However, in the present case, the Court has
rightly come to the conclusion to return the plaint as it
lacks jurisdiction due to the nature of the suit and,
therefore, though he has settled the issue under Order
XIV Rule 2 of the Code of Civil Procedure by virtue of the
wide powers given to the Court, the Court has rightly
returned the suit for presentation before the cooperative
Court. It would not be out of place to mention that in the
case of Prabhakar Bhat (Supra), the Full Bench has held
that “The Court had to aid rather than obstruct the
plaintiff.” Therefore, taking into account this guiding
principle if the plaint is rejected then, it will amount to
dismissal of the suit amounting to decree and the plaintiff
will face hardship as he has to go in the appeal, he will
not get any return of the Court fees and on the other
hand, if the plaint is returned he would not be a loser as
the correct forum is made available.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.415 OF 2014
WITH
CIVIL APPLICATION NO.469 OF 2014
IN
APPEAL FROM ORDER NO.415 OF 2014
CHANDRA PREM SHAH V K. RAHEJA UNIVERSAL PVT. LTD. & ANOTHER)
CORAM : MRS. MRIDULA BHATKAR, J.
ORDER PRONOUNCED ON : 30TH JANUARY, 2015.
Citation;2015(5) MHLJ 714 Bom
By order dated 3rd March, 2014, the learned
Judge of the City Civil Court decided preliminary issue of
jurisdiction against the plaintiffs i.e. present appellants
and ordered that the plaint be returned to the plaintiffs
for presentation before appropriate Court. Against the
said order, present Appeal from Order is filed.
2. The learned counsel for the respondent
objected the maintainability of Appeal against the said
order and contended that though by the said order plaint
is returned, it not to be construed as order passed under
Order VII Rule 10 of the Code of Civil Procedure (for
short called as, “Code”), but it is in fact an order of
rejection of the plaint under Order VII Rule 11 of the
Code or alternatively under Order XIV Rule 2 of the Code
and hence the First Appeal lies against this order and not
an Appeal from Order.
3. The order of return of plaint under Order VII
Rule 10 of the Code, if passed then not a First Appeal
under Order XLI, but an Appeal against Order under
Order XLIII is to be filed. Return of plaint is not a decree
though reasons in brief are required to be recorded in the
said order.
4. In the present matter though the Judge has
returned the plaint, he did not mention under which
provision of the Civil Procedure Code, he has passed the
order. However, the provision empowering the Court to
return the plaint is none but under Order VII Rule 10 of
the Code only. In the present case a relief was sought
against the cooperative society which was added
subsequently and therefore, objection was raised before
the trial Court that it is an issue between a Cooperative
Society and the Member of the said society and therefore,
the Civil Court has no jurisdiction to decide the dispute
between the society and its members. My attention was
drawn to the fact that on 19th June, 2013 the trial Court
framed the issues and thereafter on 6th September, 2013,
Notice of Motion was decided with direction that the
parties to maintain status quo and decide the issue so
framed separately which is as follows :
“Whether this Court has jurisdiction to try and decide the
suit?”
The court also observed that the issue of the jurisdiction
goes to the root of the matter and therefore, it should be
considered as preliminary issue.
