Sunday, 14 December 2014

Whether court can dismiss suit when it has no jurisdiction to try said suit?



In my opinion, reading of  Order 7 Rule 10 of the CPC 
shows that in such circumstances, when the Civil Court has held 
that it has no jurisdiction the only course left open was to return 
the plaint to file it in the appropriate forum but it should not have 
dismissed   the   suit.   

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

Second Appeal No.447/1998
Gangabisan Mayaramji paliwal

...V E R S U S...
Sindi Vividha Karyakari Sahakari
Society Ltd. 
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 28.07.2014
Citation; 2014(6) ALLMR 880


After   having   heard   Mr.   Gode,   learned   counsel   for 
respondent no.8, following substantial question of law arises for 
my determination.
(i)
Whether the courts below committed error in  
law in not following the mandate of Order 7 Rule 10 of  
the CPC having concurrently held that the civil Court did  
not   have   jurisdiction   to   try   the   suit   namely;  
Reg. C. S. No. 176/1974 and that the Cooperative Court  
has?
Answer:­
Yes

It is not in dispute that the appellant filed Reg. C. S. 
3.
No. 239/1992 claiming certain reliefs against respondent no.1 and 
the   purchaser   of   his   property   that   was   sold   in   auction   for   non 
payment of dues. The appellant was a member of the cooperative 
society.     The   courts   below,   therefore,   found   that   the   appellant, 
being member of cooperative society and since he was  raising the 

dispute triable under the Cooperative Societies Act in respect of 
the property auctioned by the authorities, the civil court did not 
have jurisdiction to try such a dispute between a member and the 
society.   It is for that reason, both the courts below concurrently 
found   that   it   was   the   cooperative   court   who   would   have 
jurisdiction to entertain and try the dispute under section 91   of 
the Maharashtra Cooperative Societies Act, 1960 and it is on that 
count, the trial court dismissed the suit while the lower appellate 
court confirmed the  decree. The Courts below consequently did 
not address any issue on merits of the suit and only dismissed the 
same on the ground that it had no jurisdiction.
4.
In   this   context,   it   is   necessary   to   go   look   into   the 
provisions of Order 7 Rule 10 of the C.P.C., which read thus:

10. Return of plaint— 
(1) Subject to the provisions of rule 10A, the plaint  
“Order VII Rule 10
shall   at   any   state   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 sub­rule. 
(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.”
5.
In my opinion, reading of  Order 7 Rule 10 of the CPC 
shows that in such circumstances, when the Civil Court has held 
that it has no jurisdiction the only course left open was to return 
the plaint to file it in the appropriate forum but it should not have 
dismissed   the   suit.     As   stated   earlier,   while   deciding   the   suit, 
nothing   was   decided   on   merits.     It   is   against   these   judgments 
passed   by   both   the   courts,   the   second   appeal   was   filed   by   the 
original plaintiff.

Mr.   Gode,   learned   counsel   for   respondent   no.8, 
6.
submitted   that   his   client   is   in   possession   of   the   suit   property 
having  purchased  the  same  and respondent no.8 should not be 
relegated   again,   which   would   result   into   another   round   of 
litigation.   However, this Court is unable to help the purchaser­
respondent   no.8   since   the   proper   and   legal   course   was   not 
followed by the courts below.  Therefore, the only remedy now is 

to exercise power under Order 7 Rule 10 of the CPC and relegate 
the   parties   to   proper   court.     Hence,   I   answer   the   question 
accordingly and pass the following order:
1.
ORDER
Second   Appeal   No.   447/1998   is   partly 
allowed.
2.
Judgment   and   decree   dated   10.01.1995 
passed by Jt. Civil Judge Sr. Dn., Wardha in Reg. 
C.   S.   No.239/1992   and   confirmed   by   judgment 
dated   12.06.1998   by   2nd  Addl.   District   Judge, 
Wardha in Reg. C. A. No. 44/1995 is set aside and 
in its place following order is passed:
(i)
In exercise of powers under Order 7 Rule 10 
of the CPC, plaint in Reg. C. S. No.239/1992 is 
returned to the appellant­plaintiff for being filed 

in the appropriate Court/Cooperative Court within 
a period of eight weeks from today.
(ii) Registry of this Court shall return the plaint 
to the appellant by following the procedure as per 
Rule 10 (2) and also send the entire record and 
proceeding to the Cooperative Court, Nagpur.
(iii) Parties   to   the   suit   to   appear   before   the 

Cooperative Court on 25.08.2014.
(iv) It is  made  clear  that all  the  objections  and 
the matters to be adjudicated by the Cooperative 
Court  are  left  open   for   both  the   sides   for   being 
canvassed before the Cooperative Court including 
the point of jurisdiction on other facets.
(v) The Cooperative Court shall issue notices to 
those parties, who will not remain present on the 
appointed date.
3.
No order as to costs.   


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