated at Bandra. Defendant
nos. 1 to 4 are the trustees of the said trust. Defendant no.5 is husband of
defendant no.1. Defendant nos. 6 and 7 are children of defendant no. 1 and
defendant no.5. Defendant no.7 claims to be one of the beneficiary under the said
trust. It is the case of the plaintiff that in 1976 defendant nos. 1 and 2 in exercise
of their power under the said trust deed and in collusion with defendant no.5
constructed a industrial estate on the portion of the trust property by the name of
Amar Industrial Estate. Plaintiff was not given any part of the sale consideration
of the industrial units. On 20th June, 1979, defendant nos. 1 to 4 in their capacity
of the said trust executed a lease deed in respect of the trust property in favour of
defendant nos. 5 to 7 for a period of ninety nine years. According to the plaintiff,
the said lease deed provided for payment of Rs.3,000/- per month as lease rental
which was totally inadequate. Value of the lease property according to the plaintiff
at the material time was about Rs.35,11,000/-. It is the case of the plaintiff that
defendant nos. 5 to 7 were placed in possession of the trust property however, did
not take any steps to obtain vacant possession of any construction or to construct
any building as contemplated in the said trust deed. On 20th July, 1979, plaintiff's
grandfather died. On 5th February, 1982, the family arrangement was executed by
In the year 1991, plaintiff filed a suit (8783 of 1991) in the City Civil Court,
3.
various members of the family including defendants herein.
Bombay interalia praying for various reliefs including direction to defendant nos. 1
to 5 to render accounts in respect of the said trust and for access to the records and
documents of the said trust. Defendant nos. 6 and 7 herein were not parties to the
said suit. In the written statement filed by defendant nos. 1, 2 and 5 in the said
suit, those defendants denied that any accounts had been maintained by them in
respect of the trust. Those defendants relied upon the lease deed alleged to have
been executed by plaintiff's grandfather in favour of defendant nos. 5 to 7 herein in
respect of the trust property. Those defendants however did not annex copy of the
lease deed in the said written statement. In that suit, defendant nos. 1, 2 and 5 to
the said suit raised an issue of jurisdiction.
The City Civil Court, Bombay
therefore framed an issue as under :-
“ Whether this court has jurisdiction to entertain and try the
suit in view of the provisions of Indian Trust Act, 1882 ”.
4.
By an order dated 21st June, 1998 passed by the Additional Principal Judge
of the City Civil Court, Bombay, it was held that the said suit filed before the City
Civil Court, Bombay was in relation to the trust and therefore City Civil Court had
no jurisdiction to entertain and try the said suit and this court would have
jurisdiction to entertain and try the said suit. Learned 2nd Additional Principal
Judge by the said order directed that the plaint be returned to the plaintiff for
presentation to the proper court. It was directed that the plaintiff shall present the
same within three weeks from the date of the said order. Relevant part of the said
order reads thus :-
1.
The issue of jurisdiction is answered holding that
this Hon'ble Court has no jurisdiction to entertain and try
2.
the present suit.
In view of what has been stated above, the plaint is
returned to the plaintiff for presentation to the proper
court. The plaintiff shall present the same within 3 weeks
from today. Notice to be given by the plaintiff to the
defendants on any application being made to the Hon'ble
High Court.
5.
It is the case of the plaintiff that by a purported deed of rectification dated 7th
February, 2001, defendant no.1 purported to rectify the Deed of Conveyance dated
1st June, 1956. It is the case of the plaintiff that defendant nos. 1 to 5 had contrary
to the terms of the said trust deed, provisions of the Indian Trust Act and contrary
to the interest of the beneficiaries including the plaintiff purported to create
leasehold right in favour of defendant nos. 5 to 7 herein. On 3rd July, 2001, the
plaintiff filed Short Cause Suit (2393 of 2001) in this court against defendant nos.
1 to 5 who were parties to the said suit filed before City Civil Court, Bombay and
joined defendant nos. 6 and 7 also as party defendants to the said suit interalia
praying for removal of defendant nos. 1 to 4 as trustees of the said trust and to
appoint other persons as trustees, directing defendant nos. 1, 2 and 5 to render true
and proper account, for a declaration that the said lease deed dated 20th June, 1979
was illegal, void and of no legal effect, for possession against defendant nos. 5 to 7
in respect of the trust property. In the alternative to prayers (c) and (d), plaintiff
also sought for an order and declaration that defendant nos. 5 to 7 were trustees in
respect of the trust property and hold the same for the beneficiary of the said trust
including the trustees. Plaintiff also applied for an order and decree declaring that
the deed of rectification dated 7th February, 2001 was illegal, void and of no legal
On 22nd April, 2004, defendant nos. 1, 2, 5, 6 and 7 filed written statement
6.
effect.
in this suit and raised a plea of limitation on the ground that City Civil Court had
returned the plaint to the plaintiff on 21st July, 1998 with a direction to present the
same in the proper court within three weeks whereas the plaintiff has filed this suit
after lapse of 1056 days and the claim thus made in the plaint is hopelessly time
barred. Those defendants also raised a plea that the plaintiff had not taken leave of
this court for such a long delay of 1056 days before filing the present suit and
therefore the suit is liable to be dismissed. On 1st April, 2011, defendant no. 7 filed
this Notice of Motion for rejection of plaint and for other reliefs.
7.
Mr.Rege, learned counsel appearing for defendant no.7 (applicant to the
Notice of Motion) submits that though by an order dated 21st July, 1998, City Civil
Court, Bombay had returned the plaint to the plaintiff for presentation to the proper
court with a direction to file the same within three weeks from the date of the said
order plaintiff filed this suit after for more than three years. It is submitted that in
this suit, there is no reference to the earlier suit filed by the plaintiff.
It is
submitted that the prayers (c) and (f) claimed in this suit were not claimed in the
said suit filed before City Civil Court, Bombay. Defendant nos. 6 and 7 who were
parties to this suit were not parties to the said suit. Learned counsel invited my
attention to Order VII Rule 10 and Rule 10(A) of the Code of Civil Procedure
which reads as under :-
10. Return of plaint.- (1) Subject to the provisions of rule 10A,
the plaint shall at any stage of the suit be returned to be
presented to the court in which the suit should have been
instituted.
Explanation: For the removal of doubts, it is hereby declared
that a court of appeal or revision may direct, after setting aside
the decree passed in a suit, the return of the plaint, under this
sub-rule.
