Janta Travels Pvt. Ltd. vs Punjab Chemi-Plants Ltd.
1994 Latest Caselaw 172 Del

JUDGMENT

C.M. Nayar, J.

(1) The Present Appeal Has Been Filed Against The Order Dated 31/03/1992 Passed By Shri G.S.JUGTI, Additional District Judge, Delhi In Suit No. 88/91.

(2) The Facts Briefly Stated Are That A Suit For Recovery Of RS. 92,969.00 Was Filed by The APPELLANT/PLAINTIFF Against The defendant/RESPONDENT. The Appellant Had Pleaded That Under A Contract, There Was An Agreement To Supply 30 Tickets of Air India For The Labour Force Recruited By The Respondent For Their Baghdad Projects In terms Of The Orders Of The Respondent For The Value Of RS. 1,29,870.00. The Bill NOS.509-515 Dated November 17, 1984 For The Above Said Amount Were Received By THERESPONDENT. In Accordance With The Above Said Bills, The Respondent Issued Cheque NO.528272 Dated 18/12/1994, For RS. 1,29,870.00 Drawn On State Bank Of India, Mohali, but on presentation, the said cheque was dishonoured. Despite repeated demand, as contained in the letters, which were placed on record by theappellant, the respondent did not pay the amount due. It is further stated that vide its letter dated 2/07/1985, the respondent had remitted to the appellant the part payment of Rs. 70,000.00 at Delhi vide Demand Draft No. 450905 dated 2/07/1985,drawn on State Bank of India, New Delhi, in favor of the appellant thereby leaving a sum of Rs. 59,870.00 as balance. The appellant has claimed this amount as price of the above said air tickets and also interest thereon at the rate of 15 per cent per annum as against the total amount of Rs. 1,29,870.00 from November 17,198 4/07/1985 and on the balance amount of Rs. 59,870.00 from 3/07/1985 till the date of filing the suit.

(3) The respondent filed written statement raising a preliminary objection that the suit was not maintainable on the ground that the Court had no jurisdiction and the cause of action arose at Chandigarh and not at Delhi and also on the ground that no amount was due from the respondent, apart from raising other pleas which find mention in the written statement.

(4) The following issues were framed on the basis of the pleadings of the parties." (I)Whether plaintiff is a company incorporated under the Companies Act and plaint has been signed, verified and filed by a duly authorized person on its behalf as alleged? OPP(ii) Whether this Court has the territorial jurisdiction to try the suit asalleged? OPP(iii) Whether the suit is liable to be dismissed u/order 6 Rule 2 Civil Procedure Code asalleged, if so, its effect? OPD(iv) Whether plaintiff is entitled to recover any amount from the defendant, if so how much? OPP(v) Whether plaintiff is entitled to recover any interest. If so, at what rate,for what period and to what amount? OPP(vi) Relief.

(5) The issue on which the Trial Court proceeded to dispose of the matter was issue No. 2 relating to the territorial jurisdiction for trying the suit. The onus of this issue was placed on the appellant to prove that the Delhi Courts had territorial jurisdiction to try the case. The learned Judge heard Counsel for the parties and discussed the law on the subject and came to the conclusion that the Court in Delhi has no territorial jurisdiction to try the matter and decided issue NO.II against theappellant. The following finding was given in respect of relief, issue No. VI: "IN view of the above findings, I hold that this Court has no territorial jurisdiction to try the case. Therefore, I dismiss the suit of the plaintiff,leaving the parties to bear their own costs.Decree sheet be prepared accordingly."

The appellant felt aggrieved by this order and has approached this Court by the present First Appeal.

(6) I have heard learned Counsel for the appellant as well as for the respondent. The sole ground, which is canvassed by Counsel for the appellant is that having held that the Court has no territorial jurisdiction to try the case, the learned Additional District Judge ought to have returned the plaint for proceeding under the provisions of Order Vii Rules 10 and Ioa Civil Procedure Code The said provisions read asfollows:

"O.VIIR10. 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.(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 sub-rule).(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 returningit."

