Bombay High Court
Shri Akola Gujrati Samaj, Through ... vs Akola Municipal Corporation ... on 23 September, 2015
Bench: A.S. Chandurkar
AO80.15.odt 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
APPEAL FROM ORDER NO.80 OF 2015
APPELLANT: Shri Akola Gujrati Samaj, A public
trust duly registered under the
(Ori. Plaintiff)
provisions of Bombay Public Trust
Act, having their office at behind
Head Post Office, Akola tq. and dist.
Akola through President of the Trust
- Mr. Suresh S/o Bhailal Vora.
ig -VERSUS-
RESPONDENT: Akola Municipal Corporation,
Through its Commissioner, Akola.
(Ori. Defendant)
Mr. M. G. Sarda, Advocate for the appellant.
Mr. A. R. Deshpande, Advocate for respondent.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 27-08-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 23-09-2015.
ORAL JUDGMENT :
1. Admit.
2. Heard finally with the consent of the Counsel for the
parties.
3. The question that arises for consideration in the present
appeal is whether the Civil Court after holding that it has no jurisdiction
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to try the suit can direct return of the plaint for presenting the same
before the proper forum.
4. This appeal filed under provisions of Order XLIII Rule 1(a)
of the Code of Civil Procedure, 1908 (for short the Code) takes
exception to the order passed by the trial Court whereby it has held that
the Civil Court had no jurisdiction to try the suit as filed and then
directed the plaint to be returned to the plaintiff for being presented
before the proper forum.
5. The facts relevant for adjudication of the appeal are that it
is the case of the appellant that it is a society registered under provisions
of the Societies Registration Act, 1860 and is also a public trust under
provisions of the Maharashtra Public Trusts Act, 1950. It is running an
educational institution since last many years and the same is being run
on the basis of donations received by the trust from its members and
other donors. A lease of land was granted to the appellant for
construction of a School by the State Government. According to the
appellant, it was exempted from payment of municipal taxes under
provisions of the Maharashtra Municipal Corporations Act, 1949 ( for
short the said Act). However, the respondent - Corporation had issued a
bill for current taxes as well as arrears of taxes for a sum of
Rs.21,79,957/-. Being aggrieved by the aforesaid demand which
according to the appellant was illegal and without jurisdiction, it filed
suit for declaration that said demand was illegal and without
jurisdiction. A declaration was also sought that it was not liable to pay
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municipal taxes as the land and building was used for charitable
purposes. A decree for permanent injunction was also sought seeking to
restrain the Corporation from putting any seal on the building of the
appellant - trust.
6. Along with the suit, the appellant also filed an application
under provisions of Order XXXIX Rules 1 & 2 of the Code seeking
temporary injunction so as to restrain the Corporation from taking any
coercive action for recovery of the taxes as demanded. The respondent
filed an application vide Exhibit-30 under Section 9 of the Code pointing
out that the Civil Court had no jurisdiction to try and entertain the suit
as an alternate statutory remedy was available under Section 406 of the
said Act. This application was replied by the appellant asserting
jurisdiction of the Civil Court. The trial Court on 16-6-2015 framed a
preliminary issue as regards its jurisdiction to try and entertain the suit.
The trial Court after hearing the parties by the impugned
order dated 3-8-2015 came to the conclusion that the suit as filed for
declaration was barred by law and that the Civil Court had no
jurisdiction to try and entertain the same. It held that remedy under
Section 406 of the said Act was available and instead of filing an appeal
under said provision, the suit in question had been filed which was
barred by law. After coming to said conclusion, the trial Court directed
the plaint to be returned to the plaintiff for being presented before the
proper forum. This order is under challenge in the present appeal.
7. Shri A. R. Deshpande, the learned Counsel for the
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respondent raised a preliminary objection to the maintainability of the
appeal on the ground that the order impugned had the effect of holding
that the Civil Court had no jurisdiction whatsoever to entertain the suit
as it was barred by law. In such situation, the aforesaid adjudication
amounted to rejection of the plaint under Section 9A of the Code and,
therefore, an appeal under Section 96 of the Code was maintainable.