(2) Procedure on returning —On returning a plaint, the Judge
shall endorse thereon the date of its presentation and return, the
name of the party presenting it, and a brief statement of the
reasons for returning it.
10A. Power of court to fix a date of appearance in the court
where plaint is to be filed after its return.- (1) Where, in any
suit, after the defendant has appeared, the court is of opinion
that the plaint should be returned, it shall, before doing so,
intimate its decision to the plaintiff.
(2) Where an intimation is given to the plaintiff under sub-rule
(1), the plaintiff may make an application to the court—
(a) specifying the court in which he proposes to present
the plaint after its return,
(b) praying that the court may fix a date for the
appearance of the parties in the said court, and
(c) requesting that the notice of the date so fixed may
be given to him and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule
(2), the court shall, before returning the plaint and
notwithstanding that the Order for return of plaint was made by
it on the ground that it has not jurisdiction to try the Suit,—
(a) fix a date for the appearance of the parties in the
(b) give to the plaintiff and to the defendant notice of
such date for appearance.
court in which the plaint is proposed to be presented, and
(4) Where the notice of the date for appearance is given under
sub-rule (3)
(a) it shall not be necessary for the court in which the
plaint is presented after its return, to serve the defendant
with the summons for appearance in the suit, unless that
court, for reasons to be recorded, otherwise directs, and
(b) the said notice shall be deemed to be a summons for
the appearance of the defendant in the court in which the
plaint is presented on the date for fixed by the court by
which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule
(2) is allowed by the court, the plaintiff shall not be entitled to
appeal against the Order returning the plaint.
Learned counsel also placed reliance on Order VII Rule 11 of the Code of
8.
Civil Procedure which reads as under :-
11. Rejection of plaint.- The plaint shall be rejected in the
following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails to do
so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the plaint
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of
Rule 9.
to be barred by any law;
9.
Provided that the time fixed by the court for the correction
of the valuation or supplying of the requisite stamp papers
shall not be extended unless the court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp papers, as the
case may be within the time fixed by the court and that
refusal to extend such time would cause grave injustice to
the plaintiff.
Learned counsel for applicant (defendant no.7) would submit that the
plaintiff has not complied with the provisions of Order VII Rule 10(A) by not
presenting plaint returned by the City Civil Court in this Court within three weeks
from the date of the said order. It is submitted that since the plaintiff did not file
any appeal against the said order passed by the City Civil Court, the said order
became final and was binding on the plaintiff. Instead of presenting the same
plaint in this suit, plaintiff however filed this suit after three years. Learned
counsel however fairly submits that this Notice of Motion filed by defendant no.7
would not fall under Order VII Rule 11. It is submitted that this Notice of Motion
for dismissal of suit has been filed on the ground of non-compliance of the
provisions of Order VII Rule 10(A). It is submitted that Notice of Motion is filed
praying for dismissal of suit in view of the non-compliance of the said provisions
by the plaintiff and also the order passed by City Civil Court. Learned counsel
placed reliance on the judgment of this Court in case of St.George Shipping Co.
Ltd. vs. m.v. “Irene P” a foreign flag vessel and others delivered by the Single
Judge of this court reported in 1999 (3) Mh.L.J. 109 and in particular paragraphs
18 to 24 thereof in support of his submission that if the court has returned the
plaint by referring the provisions of Order VII Rule 10, non-compliance thereof
would be not only improper but would also be illegal. Paragraphs 18 to 24 of the
said judgment reads thus :-
18. The next objection that was raised by Mr. Pratap was that
the plaintiffs has filed a Regular Suit No. 611 of 1998 before
the Civil Judge (Senior Division), Bhavnagar, for the same
relief, but the Bhavnagar Court ultimately i.e. on 12-10-1998
passed an order holding that it has no jurisdiction to entertain
and try the suit and consequently the plaint was returned to the
plaintiffs for presentation before the Court having jurisdiction.
Mr. Pratap contended that after this order of the Bhavnagar
Court, it was obligatory on the plaintiffs to present the same
plaint before this Court and it was not open to the plaintiffs to
file a fresh suit. He also further contended that from this order
of the Bhavnagar Court it was clear that Bhavnagar Court had
taken note of the right of the defendant No. 4 as a purchaser of
the ship i.e. defendant No. 1 and as such it was obligatory on
the plaintiffs, if at all the plaintiffs wanted to file the same
plaint to add the defendant No. 4 as defendant or when the
plaintiffs chose to file a separate and fresh plaint before this
Court to join the defendant No. 4 in the suit from the initial
stage but according to Mr. Pratap the same plaint i.e. the plaint
returned by the Bhavnagar Court was not presented by the
plaintiffs before this Court to avoid joining of defendant No. 4
from the first stage, and this according to Mr. Pratap is a mala
fide act on the part of the plaintiffs resorted with a view to
obtain ex parte order against the interest of the defendant No.
4.
19. As against this, Ms. Sethna for the plaintiff relied upon the
provisions of Order VII, Rule 13 of the C.P.C. Order VII, Rule
13 reads as under;
"13. Where rejection of plaint does not preclude
presentation of fresh plaint.---The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not
of its own force preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action."
She therefore contended that after the Bhavnagar Court has
rejected the plaintiffs' plaint by its order dated 12-10-1998, no
illegality was committed by the plaintiffs in not presenting the
same plaint in respect of the same cause of action.
20. I am unable to agree to the submissions made by Ms.
Sethna. This submission was made by Ms. Sethna firstly
because this is not a case where Bhavnagar Court rejected the
plaint under Order VII, Rule 11 and secondly because the
Order of the Bhavnagar Court about the return of the plaint is
under Order VII, Rule 10 of the C.P.C. Order VII, Rule 10
reads as under:-
10 Return of Plaint.---(1) Subject to the provisions of
Rule 10-A, the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit
should have been instituted.
(Explanation- For the removal of doubts, it is hereby
declared that a Court of appeal or revision may direct,
after setting aside the decree passed in a suit, the return
of the plaint under this sub-rule.)
(2) Procedure on returning plaint- On returning a plaint,
the Judge shall endorse thereon the date of its
presentation and return, the name of the party presenting
it, and a brief statement of the reasons for returning it."