"R.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 hasappeared, the Court is of opinion that the plaint should be returned, it shall,before doing so. Intimate its decision to the plaintiff.(2) Where an intimation is given to the plaintiff under Sub-rule (1), the plaintiff may make an application to the Court-(a) specifying the Court in which he proposes to present the plaint after its return,(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and(e) requesting that the notice of the date so fixed may be given to him and to the defendant.(3) Where an application is made by the plaintiff under Sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,-(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and(b) give to the plaintiff and to the defendant notice of such date forappearance.(4) Where the notice of the date for appearance is given under sub-rule(3)-(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint wasreturned.(5) Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint."

The Counsel has contended that the learned Trial Judge had no jurisdiction to dismiss the suit of the appellant and for passing an order for drawing a decree sheet in view of the fact that the suit was not adjudicated on merits and no decree could be prepared in this regard. He has referred me to the judgment of the Supreme Court in Madan Naik (dead by L. Rs.) and Others v. Mst. Hansubala Devi and Others where the Court held that abatement of appeal for non-substitution under the provisions of Order 22 Rule 9(1),(2) and Order 43Rule l(k) would not imply adjudication on merits. He has compared the facts of that case with the present case on the ground that when the Court was dismissing the suit for want of pecuniary jurisdiction he could only act under the provisions of Order 7 Rule 10 Civil Procedure Code and proceed to return the plaint for presentation in a Court of competent jurisdiction. Reference is made to paragraph 8 of the judgment,which reads as under: "SECTION 2 Sub-sec (2) of the Civil Procedure Code defines 'decree' to mean 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 Section 144 but shall not include anyadjudication from which an appeal lies as an appeal from an order". When an appeal abates for want of substitution as envisaged by Sub-rule (1) of R.9of 0.22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits Sec.11 ofC.P.C. would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22 Rule9(1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal,only course open is to move the Court for setting aside abatement. An order under Order 22 Rule 9(2) Civil Procedure Code refusing to set aside abatement is specifically appeal able under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in Section 2 Civil Procedure Code Section 100 provides for second appeal to the High Court from every decree passed, in appeal by any Court subordinate to the High Court on the grounds therein setout. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under Order 22 Rule 9 appealable as an order would not be a decree and,therefore, no second appeal would lie against thatorder. Such an appeal is liable to be rejected as incompetent."

Therefore, there is force-in the contention that when the Court is not deciding the matter on merits and is only disposing of the issue to hold that it had no pecuniaryjurisdiction, the decree could not have been passed, as an order on the point of jurisdiction does not, in any manner, conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit.

(7) The learned Counsel for the respondent, on the other hand, has contended that the Trial Court dismissed the suit of the appellant and passed a decree thereof. the appellant has not preferred an appeal against the decree dated 31/03/1992,and, as such, the appeal filed by him is not maintainable.

(8) I am not impressed with this argument raised by the Counsel as the matter was decided on the preliminary issue relating to the territorial jurisdiction and the Trial Court only held that the Court had no territorial jurisdiction in the matter andno proceedings took place to decide the issue on merits. In this view of the matter the Trial Court ought to have acted under the provisions of Order 7 Rule 10 C.P.C.and return the plaint and further to act under the provisions of Order 7 Rule IOAC.P.C. and proceed in terms thereof.

(9) The Trial Judge, therefore, had no jurisdiction to go beyond the powers which have been vested in him in law. The only proper course for him, after holding that the Court had no territorial jurisdiction, was to return the plaint and not to dismiss the suit of the appellant. The decree sheet could not have been prepared on the basis of the law as cited in this regard. The Trial Judge has grossly erred in law in disposing of the suit of the plaintiff and passing a decree, when law did not empower him to do so.

(10) The appeal, as a consequence, is allowed. As the suit of the appellant/plaintiff could not have been dismissed the matter is remanded back to the learned Trial Judge with the direction to proceed with in terms of Rules 10 & Ioa of Order VII of the Code of Civil Procedure. There will be no order as to costs.The parties are directed to appear before the Trial Court on 14/04/1994.The record be sent back forthwith.