5. The learned counsel for the respondent while
objecting the maintainability of the Appeal from Order
submitted that while invoking the powers under Order
VII Rule 10, if the suit is instituted in the wrong Court,
not having either territorial or pecuniary jurisdiction,
then it is to be returned. It was submitted that if at all
there is objection on the ground of subject of the suit
and the Court has no jurisdiction, then the plaint cannot
be returned, but the plaint needs to be rejected under
Order VII Rule 11 Sub clause (d) of the Code. Sub
clause (d) of Rule 11 of Order VII reads thus :
“ 11. Rejection of plaint. The plaint shall be rejected in
the following cases:—
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) where the suit appears from the statement in the plaint
to be barred by any law;”
6. The learned counsel submitted that the
jurisdiction of the Civil Court is expressly barred under the
Maharashtra Cooperative Societies Act, and therefore, the
order cannot be said to be passed under Order VII Rule 10,
but it is the order under Order VII Rule 11, hence Appeal
is not maintainable instead First Appeal should have been
filed. In support of his submissions, he relied on the
judgment of Division Bench of this Court in Ltd. Col. Anil
Bhat and Nadiya Bhat of Delhi vs Citibank N.A.,
reported in A.I.R. 2009 Bombay 99. In the said case there
was an order of rejection of plaint when the respondent
bank filed suit for recovery of security before D.R.T. and
the objection was raised whether after Tribunal came to
the conclusion that it had no jurisdiction over the subject
matter, could it then pass consequential order of rejection
of plaint by exercising powers of Civil Court under the Civil
Procedure code. There is no specific power of rejection of
plaint under the provisions of Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, wherein
section 22 (1) of the Act, provides that the Tribunal shall
not be bound by the procedure laid down by Civil
Procedure Code. The Division Bench of our High Court,
while dealing with the issue has relied on the ratio laid
down by the Supreme Court in Raizada Topandas and
anr vs Gorakhram Gokalchand, reported in (1964) 3
SCR 214. The Division Bench of this Court has
reproduced the ratio laid down in case of Raizada
Topandas (supra), which reads thus :
“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 learned counsel relied on the judgment in
case of Division bench of Calcutta High Court, in
Allahabad Bank vs Shank's (Steel Fab Pvt. Ltd and
ors) reported in A.I.R. 2008 Cal. 96. In para 12 of the
said judgment it has been held that :
“12. In our view, the Court was quite justified in
not returning the plaint in the facts of the
present case, because Order VII Rule 10 speaks
of a situation where either the territorial or the
pecuniary Jurisdiction of that particular Court
is lacking and that such suit is required to be
filed in a different court to which the Code of
Civil Procedure applies having Jurisdiction to
entertain the dispute. This is not a case of lack
of either territorial or pecuniary jurisdiction
of the Trial Court, but is one where the
Statute has created a total bar of
jurisdiction of the Civil Court. The fact that
a Court can invoke the provision of Order
VII Rule 10 only to a case of lack of
territorial or pecuniary jurisdiction will
plainly appear from the language of the
provisions contained in order VII Rules 10 A
and 10B where there is no scope of passing a
direction for appearance of the defendant
before a tribunal or other Special Authority
on representation of the plaint”.
8. Per contra the learned counsel for the
Appellant has submitted that under Order VII Rule 10, of
the Code, a plaint can be returned at any stage of the
suit, therefore, Court has rightly returned the plaint to
the plaintiffs. He relied on the order passed by this Court
in First Appeal No.615 of 2013, in Shamrao Kashinath
Patil vs Hari Gopal Kini (decd) and ors, dated 16th
August, 2013, wherein the Court allowed to convert the
First Appeal No.615 of 2013 into Appeal from Order. He
further relied on the order dated 9th July, 2013 of this
Court in First Appeal No.615 of 2013 wherein similar
order was passed by this Court.
9. At the outset it is clarified that in the above
orders passed by Single Judge of this Court, allowing
conversion from First Appeal to Appeal from Order, the
Single Judge of this court has not discussed this point as
the issue was not argued and simply leave to convert was
sought and it was granted.
10. It is to be considered whether the order passed
by the trial Court which is under challenge in this appeal,
is to be treated under Order VII Rule 10, or under Order
VII Rule 11 or under Order XIV Rule 2 of the code.
Admittedly when the order of rejection of the plaint is
passed by the Court, it is neither for want of pecuniary
nor territorial jurisdiction, but it was held that the Civil
Court cannot entertain the said subject in the plaint, but
it is to be entertained by the other forum. Rule 10 of
Order VII, states that at any stage of the suit plaint can be
returned to be presented to the Court where the suit
should have been instituted. The words, “at any stage”
undoubtedly by plain reading convey that it can be
returned, even at the stage of argument.
11. I could lay hand over the judgment of the Full
Bench of the Bombay High Court in Prabhakar Bhat vsVishwambhar
Pandit, reported in I.L.R. 1884 Vol. III,
p.313,. The Full Bench in the said case had dealt with the
issue of return of the plaint under Section 57 of the old
Code (1882) and rejection of the plaint under Section 53
of the old Code of 1882. The Sections are more or less
identical to Rule 10 and Rule 11 of Order VII of the Civil
Procedure Code (Amended) in 2002. The Full Bench has
taken a view that,
“It is long established practice of this Court as
to the return of the plaints was not opposed
to the earlier law and that it has at least
indirectly been confirmed by the present law.
High Courts from time to time their inception
has been to return or direct return of the
plaint in ordinary cases when the courts of
trial either original suit or at appeal”.
12. After the judgment of Full Bench in
Prabhakar Bhat (supra), the words “at any stage” were
inserted by way of amendment in the section of return of
plaint. Earlier in the corresponding provision under
Section 57 or 52 (old) the said words were absent.