Rule 11 of Order VII provides for rejection of the plaint in the
following cases, namely, where it does not disclose the cause
of action where relief claimed is under valued or where the
suit is barred by limitation. This order of rejection of plaint is
totally different from order of return of the plaint which is
done under Order VII, Rule 10 C.P.C. The order of the
Bhavnagar Court will show that after the plaintiffs filed the
Suit No. 611 of 1998 before that Court and the defendants
appeared and raised objection to jurisdiction and thereafter the
said objection to jurisdiction was decided as preliminary issue
and consequently order of the return of the plaint was passed
preceded by finding that Bhavnagar Court has no jurisdiction
to try and entertain the suit and ad-interim order was also
vacated. It is therefore clear that the Bhavnagar Court returned
the plaint by resorting the provisions of Order VII, Rule 10. If
this was so it was not only improper but it was also illegal
because Order VII, Rule 10-A makes special provision about
the procedure to be followed by the Court ordering return of
the plaint. This procedure is very elaborate and it provides
where, in any suit, after the appearance of the defendants, the
Court is of opinion that the plaint should be returned, it has to
intimate its decision to the plaintiffs. After receiving such an
intimation, three options have been given to the plaintiff under
Order VII, Rule 10(2) to make applications under any of the
options. Sub-rule (3) of Rule 10-A further provides that if such
an application is made by the plaintiffs and the plaint is
returned on the ground that the Court has no jurisdiction then
the Court can fix the date for appearance of parties in the
Court in which the plaint is proposed to be presented and give
to the plaintiff and the defendant notice of such date for
appearance. Further provisions of Rule 10-A are about the
contingencies where notice of the date of appearance is given.
21. All these provisions of Rule 10-A of Order VII will clearly
show that the order of return of the plaint has to be followed
by the mandatory procedure of Rule 10-A. This will also make
it clear that the plaintiff has no option to file a fresh suit in that
eventuality i.e. when the plaint is returned under Rule 10 of
Order VII and particularly on the ground of jurisdiction. The
submission made by Ms. Sethna that the plaintiffs was entitled
to file a fresh suit under Rule 13 of Order VII cannot therefore
be accepted.
22. The order of Bhavnagar Court particularly para 13 shows
that the defendant No. 1 had brought it to the notice of the
Bhavnagar Court that the defendant No. 1 has entered into a
Memorandum of Agreement with one Mountain Shipping
Ltd., of Gibraltar on 16-9-1998 to sell the vessel m.v. "Irene
P" who then resold the vessel to Jai Bharat Steel Company,
Bhavnagar, for demolition purpose and the vessel has arrived
in Alang, Bhavnagar, on or about 23-9-1998 and the delivery
was accepted on 4-10-1998. My attention was drawn on
particular order of the Bhavnagar Court by Mr. Pratap in order
to show filing of the fresh suit i.e. filing fresh plaint before
this Court by the plaintiff (without submitting the plaint
returned by Bhavnagar Court along with the order of the
Bhavnagar Court) was a deliberate, intentional and mala fide
act on the part of the plaintiffs because the plaintiffs wanted to
obtain an ex parte order by not joining M/s Jai Bharat Steel
Company as a defendant.
23. As against this, submissions of Ms. Sethna that because the
plaint was required to be filed in the High Court, some
changes were required to be made in the plaint and therefore
the plaint returned by the Bhavnagar Court could not be
presented before this Court, is not at all acceptable. The
provisions of C.P.C. i.e. Order VII, Rule 10, 10-A and 13 are
absolutely clear. No choice is given to the plaintiff when the
plaint is returned under Order VII, Rule 10 or 10-A but to file
the returned plaint before the proper Court. Needless to say
that if such a returned plaint is to be filed before proper Court,
the plaintiff will also have to file the order of that Court which
returned the plaint and considering this legal aspect, the
submissions of Ms. Sethna and explanation given by her
cannot at all be accepted. It is prima facie clear that filing of
the fresh plaint and not filing of the returned plaint and not
filing the copy of the Bhavnagar Court order was done by the
plaintiffs with a mala fide intention of getting orders behind
the back of the defendant No. 4 and by keeping the defendant
No. 4 in dark about the filing of the suit.
24. It is pertinent to note that in the plaint of the present suit,
the plaintiffs has in para 8 given facts about filing of the suit
before the Bhavnagar Court but nothing has been stated
regarding the order dated 12-10-1998 of the Bhavnagar Court
about returning of the plaint for presentation to proper Court.
What the plaintiffs have stated that the ex parte ad interim
order was vacated on an application of the defendant No. 1
strictly on the grounds of jurisdiction i.e. the Court at
Bhavnagar do not possess admiralty jurisdiction so as to detain
the defendant No. 1 vessel. This cannot be considered as a true
statement of fact by the plaintiffs because Bhavnagar Court
not only vacated the injunction but before doing that it ordered
the return of the plaint for presentation before the proper Court
Learned counsel for defendant no.7 submits that plaintiff had no option to
10.
or before the Court having jurisdiction.
file a fresh suit in view of the return of the plaint by the City Civil Court and
particularly on the ground of jurisdiction. It is submitted that the plaint returned to
the plaintiff by the City Civil Court itself ought to have been presented to this
11.
court. No fresh suit could have been filed by the plaintiff.
Mr.Rege, learned counsel submits that there is no disclosure about the order
passed by the City Civil Court in this plaint. It is submitted that since plaint in this
case has been returned by the City Civil Court on the ground of lack of inherent
jurisdiction, same plaint was to be lifted by the plaintiff and ought to have been
presented in this court and amendment could be made subsequently.
It is
submitted that under Order VII Rule 10, plaintiff ought to have disclosed in plaint
as to when cause of action had arisen and also the fact showing the jurisdiction
which has not been done by the plaintiff in this plaint.
