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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