However, Full Bench gave elastic meaning to at what
stage the plaint can be returned holding that it can be
returned at any stage in absence of prohibition of law to
do so. The said ratio by the Full Bench of this Court in
Prabhakar Bhat (supra) though in respect of old Code
of 1882 still holds the field.
13. Division bench of our High Court and Calcutta
High Court, have taken consistent views that plaint can
be returned if Court has no pecuniary or territorial
jurisdiction and if there is bar under the law due to
subject matter involved in the plaint, then it is to be
rejected. The power given under Order VII rule 10 and
Order VII rule 11 are mutually exclusive. First Appeal is
prescribed under Order XLI against the original decree
and not against the order. Sub section (2) Section 2 of
the Code defines decree as under:
“(2) "decree" means the formal expression of
an adjudication which, so far as regards the
Court expressing it, conclusively determines the
rights of the parties with regard to all or any
of the matters in controversy in the suit and
may be either preliminary or final. It shall be
deemed to include the rejection of a plaint
and the determination of any question
within [3]* * * section 144, but shall not
include
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.”
14. Thus, when a suit is decreed, it is finally
adjudicated. However, by virtue of deeming provision in
the definition of Section 2(2), rejection of plaint is a
decree and therefore, first Appeal lies against the order if
the order of rejection of plaint is passed.
15. Clause (d) of Rule 11 of Order VII, lays down
a specific reason of rejection of plaint i.e. “ if it is barred
by any law”. The words, “at any stage” unlike Rule 10 of
Order VII, are not mentioned. The suit can be rejected at
the initial stage on its presentation, so also if at all the
preliminary issue is raised by defendants or even suomotu
by the Court. Civil Procedure Code unfolds the
procedure step by step and thus, there is sequence which
is expected to be followed by the parties and the Court.
The Courts are bound by the discipline of the Code which
is to be observed while instituting suit and conducting
trial. The main leg of arguments of the learned counsel
for the respondents is that once the Court has passed an
interim stage and has settled the issues and an issue
under Order XIV Rule 2 on the point of jurisdiction is
settled and is taken up as a first issue to be decided then,
the finding given under Order XIV Rule 2 is necessarily is
a final adjudication and then the suit is to be dismissed
for want of jurisdiction. The Court has to dismiss it and
the Court cannot return the suit. These submissions are
not acceptable. Even at the appellate stage, under Rule
10B, the Court has power to transfer the suit to the
proper Court as appeal is a continuation of the suit.
Framing of issues does not curtail power of the Court
either to return or to reject the plaint. If on the point of
jurisdiction of the Court, the said point is not decided
earlier at interim stage, then at the time of settling the
issues, the law provides opportunity to the parties to raise
the issue of jurisdiction and also empowers the Court to
decide that issue. Therefore, plaint can be returned not
only at the initial stage, but the words 'at any stage' are
flexible and to be given its full and effective meaning. It
is to be remembered no artificial compartments in the
powers of the Court in return of suit can be made as the
procedure is a handmade of law.
16. In the case of Lt.Col. Anil Bhat (Supra), the
proceedings filed before the Debts Recovery Tribunal
were without jurisdiction and, therefore, it directed to
return the plaint for presentation to the proper Court.
Hence, the said order of Debts Recovery Tribunal was
challenged before the Division Bench. Section 22 of the
Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 lays down the procedural powers
of the Tribunal and it says that it is not bound by the
procedure laid down by the Code of Civil Procedure. It
was questioned that when the Court has no jurisdiction
over the subject matter, then it has no jurisdiction to
pass further orders.
17. In the said case observation of the Supreme
Court in Raizada Topandas (Supra) were referred,
wherein the Supreme Court dealt with the interpretation
of Section 28 of the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947. The suit was filed before
the City Civil Court. The objection was raised and the
City Civil Court held in favour of the defendant. The
High Court set aside the order and held that it is the
plaintiff who can choose the forum and on the basis of
his statements of facts, the jurisdiction is to be
determined initially and it maintained that the City Civil
Court has jurisdiction to entertain the said suit as the
landlord and the tenant relationship was not claimed.
The order of the High Court was maintained by the
Supreme Court. The Supreme Court held that the power
of the City Civil Court to direct the 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 the
return of the plaint.