Mr.Colabawala, learned counsel appearing on behalf of the plaintiff on the
12.
other hand submits that in view of the statement made by Mr.Rege, learned
counsel appearing for defendant no.7 that Notice of Motion filed by the defendant
no.7 does not fall under Order VII Rule 11 of the Code of Civil Procedure, 1908,
prayer (a) of the Notice of Motion does not survive and has to be rejected. As far
as prayer (b) in the Notice of Motion is concerned, it is submitted by the learned
counsel that if the case of the defendant no.7 would have fallen under Order VII
Rule 11 or under section 9(A), the court cannot dismiss the suit at this stage. It is
submitted that Order VII Rule 10 or Rule 10(A) does not give any power to the
court to dismiss suit at preliminary stage and such issue has to be taken up at the
final hearing. In so far as prayer (c) of the Notice of Motion that in the alternative
to prayers (a) and (b), this court shall frame a issue of limitation and to decide the
said issue as a preliminary issue is concerned, reliance is placed by the learned
counsel on the Order dated 7th November, 2003 passed by Mr.Justice V.M.Kanade
in Notice of Motion No. 1725 of 2001 filed by the plaintiff. This court after
considering section 10 of the Limitation Act, which is applicable to the suit against
the trustees and their representatives and after considering the judgment of the
Supreme Court, this court considered the issue of limitation raised by defendant
no.7 in the said order. It has been held that though plaintiff in this suit had not
given any reasons as to why this suit could not be filed within a period of three
weeks, however looking at wording of section 10 of the Limitation Act, in view of
non obstant clause, this suit cannot be held to be barred by law of limitation
specially when it is a suit which is filed against the other proceedings challenging
the lease deed in favour of defendant nos. 3 to 5 who are also trustees of the
private trust. Mr.Colabawala, learned counsel appearing on behalf of the plaintiff
further submits that in view of rejection of plea of limitation already raised in the
said Notice of Motion No. 1505 of 2001 by defendant no.7, said issue cannot be
raised once again in this Notice of Motion. It is submitted that in view of section
10 of Limitation Act, such suit filed by the plaintiff herein shall not be barred by
any length of time.
13.
Mr.Colabawala, learned counsel appearing on behalf of the plaintiff invited
my attention to the averments and prayers made in this plaint and submits that this
suit is not against the same defendants who were parties to the suit filed before the
City Civil Court, Bombay or for the same reliefs. Defendant nos. 6 and 7 in this
suit were not parties to the said suit filed in City Civil Court, Bombay. It is
submitted that except prayer (b), which is identical to prayer (d), all other prayers
are different. Mr.Colabawala submits that there is new cause of action based on
the lease deed which is subject matter of this suit. It is submitted that prayer (a) in
this suit is for removal of trustees which relief was not claimed by the plaintiff in
the suit filed in the City Civil Court, Bombay. It is submitted that even other
reliefs claimed in prayers (c), (d) and (e) were not claimed in the City Civil Court
suit.
In the alternative to the submission aforesaid Mr.Colabawala, learned
14.
counsel for the plaintiff submits that City Civil Court did not have jurisdiction to
return the plaint on the ground that City Civil Court did not have jurisdiction to
entertain the subject matter of the said suit. It is submitted that City Civil Court
could in such circumstances only dismiss the said suit and could not have returned
the plaint for presentation in this court.
Mr.Colabawala, learned counsel for the plaintiff placed reliance on the
15.
judgment of the Supreme Court in case of Hanamanthappa and another vs.
Chandrashekharappa and others reported in (1997) 9 SCC 688 and in particular
paragraphs 2 and 3 in support of his submission that on return of plaint under
Order VII Rule 10(A) of Code of Civil Procedure, 1908 by a court, plaintiff can
either challenge the said order before an appellate forum or represent to the court
having territorial jurisdiction to entertain the suit and the suit would be a suit filed
afresh subject to the limitation, pecuniary jurisdiction and payment of court fees.
Learned counsel would submit that this suit cannot be dismissed on the ground that
the averments made by the plaintiff in this suit were not made in the suit filed
before the City Civil Court, Bombay. Paragraphs 2 and 3 of the said judgment in
case of Hanamanthappa and another (supra) reads as under :-
2. Admittedly, the respondents filed O.S. No. 158/94, in the
Court of District Munsiff, Navalagund. On grounds of lack
of territorial jurisdiction the plaint was returned for
presentation to the proper Court. Accordingly, after making
necessary amendment to the plaint the respondents
represented the suit, which came to be numbered as O. S.
No. 10/91, in Civil Court at Dharwad. The petitioners filed
an application under Order VII, Rule 10, C. P. C. for
dismissal of the petition on the ground that the plaint was
materially altered, without seeking permission for
amendment of the plaint as required under Order VI, Rule
17, C. P. C. The High Court dismissed the petition.
3. It is contended by Shri Kulkarni, learned Counsel for the
petitioners, that since the petition had been filed with
amended averments in the plaint, necessarily it must be
treated to be a fresh plaint and not one after representation to
the proper Court. We find no force in the contention. The
object of Order 7, Rule 10A is that the plaintiff, on return of
the plaint, can either challenge in an appellate forum or
represent to the Court having territorial jurisdiction to
entertain the suit. In substance, it is a suit filed afresh subject
to the limitation, pecuniary jurisdiction and payment of the
Court fee as had rightly been pointed out by the High Court.
Therefore, it cannot be dismissed on the ground that the
plaintiff made averments which did not find place in the
original plaint presented before the Court of District
Munsiff, Navalgund. It is not always necessary for the
plaintiff to seek amendment of the plaint under Order VI,
Rule 17, C. P. C. At best it can be treated to be a fresh plaint
and the matter can be proceeded with according to law.
Under those circumstances, we do not think that (here is any
error of law committed by the High Court in giving the
above direction.
16.
Relying upon the aforesaid judgment of the Supreme Court, learned counsel
for the plaintiff would submit that judgment of the Single Judge of this Court
reported in St.George Shipping Co. Ltd. (supra) is contrary to the principles laid
down by the Supreme Court in case of Hanamanthappa and another (supra) and
thus judgment delivered by the learned Single Judge in that matter cannot be relied
17.
upon as a precedent.