It was submitted that under provisions of Order VII Rule 10 of the Code,
the plaint could not be directed to be returned for being presented
before the proper forum and it could be returned only for being
presented to the Court in which the suit should have been instituted. It
was, therefore, submitted that against aforesaid adjudication appeal
under provisions of Order XLIII Rule 1(a) of the Code was not
maintainable.
8. Shri M. G. Sarda, the learned Counsel for the appellant,
however, submitted that considering the direction issued by the trial
Court for returning the plaint for being presented before the proper
forum, appeal under provisions of Order XLIII Rule 1(a) of the Code was
maintainable. It was submitted that aforesaid provision providing
remedy of appeal was clear and as the plaint had been directed to be
returned, the present appeal was maintainable. He submitted that a
somewhat similar direction was issued by the learned Single Judge in
Greave Cotton Limited vs. Pimpri Chinchwad Municipal Corporation Ors.,
2013 (6) ALL MR 871. It was, therefore, submitted that the appeal
deserves to be entertained on merits.
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9. Having heard the learned Counsel at length and having
perused the material placed on record, I am of the view that though the
present appeal is maintainable in view of the direction issued by the trial
court to return the plaint, such direction could not have been issued in
law.
10. As noted above, in the suit filed by the appellant, a
declaration has been sought that the demand of municipal taxes by the
respondent was illegal and without jurisdiction. On an objection being
raised to the jurisdiction of the Civil Court, the trial Court came to the
conclusion that in view of a remedy available under Section 406 of the
said Act, the suit for declaration was barred by law. Perusal of the entire
order passed by the trial Court below Exhibit-30 clearly indicates that it
has come to the clear conclusion that the jurisdiction of the Civil Court
to consider the prayers as made in the suit was barred by law.
11. Since the trial Court has directed the plaint to be returned
for presentation before the proper forum, reference to provisions of
Order VII Rule 10(1) would be necessary. Said provisions reads thus:
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.
(Emphasis supplied on underlined portion)
The aforesaid provision clearly indicates that the plaint can be returned
to the plaintiff for being presented to the Court in which the suit should
have been instituted. It is only when the Civil Court in which the suit has
been filed comes to the conclusion that the plaint ought to be returned
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for presentation to another Court either on account of lack of its
pecuniary and/or territorial jurisdiction that such direction can be given.
This position is further clear from a reading of provisions of Order VII
Rule 10A and Rule 10B of the Code.
12. The scheme of Rule 10 of Order VII of the Code is thus
clear that the plaint can be directed to be returned only after the Court
comes to the conclusion that the suit ought to have been instituted in
another Court. If, however, the Civil Court comes to the conclusion that
the suit as filed is barred by law due to which its cognizance cannot be
taken by the Civil Court, the question of returning the plaint for its
presentation to another Court in which the suit should have been
instituted would not arise. It would then be a case of the jurisdiction of
the civil Court being barred thereby precluding any contest on merits.
If any statutory remedy under a statute is available to the plaintiff
thereby resulting in a bar to the maintainability of the civil suit, the
question of returning the plaint for being presented before the such
forum would not arise. The expression "suit" as employed in Rule 10(1)
of Order VII of the Code has a definite connotation and a statutory
appeal under Section 406 of the said Act can hardly be equated with a
suit under the Code. The finding that the civil court has no jurisdiction
to entertain the subject matter of the suit has the force of a decree under
Section2(2) of the Code and, therefore, a remedy of appeal under
Section 96 of the Code would be available.