Apparently, this finding may look supportive
to the submissions of the learned counsel for the
respondent. but, if at all this ratio is understood on the
background of plain reading of Rule 10, then it clarifies
the legal position. In Raizada Topandas (Supra), the
issue was totally different related to scope and
interpretation of Section 28 of the Bombay Rent Act and
the observations were made in that context. The ratio
was laid down mainly in respect of Section 28 of the
Bombay Rent Act.
18. Order VII Rule 10 of the Code of Civil
Procedure reads as follows:
Order VII Rule 10 : Return of plaint. (1) 99[Subject
to the provision 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.
1 [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.
2
[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) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(3) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(4) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(5) xxx xxx xxx
10B. Power of appellate Court to transfer suit to the
proper Court.
(1) Where, …..........................
(2) The ….............................
19. Rule 10 is in three parts, which is 10, 10A and
10B. Rule 10 consists of subrule 1 and 2. This rule
empowers the Court to return the suit to the plaintiff for
presentation in the Court, where the suit should have
been instituted. At the time of returning a plaint, it is
necessary for the Judge to endorse the date for its
presentation and the date of return and also brief
statement of reasons for the return. Rule 10A empowers
the Court to return the suit after the defendant appears.
Then the Court is required to intimate the decision to the
plaintiff. A procedure is laid down under rule 10A how
the order of returning the plaint is to be passed by the
Court by mentioning the Court where it is to be
presented then also fix a date for the appearance of the
parties in the said Court. Rule 10A is amended in 1976
with necessity of obviate the summonses to the
defendants. Rule 10B states that in appeal, the Court has
power to transfer the suit to the proper Court.
20. Thus, Rule 10 contemplates that if a suit is
wrongly filed in the Court then, the Court should return
it to the Court where it should have been instituted.
This rule is applicable and can be invoked only
when there is another Court which has jurisdiction to try
the suit. If no such forum is available, then this Rule is
not applicable. The jurisdiction of the Court is classified
in following three categories;
I) Territorial;
II) Pecuniary; and
III) Jurisdiction with reference to the nature of the
suit.
These three factors have bearing over the inherent
jurisdiction of the Court. If suit is filed before a wrong
forum, then it disables the said Court to go ahead with
the matter as it lacks inherent jurisdiction. Order VII
Rule 10 of the Code of Civil Procedure does not place any
bar in respect of not returning the plaint if there is no
jurisdiction with reference to the nature of the suit. It
simply states that the suit be returned for presentation to
the other Court where it should be instituted.
21. Under Section 9 of the Code of Civil
Procedure, Court has power to try the civil disputes of the
civil nature unless barred either expressly or impliedly.
Thus, if at all other forum is created to entertain and try
any civil dispute, then the suit is to be tried by that
special forum. It can be illustrated by taking example of
Motor Vehicle Act where a Tribunal is established to
decide the issue of compensation and other matters
under the Act. Same is the case of a Family Court.
Wherever there is a creation of the Family Court and such
Courts are available then the petition is to be filed before
the said forum and it is not to be entertained by the civil
Court; which otherwise in the absence of establishment
of Family Courts is triable by the Civil Court and thus,
Order VII contemplates such situation and empowers the
Court to return the suit for presentation before the Court
where it should have been instituted. This depends on
the nature of the suit. Thus, the most important
ingredient of this Rule is availability of another forum for
presentation of the suit. This is a situation where the
plaintiff has erred in presenting the suit in the Court
instead he should have chosen the other forum which is a
correct one. Thus, within the purport of Order VII Rule
10 of the Code of Civil Procedure, if Court comes across
such situation, then the Court is justified in returning the
suit under Order VII Rule 10 of the Code of Civil
Procedure at any time which also includes a stage of
‘after settlement of the issues’. A Court may dismiss it for
want of jurisdiction or return it for want of jurisdiction.
22. I am benefited by the judgment of the Hon'ble
Single Judge of this Court who has dealt with similar
issue in Roda Jal Mehta & Others Versus Homi Framrose
Mehta & Others, reported in AIR 1989 Bombay 359. In
the said matter, the Court was dealing with its power to
receive the plaint under Clause 12 of the Letters Patent.