Mr.Colabawala, then placed reliance on the judgment of this Court in case of
Hirachand Succaram Gandhy and others vs. G.I.P.Ry. Co. reported in AIR 1928
Bombay 421 and particularly paragraphs on page 421 and 422 which reads thus :-
It is urged on behalf of the appellants that Section 80 of
the Civil Procedure Code has not been properly
construed, that the suits were already instituted in the
First Class Subordinate Judge's Court, that the suits in
the District Court were merely continuations of those
suits and therefore no notice under Section 80 of the
Civil Procedure Code was necessary, and that the notice
given under Section 149 of the Indian Railways Act was
a sufficient notice. In support of the contention that the
suit in the District Court was a continuation of the
previous suit, reliance is placed on Order XXII, Rule 10,
of the Civil Procedure Code, and the decision in
Chunnilal v. Abdul All Khan . If the plaints had not been
returned by the First Class Subordinate Judge for
presentation to the proper Court and the suits had been
tried by the First Class Subordinate Judge, it could have
been said that the suits were continued against the
Secretary of State, who was added as a party, under
Order XXII, Rule 10. Jurisdiction is now given to the
Subordinate Judge to try suits against State managed
railway companies by Bombay Act VI of 1926, but in
the present case the plaints were returned for
presentation to the proper Court before Bombay Act VI
of 1926 came into force. Under Section 32 of Bombay
Civil Courts Act, XIV of 1869, the First Class
Subordinate Judge had no jurisdiction to try a suit in
which the Government was a party. See Secretary of
State
v.
Narsibhai
MANU/MH/0099/1923
:
AIR1924Bom65 . The First Class Subordinate Judge
was, therefore, justified in returning the plaints for
presentation to the District Court under Order VII, Rule
10. When a plaint is returned for presentation to the
proper Court and is in fact presented to the Court having
jurisdiction, it cannot be said that the previous suit
instituted in a Court having no jurisdiction was
continued in the Court which had jurisdiction to try the
suit. Under Section 26 of the Civil Procedure Code,
"every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed."
Under Order IV, Rule 1, "every suit shall be instituted,
by presenting a plaint to the Court or such officer as it
appoints in this behalf," and under Rule 2 "the Court
shall cause the particulars of every suit to be entered in a
book to be kept for the purpose and called the register of
civil suits, and such entries shall be numbered in every
year according to the order in which the plaints are
admitted."
On presentation of the plaints in the District Court,
the suits were entered in the register of civil suits of the
District Court. The presentation, therefore, of the plaints
in the District Court was an institution of the suits under
Section 26 and the provisions of Order IV of the Civil
Procedure Code. Under Section of the Indian Limitation
Act, the time occupied in prosecuting the previous suite
shall be excluded in computing the period of limitation
for the fresh suits instituted in the District Court. In
Hedlot v. Karan , it was held that the combined effect of
Section 57 of the old Civil Procedure Code
(corresponding to Order VII, Rule (10)), and Section of
the Indian Limitation Act was at when the plaint was
returned to be presented in a Court of competent
jurisdiction, the suit was to be considered as instituted on
the date of such presentation, and the plaintiff should
amend the plaint so as to include all intermediate
transactions between the date of the first presentation
and the date of the presentation to the competent Court.
To the same effect are the decisions in the cases of
Bimala Prosad Mukerji v. Lal Moni Devi and Mohidin
Rowthen v. Nallaperumal Pillai.
Mr.Colabawala, learned counsel placed reliance on the judgment of this
18.
Court in case of M/s.Vishnu Horticultural Pvt. Ltd. & Anr. vs. M/s.Shampiyan
Viniyard Ltd. & Ors. reported in 2010 (1) ALL MR 149 and in particular
paragraphs 9 and 13 in support of his submission that when the plaint is returned
for the presentation to the proper court and is presented in that court, the suit can
be deemed to be instituted in the proper court only when the plaint is presented in
that court. After the plaint is presented in the proper court, it cannot be treated as
continuation of the proceedings of the court which had no jurisdiction, but a suit
would commence from the stage of its institution on the date when the plaint
would be presented to the proper court. It is submitted that after the return of the
plaint, it is presented in the appropriate court, the suit would have to be treated as a
fresh suit and it can proceed in accordance with law from the stage of its
presentation subject to the provisions contained in Rule 10(A) of the Order VII of
the Code of Civil Procedure, 1908. Reliance is placed on paragraphs 9 and 13 of
the said judgment which read as under :-
9.
In Hanamantthappa's case (supra) a civil suit had
been filed. The plaint was returned for its presentation to the
proper court. The plaintiff after making necessary
amendment in the plaint represented it. The defendant took
up the plea that amendment could not be made in the plaint.
The Supreme Court held that it is a fresh plaint and the
amendment could be made in the plaint presented. In
paragraph 3 of the Judgment, the Supreme Court observed
thus:-
"The object of Order VII, Rule 10-A is that the
plaintiff, on return of the plaint, can either challenge
in an appellate forum or represent to the court having
territorial jurisdiction to entertain the suit. In
substance, it is a suit filed afresh subject to the
limitation, pecuniary jurisdiction and payment of the
Court fee as had rightly been pointed out by the High
Court. Therefore, it cannot be dismissed on the
ground that the plaintiff made averments which did
not find place in the original plaint presented before
the Court of District Munsiff,Navalgund. It is not
always necessary for the plaintiff to seek amendment
of the plaint under Order VI, Rule 17 , CPC. At best it
can be treated to be a fresh plaint and the matter can
be proceeded with according to law. Under those
circumstances, we do not think that there is any error
of law committed by the High Court in giving the
above direction." (emphasis suppled)
13. The law is now clear. When a plaint is returned for
presentation to the proper court and is presented in that
court, the suit can be deemed to be instituted in the proper
court only when the plaint is presented in that court. In
other words, after the plaint is presented in the proper
Court, it cannot be treated as continuation of the
proceedings of the court which had no jurisdiction, but a
suit would commence from the stage of its institution on
the date when the plaint would be presented to the proper
court. In substance, it is a suit filed afresh subject to the
limitation, pecuniary jurisdiction, and payment of the
court fee. Such a suit cannot be dismissed on the ground
that the plaintiff made averments in the plaint, which did
not find place in the original plaint presented before the
court which had no jurisdiction to entertain the same or
which returned the plaint. Similarly a written statement
also cannot be rejected on the ground that the defendant
made averments in the written statement, which did not
find place in the original written statement filed in the suit
before it was returned. It is not always necessary either for
the plaintiff or for the defendant to seek amendment of the
plaint/written statement under Order VI rule 17 of CPC. In
short, where, in any suit, after the defendant has appeared,
the plaint is returned and it is presented in the appropriate
court the suit will have to be treated as a fresh suit and it
can proceed in accordance with the law from the stage of
its presentation subject to the provisions contained in Rule
10-A of Order VII of C. P C.