13. In Greave Cotton Limited (supra), the trial Court came to the
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conclusion that the civil suit was not maintainable in view of availability
of a statutory remedy under Section 406 of the said Act. On appeal
being filed by the plaintiff therein, the conclusion as arrived at by the
Civil Court as regards lack of jurisdiction was upheld. Thereafter, on a
prayer being made by the appellant therein that the plaint be directed to
be returned so that its contents would be relied upon along with the
memorandum of appeal before the Appellate Authority, this Court
instead of dismissing the suit directed the plaint to be returned to enable
the plaintiff therein to avail statutory remedy of appeal. Though the
learned Counsel for the appellant sought to support the direction issued
by the trial Court for returning the plaint for availing the statutory
remedy by relying upon aforesaid decision, it is to be noted that the
same is not the ratio of aforesaid judgment. Only on the request made
by the Counsel for the plaintiff therein, the plaint was directed to be
returned. Hence, aforesaid decision cannot assist the case of the
appellant on the ground that similar course was followed by the trial
Court.
14. At this stage, reference can be made to the decision of the
Supreme Court in Raizada Topandas and another. vs. M/s Gorakhram
Gokalchand, AIR 1964 SC 1348 wherein it was observed thus:
"(7) In answering this question it is perhaps necessary
to refer to the general principle which admittedly
governs the question of jurisdiction at the inception of
suits. This general principle has been well explained
in the Full Bench decision of the Allahabad High
Court, Ananti v. Channu, ILR 52 All 501: (AIR 1930
All 193) (FB) and has not been disputed before us. It
was observed there:
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"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 cognisable 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
ig 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."
Aforesaid principle has been followed by the Division Bench of this Court
in Lt. Col. Anil Bhat and ors. vs. Citi Bank, Mumbai, 2009(3) Mh.L.J. 111.
15. It is, therefore, clear that once the Civil Court comes to the
conclusion that it has no jurisdiction to entertain the suit on the ground
that the same is barred due to availability of a statutory remedy under a
statute, there would be no occasion whatsoever to direct return of the
plaint for being presented before the proper forum. Under provisions of
Order VII Rule 10(1) of the Code, the plaint can be returned only for
being presented before the Court in which the suit ought to have been
instituted. Hence, direction No.2 in the operative order dated 3-8-2015
is without jurisdiction and the same is liable to be set aside.
16. Though the learned Counsel for the parties addressed the
Court on the merits of the impugned order and also relied upon various
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decisions, since it has been found that the impugned order has the effect
of dismissing the suit for want of jurisdiction, the remedy under Section
96 of the Code is available to the appellant. Moreover, during pendency
of the present appeal, the pecuniary jurisdiction of the District Court
stands enhanced with effect from 1-9-2015 and, therefore, it would be
open for the appellant to prefer appeal before the District Court under
Section 96 of the Code, if so advised for challenging the order impugned
in this appeal. Hence, it is not necessary to record any findings on the
merits of the challenge to the impugned order.
ig In view of aforesaid discussion, the following order is
passed:
ORDER
(1) It is held that the order passed below Exhibit-30 dated 3-8-
2015 in Special Civil Suit No.67/2014 is an order dismissing the suit
under Sections 9 and 9A of the Code against which remedy of appeal
under Section 96 of the Code is available.
(b) Direction no.2 in the impugned order dated 3-8-2015 is set
aside.
(c) As the present appeal was filed on 13-8-2015 within
limitation, it would be open for the appellant to file appeal under
Section 96 of the Code within a period of three weeks from today, if so
advised. If such appeal is filed within a period of three weeks from
today, the same shall be entertained on merits by the District Court. It is
made clear that this Court has not examined the correctness of the
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conclusions as regards jurisdiction of the Civil Court that have been
recorded by the trial Court.
(d) With a view to enable the appellant to invoke the
jurisdiction of the Appellate Court and seek interim relief, for a period of
three weeks from today, no coercive steps shall be taken by the
respondent in aforesaid matter.
(e) The appeal is partly allowed in aforesaid terms but with no
order as to costs.
JUDGE
//MULEY//