In the said matter, necessary leave, as the land is situated
out of the territorial jurisdiction of Mumbai, was not
obtained and, therefore, the learned Single Judge relied
on the judgment of the Full Bench in the case of
Prabhakar (Supra) read with the judgment of Division
Bench in the case of Devidutt Ram Niranjan Das Versus
Shriram Narayan Das, reported in 1934 BLR 236 = AIR
1932 Bombay 291. The Division Bench while dealing
with the provisions of leave under Clause 12 of the
Letters Patent has observed as follows:
“As the words 'empower to receive' seem to me
to be important and the meaning is that the
Court on the ordinary original civil
jurisdiction has no jurisdiction even to receive
a plaint where a part of the cause of action
only shall have arisen within the local limits of
the jurisdiction unless leave of the Court shall
have obtained.”
The learned Single Judge in Roda Jal Mehta
(supra) held that :
“If I am not empowered to receive a
plaint, I cannot deal with such a plaint. If I
am not empowered to receive, I cannot keep
it in the records of this Court. I must
necessarily return the plaint to the person who
has tendered such a plaint. I cannot
understand how on this basis I can dismiss the
plaint when I am not empowered to receive the
same.”
23. The ratio laid down by the Hon'ble Single
Judge in Roda Jal Mehta (Supra) enlightens us by
distinguishing a stage of return of plaint and a stage of
rejection of the plaint. A suit cannot be rejected unless it
has jurisdiction to entertain the suit. For lack of inherent
jurisdiction, it is to be returned. Thus, in other words,
the Court should be empowered to receive the plaint and
if at all the Court is not empowered to receive the plaint,
then the Court shall return the plaint under Order VII
Rule 10 of the Code of Civil Procedure. In case of
Allahabad Bank vs Shank’s (Supra) or in the case of
Lt.Col.Anil Bhat and Nadiya Bhat (Supra), the example
of not having jurisdiction under Order VII Rule 10 of the
Code of Civil Procedure are discussed, which are
illustrative. Under Order VII Rule 11 (d) of the Code of
Civil Procedure, when the plaint is rejected, if barred by
any law, the Court has to take a further step after
receiving the plaint and then to apply mind whether it is
barred by any law or not. Such bar should be provided
by law for example, “bar due to ResJudicata”, “bar due to
Limitation Act” and there may be bar under Section 80 or
under Order II Rule 2 of the Code of Civil Procedure etc.
Under such circumstances a suit is to be rejected.
24. It can be argued that while returning the
plaint the Court has to follow the procedure laid down
under Order VII Rule 10 and 10(2) of the Code. Under
Rule 10(2), the Court after putting the endorsement and
giving brief statement of reasons may return it. However,
as per Rule 10A (which was inserted in the Code by way
of amendment in the year 1976), has power to fix a date
of appearance in the Court where the plaint is to be filed
after its return. So it can be argued that how the court
having no jurisdiction over the other court can fix a date
of appearance in the Court where the plaint is to be filed
after its return. Rule 10A is applicable when the
defendant appears in the suit and the Court forms
opinion that the plaint is to be returned and it intimates
the plaintiff accordingly. Thereafter the plaintiff moves
an application and informs that the Court may fix a date
for appearance of the parties in the Court and thereafter
accordingly Court fixes a date for appearance of the
parties in the Court in which the plaint is proposed to be
presented. The object of this provision as stated earlier is
not to interfere in the jurisdiction of the other court, but
it is with a view to curtail unnecessary exercise of
issuance of summons to the defendant when the
defendant is before the Court. Thus, the provision
obviates summons facilitating both the parties to appear
before the other Court. Thus, this provision does not
create any anomaly or clash in the jurisdiction of two
Courts.
25. However, in the present case, the Court has
rightly come to the conclusion to return the plaint as it
lacks jurisdiction due to the nature of the suit and,
therefore, though he has settled the issue under Order
XIV Rule 2 of the Code of Civil Procedure by virtue of the
wide powers given to the Court, the Court has rightly
returned the suit for presentation before the cooperative
Court. It would not be out of place to mention that in the
case of Prabhakar Bhat (Supra), the Full Bench has held
that “The Court had to aid rather than obstruct the
plaintiff.” Therefore, taking into account this guiding
principle if the plaint is rejected then, it will amount to
dismissal of the suit amounting to decree and the plaintiff
will face hardship as he has to go in the appeal, he will
not get any return of the Court fees and on the other
hand, if the plaint is returned he would not be a loser as
the correct forum is made available.
26. Thus, I hold that the order of return of the
plaint passed by the learned trial Judge is correct and
legal and, hence, the present appeal against order under
Order XLIII of the Code of Civil Procedure is
maintainable.
(MRS. MRIDULA BHATKAR, J.)
No comments:
Post a Comment