Mr.Colabawala also invited my attention to the averments made in the plaint
19.
and in particular paragraphs 20 to 22 of the plaint in reply to the submissions made
by Mr.Rege, learned counsel appearing for defendant no.7 that there was no
reference to the earlier suit filed by the plaintiff, written statement filed by
defendants in that suit and the order passed by the City Civil Court, Bombay for
return of the plaint in this suit. Learned counsel submits that the said submission
made by the learned counsel for defendant no.7 is on the face of it contrary to the
averments made in paragraphs 20 to 22 of the plaint. It is submitted that the
plaintiff has not only pointed out in detail about filing of the said suit in the City
Civil Court, written statement filed by the defendants in the said suit but has also
annexed copy of the order dated 21st July, 1998 passed by the City Civil Court to
this plaint. It is submitted that in view of the subsequent events and in view of the
plaintiff having obtained certified copy of the lease deed which was not annexed
by the defendants to the written statement in the said suit, plaintiff has filed this
20.
suit for various reliefs.
Mr.Colabawala, learned counsel placed reliance on the judgment of the
Division Bench of this court in case of Lt.Col.Anil Bhat & Ors. vs. Citibank N.A.,
reported in AIR 2009 Bombay 99 in support of his submission that City Civil
Court once having taken a view that suit was barred on the ground that subject
matter of the suit could not have been tried by the City Civil Court, such a suit
ought to have been rejected and no order for return of the plaint under Order VII
Rule 10 could have been passed. Paragraphs 6 to 8 of the said judgment of the
Division Bench reads thus :-
6.
Let us consider the submission. An added
submission is that even if the Civil Court holds that it has
no jurisdiction over the subject matter then its jurisdiction
to direct return the plaint is limited to those cases relating
to want of territorial or pecuniary jurisdiction. The
argument proceeds on the footing that if the Court has no
jurisdiction over the subject matter, once it holds that it has
no jurisdiction it can pass no further order. In a case of
territorial or pecuniary jurisdiction the Court would have
jurisdiction over the subject matter, but cannot entertain the
proceedings because it does not have territorial jurisdiction
or the claim is not within its pecuniary limits.
Such an issue had come up for consideration before the
Supreme Court in Raizada Topandas and Anr. v.
Gorakhram
Gokalchand
MANU/SC/0227/1963
:
[1964]3SCR214 .
The issue before the Supreme Court was whether on a
proper interpretation of Section 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 the
Court of Small Causes, Bombay, had exclusive jurisdiction
to deal with the same. Relief sought in a Suit filed before
the City Civil Court was that the plaintiff be declared to be
a in lawful possession and the Defendants had no right to
enter into or remain in possession of the shop, injunction
and other consequential reliefs. The defence raised was that
the question involved in the suit related to possession of
the premises as between landlord and tenant and the Court
of Small Causes alone will have jurisdiction to entertain
and try the suit. On these pleadings a preliminary issue was
framed. The City Civil Court held in favour of the
defendants and accordingly made an order that the plaint
be returned to the plaintiff for presentation to the proper
Court. In Appeal before the High Court the Court took a
view that the City Civil Court had jurisdiction. Against that
order Special Leave to Appeal was preferred from which
the Appeal arose. Before the Court the issue was, if the
defendant raised the claim or question as to existence of
relationship of landlord and tenant as to between the
defendant and the Plaintiff the jurisdiction of City Civil
Court is ousted even though the plaintiff pleads that there is
no such relationship and the only Court which has
exclusive jurisdiction to try the suit is the Court of Small
Causes. In answering the question the Court relied on the
principle as explained in a Full Bench decision of the
Allahabad High Court in Ananti v. Channu
MANU/UP/0079/1929 : AIR1930All193 . We may
gainfully reproduce the said paragraph:
“The plaintiff chooses his forum and files his suit. If he
establishes the correctness of his facts he will get his relief
from the forum chosen. If ...he frames his suit in a manner
not warranted by the facts and goes for his relief to a court
which cannot grant him relief on the true facts, he will have
his suit dismissed. Then there will be no question of
returning the plaint for presentation to the proper court, for
the plaint as framed, would not justify the other kind of
court to grant him the relief.... If it is found on a trial on the
merits so far as this issue of jurisdiction goes, that the facts
alleged by the plaintiff are not true and the facts alleged by
the defendants are true, and that the case is not cognizable
by the court, there will be two kinds of orders to be passed.
If the jurisdiction is only one relating to territorial limits or
pecuniary limits, the plaint will be ordered to be returned
for presentation to the proper Court. If, on the other hand,
it is found that, having regard to the nature of the suit, it is
not cognizable by the class of court to which the court
belongs, the plaintiff's suit will have to be dismissed in its
entirety.”
Relying on this principle the Court held, that the view
taken by the High Court was correct. The proposition
which follows is that the power of the Civil Court to direct
return of the plaint is limited to those cases where it has no
territorial or pecuniary jurisdiction. In case if it has no
jurisdiction in respect of the subject matter then it cannot
direct return of the plaint. If this principle is accepted on
the facts of the case then the Tribunal would have no
jurisdiction to direct return of the plaint as it came to the
conclusion that it had no jurisdiction over the subject
matter.
7.
The next question that we are called upon to is to
answer the issue is whether the D.R.T., can exercise all the
powers of a Civil Court under the Code of Civil Procedure.
Return of the plaint is governed by the provisions of Order
7 Rule 10. We have earlier reproduced the relevant
provisions of Section 22(2) of the C.P.C. The power to
return the plaint is not one such power which the Tribunal
and the Appellate Tribunal has been conferred specifically.
In the absence of conferring such power, can the Tribunal
under the powers conferred on it under Section 22(1) direct
return of the plaint. A similar issue had come up for
consideration and stands concluded in the case of Industrial
Credit and Investment Corporation of India Ltd. v. Garapco
Industries Ltd. and Ors. MANU/SC/0372/1999 :
[1999]3SCR759 . The question for consideration before the
Court was whether the Tribunal under the RDB Act had
jurisdiction to grant ad-interim exparte order of injunction
or stay against the defendant on an application filed by the
bank or financial institution for recovery of debt. After
considering the provisions the High Court had taken a view
that the Tribunal had no jurisdiction to grant exparte order.
The Supreme Court reversed the order of the High Court
and observed as under:
“ We, however, do not agree with the reasoning adopted by
the High Court. When Section 22 of the Act says that the
Tribunal shall not be bound by the procedure laid by the
Code of Civil Procedure, it does not mean that it will not
have jurisdiction to exercise powers of a Court of Civil
Procedure. Rather, the Tribunal can travel beyond the Code
of Civil Procedure and the only fetter that is part on its
powers is to observe the principles of natural justice.”
