Ziff-Davis Inc. vs Dr. J.K. Jain And Ors.
2005 Latest Caselaw 1649 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The present plaint was presented in this Court originally which was the Court of competent pecuniary jurisdiction. Subsequently by amendment the pecuniary jurisdiction of this Court was increased with the result that directions were passed in all such matters to transfer the cases to the District Courts in pursuance to a notification.

2. In the present case, and in fact in a number of other cases, after such transfer the plaintiffs filed an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and the consequence of such application being allowed was that the District Court cannot have the pecuniary jurisdiction because the valuation of the suit increased. Thus, the Court of competent pecuniary jurisdiction again became the Delhi High Court.

3. In such matters as also in the present cases the District Judge has thereafter transferred the matter to this Court.

4. The limited controversy which arises for consideration is as to whether in such a situation the District Judge was required to return the plaint under Order 7 Rule 10 of the Code or could the District Judge have transferred the matters to this Court. The said Rule reads as under:

Order VII Rule 10- Return of plaint - (1) Subject to the provisions 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.

5. The submission of the learned counsel for the respondent is that the only course of action to be followed by the District Judge was to return such a plaint under Order 7 Rule 10 and thereafter the matter to be represented before the Court of competent pecuniary jurisdiction (which would be the Delhi High Court) and the suit to proceed de novo. Alternatively, it is contended by learned counsel for the respondent that an application should have been filed under Section 24 of the Code whereby this Court could have called for the records of the suit. In this behalf, learned counsel has submitted that such a course was not open for the District Judge in view of the fact that the competency of a Court to exercise powers under Section 24 of the Code is only in respect of a matter which is pending in the same Court or a Court subordinate thereto. Thus, the subordinate Court cannot transfer a matter to a superior Court. Section 24 is as under:

24. General power of transfer and withdrawal - (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same or,

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred of withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceedings" includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

6. Learned counsel for the petitioner on the other hand contends that Order 7 Rule 10 of the Code deals with the situation where the plaint has not been presented before a Court of competent jurisdiction and thus has not been "instituted" before the competent Court. It is thus, submitted that this is not so in the present case.

7. In my considered view, in a normal situation if a Court ceases to have pecuniary jurisdiction, the plaint ought to be returned to be presented before the competent Court. However, the facts in the in present case and in such other similar cases are peculiar arising from a situation where the plaint is originally presented before a competent jurisdiction, but is transferred on account of increase of pecuniary jurisdiction of that Court and thereafter has to actually continue in the same Court where it was originally pending. The transfer has taken place in pursuance to notification issued in this behalf increasing the pecuniary jurisdiction and stating that the suits ought to be transferred to the trial Court. In the past when such pecuniary jurisdiction has been increased, some category of cases have been retained while other categories of cases have been transferred. The notification in this regard was issued in the year 2003 where probate matters and certain arbitration matters were sought to be retained irrespective of their pecuniary jurisdiction. The object of such transfer is only to place the matter before the Court which has now acquired pecuniary jurisdiction in pursuance to the amendment.

8. It is no doubt true that Section 24 of the Code applies to the Court of equivalent jurisdiction or a Court subordinate thereto. However, procedures are only hand-maiden of justice and a learned Single Judge of this Court recently had an opportunity to deal with such a situation arising from similar facts in Transfer Petition No. C-9/2005 titled Aviat Chemicals Pvt. Ltd. and Anr. v. Magna Laboratories (Gujarat) Pvt. Ltd. and Anr. decided on 29.05.2005. It was held that even where the plaint has been returned under Order 7 Rule 10 of the Code, power could be still exercised by the Court under Section 24 of the Code so that the file is brought before the Court and the matter starts from the position where it was left. Such power can be exercised including under Section 151 CPC. In this behalf para 16 of the Judgment may be referred to which is as under:

16. The argument raised on behalf of the respondents that loss of jurisdiction as a result of amendment would necessarily have to be construed as no suits or proceedings are pending before the trial Court, is without any merit. I have already noticed that the provisions of Section 24 and Order 7 cover a different domain and there is no conflict between these provisions. The provisions of Section 151 would come to the aid of the Court, as no Code can possibly make provisions so as to meet every situation which may arise during the pendency of the suit. It is a situation where inherent jurisdiction of this Court would come to the aid and supply the vacuum. The inherent jurisdiction of the Court would normally be exercised in the interest of justice and for attainment of object of expeditious disposal of suits. May be it is the creation of the applicants them- selves that the Court has lost pecuniary jurisdiction and the applications under Order 7 Rule 10 and 10 (A) are pending or that the order has been passed for return of plaint but the plaint as a matter of fact has not been returned to the plaintiffs as of today, thereafter interim orders in the present petitions were passed in favor of the petitioners. In these circumstances, it is difficult for this Court to hold that there is no suit or proceedings in the suit, pending before the trial Court. The Legislature in its wisdom has worded the language of Section 24 in wide terms by empowering the High Court to transfer any suit or appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it. In other words, the meaning of the word "such or other proceedings pending in any Court" cannot be restricted or construed so as to exclude the proceedings as contemplated under Order 7 Rule 10, 10 (A) of the Act.

9. The orders passed by the District Judge thus, in my considered view, must be read as orders to place the matters back before the High Court which again acquires jurisdiction in view of the amendment made by the plaintiff to the plaint. It is at this stage, when such a date is fixed for the parties to appear before the High Court, the High Court when it proceeds with the matter can exercise powers under Section 24 of the Code and thus proceed with the matter from the stage which the matter had reached by that date. This reasoning is also supported by the fact that even the trial Court was required to continue the proceedings from the stage it had reached in the High Court by reason of transfer of the matter to the trial Court and the High Court again starts the matter from where it had left or in addition some steps have been taken by the trial Court.

10. In view of the aforesaid, I am of the considered view that it is open to the District Judge to fix a date for appearance of the parties before the High Court and at that stage the High Court could exercise powers under Section 24 of the Code to continue with the proceedings from the stage it reached by that date instead of starting the proceeding de novo.

11. Amended plaint and the Court fee has been filed. The written statement to the amended plant, if any, be filed within 30 days. The parties to file their original documents within the same period of time.

12. List before the Joint Registrar for admission/denial of documents on 13th February, 2006.

13. List before the Court for framing of issues on 31st March, 2006.