Allahabad High Court
Smt. Khursheeda vs State Of U.P. And 3 Others on 17 July, 2017
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 3552 of 2017
Petitioner :- Smt. Khursheeda
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Akhilesh Chandra Shukla
Hon'ble Mrs. Sunita Agarwal,J.
The order dated 25.4.2017 passed by the District Judge, Baghpat in the transfer application filed under Section 24 of the Civil Procedure Code namely Misc. Case No.35 of 2017 (Smt. Khursheeda Vs. Smt. Santosh and others), is under challenge. The contention of the learned Counsel for the petitioner is that the District Judge, Baghpat had jurisdiction to transfer the suit before the appropriate Court i.e. the Court of Civil Judge, (Senior Division), Baghpat, in exercise of powers under Section 24 (5) of the Code of Civil Procedure. There was no justification to ask the petitioner to request for return of plaint under Order 7 Rule 10 and institute the same before the appropriate Court. Reliance is placed upon the judgment of Kandarp Construction India Pvt. Ltd. Vs. Brijesh Pathak and others reported in 2016 (11) ADJ 118.
On a question of jurisdiction being raised by the defendant, an application under Order 7 Rule 10 C.P.C. was moved by the plaintiff which was kept pending and order of status quo had been passed by the Court of Civil Judge, (Junior Division), Court no.1, Baghpat. Ultimately, it was found by the Civil Judge, (Junior Division), Baghpat that the valuation of suit was approximately 14 lakhs and, therefore, it was incompetent to try the same. The plaintiff instead of asking for return of the plaint, moved a transfer application under Section 24 of Code of Civil Procedure. The District Judge, Baghpat has rejected the same saying that as the suit itself was incompetent, it cannot be transferred.
Considering the submissions of learned Counsel for the petitioner and having perused the record, it is more than apparent that the defendants raised objections with regard to the valuation of the suit and the said objections have been sustained by the Court of Civil Judge, (Junior Division), Baghpat.
Order 4 Rule 1 C.P.C. provides for the institution of the suit by presenting a plaint to the Court. The "Court" means the Court of competent jurisdiction. When a plaint is presented in a Court lacking in jurisdiction or proper valuation of the plaint is not disclosed, the Court may reject the plaint under Order 7 Rule 11 or return it for presentation under Order 7 Rule 10 before the appropriate Court wherein the suit ought to have been instituted as the valuation of the suit is directly linked with the jurisdiction of the Court. It is only on the presentation of the plaint in the Court of competent jurisdiction, it will be deemed that the suit had been instituted. The date of presentation of the plaint in the Court of competent jurisdiction would be the date of institution of the suit.
Learned Counsel for the petitioner though denied the fact of filing of the application under Order 7 Rule 10 C.P.C., however, looking to the admitted fact of the case that the suit itself was incompetent and ought to have been instituted before the Civil Judge, (Senior Division), Baghpat, this Court does not find any justification to interfere. It is open for the petitioner/plaintiff to plead the Court concerned for return of the plaint for its proper presentation/institution before the Court of competent jurisdiction.
It is held by the Apex Court in the case of Amar Chand Inani Vs. Union of India reported in AIR 1973 SC 313, that presentation of a plaint in proper Court after it is returned by an earlier Court is not a continuation of the suit which was instituted in the wrong Court. The word "Court" means a proper Court which has jurisdiction to entertain the suit. In Hanamanthappa and another Vs. Chandrashekharappa and others reported in (1997) 9 SCC 688 it has been held that the plaint was returned for presentation to the proper Court, it would be a fresh plaint and not a continuation of the earlier proceeding.
In ONGC Vs. Modern Constructions & Co., reported in (2014) 1 SCC 648, the Supreme Court has said that after return of plaint, presentation thereof before the Court of competent jurisdiction amounts to institution of a fresh suit, requiring commencement of trial afresh. The date of institution of earlier suit filed before the Court which lacked jurisdiction cannot be treated as the date of institution of second suit, which would be the date of presentation of plaint in the Court of competent jurisdiction, after return of the plaint. The subsequent suit after return of plaint cannot be treated as continuation of previous suit.
In the light of the above legal position, the institution of suit by the plaintiff before the Court of Civil Judge (Junior Division), Baghpat cannot said to be a proper presentation of the plaint. The question of transfer under Section 24 (5) of the Civil Procedure Code, therefore, does not arise at all.
In the facts of the present case, the case of Kandarp Construction India Pvt. Ltd. (supra) relied upon by the petitioner's Counsel is distinguishable inasmuch as in that case the suit was contested till the late stage by the defendant and the question of lack of territorial jurisdiction of the Court arose at a later stage. This Court in the facts and circumstances of that case found that the suit could be transferred by the District Judge before the appropriate Court having territorial jurisdiction to proceed with the same. In the instant case, however, the suit itself was instituted before an incompetent Court and the said objection has been taken by the defendant at the very first stage.
It would be open for the petitioner to plead for return of plaint Order 7 Rule 10 before the Court for its presentation to the proper Court. In case such an application is moved, the Court or Civil Judge, Junior Division, Baghpat shall pass an appropriate order on the same strictly in accordance with the provisions of Order 7 Rule 10 read with Rule 10A of Code of Civil Procedure.
Subject to the above observations and directions, the petition is dismissed.
Order Date :- 17.7.2017/Savita