Considering the language of Section 22 the Court observed
as under:
“We have to give meaning to Section 22 of the Act as here
the Tribunal is exercising powers of a Civil Court while
trying a money suit. Further, when power is given to the
Tribunal to make interim order by way of injunction or
stay, it inherits in it the power to grant that order even ex
parte, if it is so in the interest of justice and as per the
requirements as spelt out in the judgment of this Court in
Morgan's case which has been quoted above.”
We need not refer to in detail the judgment in the case of
Morgan Stanley Mutual Fund v. Kartick Das
MANU/SC/0553/1994 : (1994)4SCC225 . There the Court
was considering Section 14 of the Consumer Protection
Act, 1986, which section did not provide for grant of any
interim relief or even ad-interim relief and provided only
for final relief. The Supreme Court there laid down the
principles to be taken into consideration by Court or
Tribunal in granting ex-parte injunction. Apart from the
other general principles the Supreme Court took the view
that the exparte order should be granted only under
exceptional circumstances and that grant of exparte order is
not a rule but an exception." Considering the judgment in
Grapco Industries Ltd. (supra) the proposition follows that
even though there is no specific power conferred on a
Tribunal under the RDB Act, considering Section 22(1) the
Tribunal though not bound by the procedure laid down in
the Code of Civil Procedure is not extinguished of
jurisdiction to exercise powers of a Court under the C.P.C.,
rather the Tribunal can travel beyond the scope of C.P.C.,
but in doing so, the only fetter is to observe the principles
of natural justice. The Tribunal therefore, would have
jurisdiction to direct return of the plaint but in cases limited
to pecuniary or territorial jurisdiction.
8.
Having said so the question still remains whether
after having come to the conclusion that it had no
jurisdiction over the subject matter considering the
principles laid down in Raizada Topandas & Anr (supra)
the Tribunal could have directed the return of the plaint.
The principle which the Supreme Court accepted in
Raizada Topandas & Anr (supra) was that if a plaint as
drafted does not confer jurisdiction on the Court in respect
of the subject matter, then it will have no jurisdiction to
direct return of the plaint. In such a case it will have
jurisdiction limited to the extent of a case of pecuniary and
territorial jurisdiction. If this proposition is accepted then
the learned Tribunal on determination of the issue as to
whether it has jurisdiction over the subject matter could not
have directed the return of the plaint.
Mr.Colabawala submits that under Order VII Rule 10 (A), (i), if the court is
of the opinion that the plaint should be returned, it should, before doing so,
intimate its decision to the plaintiff before return of plaint. It is submitted that
under Order VII Rule 10(A) (2), plaintiff has an option to make an application to
the court, specifying the court in which he proposes to present the plaint after its
return and to pray that the court may fix a date for the appearance of the parties in
that court. It is submitted that no such application was admittedly made by the
plaintiff when the City Civil Court passed an order for return of the plaint. There
is thus no question of complying with any order passed by the City Civil Court in
the said order as canvassed by defendant no.7. It is submitted that under Order VII
Rule 10(A) if such application would have been made by the plaintiff under sub-
rule (2) and if so allowed by the court, in that event the plaintiff would not have
been permitted to file an appeal against the order returning the plaint. Learned
counsel submits that the plaintiff has prayed for various reliefs which were not
prayed in the City Civil Court suit except prayer (b). There is no substance in the
submission made by the learned counsel appearing for the defendant no.7 that the
plaintiff ought to have filed an appeal against the said order passed by the City
Civil Court.
22.
In rejoinder, Mr.Rege, learned counsel appearing for defendant no.7 submits
that all parties to this suit except defendant nos. 6 and 7 are same. It is submitted
that though wording of prayers in the plaint filed in this court are different the
reliefs claimed in this suit and that suit are identical. Learned counsel placed
reliance on the judgment of the Supreme Court in case of Pune Municipal Corpn.
vs. State of Maharashtra & Ors. reported in (2007) 5 SCC 211 in support of his
plea that unless order passed by Bombay City Civil Court was set aside, it had
Pune Municipal Corpn. (supra) reads as under :-
course of law. Paragraph 36 of the judgment of the Supreme Court in case of
36. It is well settled that no order can be ignored
altogether unless a finding is recorded that it was
illegal, void or not in consonance with law. As Prof.
Wade states:
He further states:
"The principle must be equally true even where the
'brand of invalidity' is plainly visible; for there also the
order can effectively be resisted in law only by
obtaining the decision of the Court".
“ The truth of the matter is that the court will
invalidate an order only if the right remedy is sought
by the right person in the right proceedings and
circumstances. The order may be hypothetically a
nullity, but the Court may refuse to quash it because of
the plaintiff's lack of standing, because he does not
deserve a discretionary remedy, because he has waived
his rights, or for some other legal reason. In any such
case the 'void' order remains effective and is, in reality,
valid. It follows that an order may be void for one
purpose and valid for another, and that it may be void
against one person but valid against another.”
23.
Mr.Rege, learned counsel made an attempt to distinguish the judgment cited
by Mr.Colabawala, learned counsel appearing for the plaintiff on the ground that
there was no liberty granted to the plaintiff by City Civil Court to file fresh suit.
REASONS AND CONCLUSION
24.
As far as prayer (a) of the Notice of Motion i.e. for rejection of plaint under
Order VII Rule 11 is concerned, in view of the submission made by the learned
counsel appearing for defendant no.7 that this Notice of Motion filed by defendant
no.7 does not fall under Order VII Rule 11, prayer (a) is rejected on that
submission alone. Even otherwise on bare reading of Order VII Rule 11, plaint
cannot be rejected on the ground of alleged non-compliance of order passed by
court for return of the plaint under Order VII Rule 10 of Code of Civil Procedure,
1908 by invoking any of the provisions under Order VII Rule 11.
As far as prayer (b) for dismissal of suit is concerned, perusal of the plaint
25.
filed in this suit indicates that except prayer (b) in this suit, all other prayers were
not subject matter of the said suit filed in the City Civil Court. Defendant nos. 6
and 7 who are parties to this suit were not parties to the said suit filed in the City
Civil Court. Plaintiff in this suit has also applied for removal of defendant nos. 1
to 4 as trustees, for declaration that lease deed dated 20th June 1979 was illegal,
void and of no legal effect has applied for vacant possession from defendant nos. 5
to 7, has applied for declaration that the deed of rectification dated 7th February,
2001 are illegal, void ab-initio and of no legal effect. The cause of action in this
suit in my view is different. In my view there is no substance in the submission
made by defendant no.7 that since avermetns made in this suit were not made in
the plaint filed before City Civil Court, this suit is not maintainable on that ground.
There is also no substance in the submissions made by defendant no.7 that in view
of the order of return of plaint by the City Civil Court to the plaintiff for
presentation before the proper court having jurisdiction, plaintiff ought to have
lifted the plaint returned by the City Civil Court and ought to have presented the
same plaint in this court without carrying out any amendment. This issue has been
already decided by the Supreme Court in case of Hanamanthappa and another
(supra) that the object of Order VII Rule 10(A) is that plaintiff, on the return of the
plaint, can either challenge the said order before appropriate forum or represent to
the court having territorial jurisdiction to entertain the suit. It is held that the suit
filed afresh should be subject to the limitation, pecuniary jurisdiction and payment
of the court fee and therefore it cannot be dismissed on the ground that the plaintiff
made averments which did not find place in the original plaint presented before
the court having no jurisdiction. It is held that it is not always necessary for the
plaintiff to seek amendment of the plaint under Order VI, Rule 17 of the Code of
Civil Procedure, 1908. At best it can be treated to be a fresh plaint and the matter
can be proceeded with according to law. In my view plaintiff was not precluded
from filing this plaint with addition of parties and with new cause of action. In my
view, these proceedings would not be treated as proceedings in continuation of the
proceedings filed before the City Civil Court by the plaintiff but would be a fresh
suit subject to limitation, pecuniary jurisdiction and payment of court fees.
26.
Learned Single Judge of this Court in case of M/s.Vishnu Horticultural Pvt.
Ltd. & Anr. (supra) has followed the judgment of the Supreme Court in case of
Hanamanthappa and another (supra) and has held that a suit filed after return of
the plaint afresh would be subject to limitation pecuniary jurisdiction and payment
of court fees and such suit cannot be dismissed on the ground that the plaintiff
made averments in the plaint, it did not find place in the original plaint presented
before the court which had no jurisdiction to entertain the same or which returned
the plaint. Such suit will have to be treated as a fresh suit and can proceed in
accordance with law from the stage of its presentation.
27.
In my view, even if an averments made in this plaint were not made in the
earlier suit or the reliefs claimed in this suit were not made in the earlier suit, this
suit can not be dismissed on such grounds. The plaintiff is entitled to file a fresh
suit for different cause of action.
On perusal of the plaint, it is clear that the plaintiff has not only referred to
28.
the plaint filed before the City Civil Court, Bombay but has also referred to the
written statement filed by the defendants in the said suit and has also annexed copy
of the said order passed by the City Civil Court for return of the plaint. In my
view, the submission made by the learned counsel appearing for the defendant no.7
that there was no such reference in this suit about such proceedings is factually
29.
incorrect.
On perusal of the judgment delivered by the Division Bench in case of
Lt.Col.Anil Bhat & Ors. (supra), it is clear that once the court has not returned the
plaint on the ground of lack of pecuniary or territorial jurisdiction of that court but
had come to the conclusion that the court did not have jurisdiction to entertain
such suit on the ground that subject matter of the suit was beyond the jurisdiction
of that court, such court could not have passed an order for return of plaint but
ought to have dismissed the suit on the ground of lack of jurisdiction. In my view,
Mr.Colabawala, learned counsel appearing for the plaintiff is right in his
submission that the order passed by the City Civil Court for return of the plaint
itself was contrary to the law laid down by the Division Bench of this court.
30.
As far as issue of limitation raised by defendant no.7 on the ground that the
plaintiff did not file the suit within three weeks from the date of the order passed
by the City Civil Court for return of plaint as directed in the said order, this suit is
barred by law of limitation is concerned, this court has already negatived such
contention raised by defendant no.7 in the Notice of Motion filed in the same suit
by the plaintiff by order dated 7th November, 2003 in Notice of Motion No. 1725
of 2001. This court considered the judgment of the Supreme Court and also
section 10 of the Limitation Act and held that in view of section 10 of Limitation
Act, this suit was not barred by law of limitation. The said order passed by this
court has not been challenged by defendant no.7. In my view such plea cannot be
raised once again in this Notice of Motion and therefore said plea as well as prayer
(c) of the Notice of Motion is rejected.
31.
As far as judgment of Supreme Court in case of Pune Municipal Corpn.
(supra) relied upon by defendant no.7 is concerned, it has been held by the
Supreme Court that no order can be ignored altogether unless a finding is recorded
that it was illegal, void or not in consonance with law. On perusal of the order
passed by the Division Bench of this court in case of Lt.Col.Anil Bhat & Ors.
(supra), it is clear that City Civil Court could not have passed order for return of
plaint once having come to the conclusion that the subject matter of the said suit
was beyond the jurisdiction of that court. In any event, plaintiff was not precluded
from filing the fresh suit for a different cause of action. The judgment of the
Supreme Court thus placed reliance upon by defendant no.7 is of no assistance to
the defendant no.7.
On perusal of written statement filed by defendant no.7 in this suit, it is clear
32.
that defendant no.7 had filed written statement in this suit as far back as on 22nd
April, 2004 in which those defendants have raised plea of limitation alleging non-
compliance of the order passed by the City Civil Court whereas this Notice of
Motion has been filed by defendant no.7 on 1st April, 2011. In my view, in view of
such gross delay on the part of the defendant no.7 in filing this Notice of Motion,
no relief can be granted by this Court in this Notice of Motion for dismissal of the
suit on the ground setout in the affidavit in support or otherwise.
In my view, no case is made out for grant of any reliefs claimed in the
33.
34.
Notice of Motion.
Notice of Motion is thoroughly misconceived and deserve to be dismissed.
I, therefore, pass the following order :-
(a) Notice of Motion is dismissed.
(b) Parties are directed to exchange draft issue within four
Suit to be placed on board for framing issues after six
weeks from today.
No order as to costs.
[R.D. DHANUKA, J.]
(d)
ig
(c)
weeks from the date of this order.
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