Himachal Pradesh High Court
Tejinder Singh vs Beverly Singh on 25 October, 2024
Tejinder Singh vs Beverly Singh
Civil Suit No. 64 of 2023
25.10.2024 Present: Mr. Rakeshwar Lall Sood, Senior
Advocate with Mr. Arjun Lall,
Advocate, for the applicant/ plaintiff.
Mr. Neeraj Gupta, Senior
Advocate with Mr. Vedant Ranta,
Advocate, for the non-applicant
/defendant.
OMP No. 842 of 2024
This order will dispose of an
application filed under Order 7 Rule 10-A of CPC
read with Section 151 of CPC for seeking direction
for fixing a specific date for the return of the plaint
and subsequent presentation before learned
Principal Judge, Family Court, Shimla in
consequence of the order dated 13.09.2024 passed
by this Court. It has been asserted that this Court
held on 13.09.2024 that the present suit would fall
within the purview of Section 7(c) of the Family
Courts Act and the Family Court will have
exclusive jurisdiction to hear and entertain the
present suit. Hence, it was ordered that the plaint
be returned to the applicant/plaintiff for its
presentation before the appropriate Family Court.
The applicant/plaintiff is required to specify the
date on which he proposes to present the plaint
after its return as per Order 7 Rule 10-A of CPC.
The applicant/plaintiff is also required to pray to
the Court to fix a date for the appearance of the
parties before the learned Principal Judge, Family
Court at Shimla. Hence, the applicant/plaintiff
requests that the notice of date be issued to the
non-applicant/defendant. The applicant/plaintiff
shall present the plaint before the learned
Principal Judge, Family Court at Shimla on 3rd day
after the date on which the Registry of this Court is
directed to return the plaint. Hence, a prayer to
return the plaint alongwith the documents and fix
a date on the 3rd day of the return of the plaint as
the date on which the plaint would be presented
before the learned Principal Judge.
2. The application is opposed by filing a
reply taking preliminary objections regarding lack
of maintainability and the applicant being
estopped from filing the application by his act and
conduct. It was asserted that the Court has
ordered the return of the plaint to the
applicant/plaintiff for its presentation before the
appropriate Family Court. The Court had also
allowed the prayer made on behalf of the
applicant/plaintiff to refund the Court fee. The
Court has become functus officio and the
application is not maintainable. The option was
available before the order of return of the plaint
was passed by the Court. The applicant/plaintiff
has lost his chance to make such a prayer.
The Registrar of the Court is only to return the
original plaint in terms of the order passed by the
Court. The endorsement is to be made by the
Registrar and not by the Court.It is only a
ministerial act. The Court has passed the order
required to be passed by it. Therefore, it was
prayed that the application be dismissed.
3. I have heard Mr.Rakeshwar Lall Sood,
learned Senior Advocate assisted by Mr Arjun Lall,
learned counsel for the applicant/plaintiff and Mr
Neeraj Gupta, learned Senior Advocate assisted by
Mr Vendant Ranta, learned counsel for the non-
applicant/defendant.
4. Mr Rakeshwar Lall Sood, learned Senior
Counsel for the applicant/plaintiff submitted that
the Court had intimated its intention to return the
plaint to the parties. The applicant/plaintiff is
within his right to file the present application
seeking to fix the date before the Court where the
plaint is to be presented in terms of the order of
the Court. The applicant/plaintiff shall present
the plaint on the third day on which the plaint is
returned to the applicant/plaintiff. Hence, the
notice of the date be issued to the parties.
5 Mr Neeraj Gupta, learned Senior Advocate
for the non-applicant/defendant submitted that
the application is not maintainable.It could have
been filed before the order of the return of the
plaint was passed by the Court. The Court has
passed the order and has become functus officio.
The present application does not lie. Therefore, he
prayed that the present application be dismissed.
6. I have given considerable thought to the
submissions made at the bar and have gone
through the records carefully.
7. Order 7 Rule 10-A of the CPC reads as
under: -
10-A. 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) 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
(c) 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 the
defendant notice of such date for
appearance.
(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 was returned.
(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.
8. It is apparent from the bare perusal of the
provision that the Court has to form an opinion
that the plaint is to be returned and before
returning the plaint, it has to intimate its decision
to the applicant/plaintiff. Where an intimation
is given to the applicant/plaintiff, the
applicant/plaintiff can file an application to the
Court specifying the Court where he proposes to
present the plaint, fix a date for appearance and
issue the notice of the date, so fixed to him and the
defendant.
9. It was submitted that the order passed by
this Court on 13.09.2024 was an order of the return
of the plaint and the application under Order 7
Rule 10-A of CPC is not maintainable. This
submission is not acceptable. There is a force in
the submission of Mr. Rakeshwar Lall Sood,
learned Senior Advocate for the applicant/plaintiff
that the order dated 13.09.2024 is not an order
returning the plaint but an intimation of the Court
to return the plaint. The Court has to make
an endorsement as per Order 7 Rule 10(2) of CPC
and mention the date of presentation of the plaint,
the name of the party presenting it, a brief
statement of reasons for returning it and return it
to the applicant/plaintiff to enable him to file it
before the Court having jurisdiction in the matter.
Thus, the order Order 7 Rule 10-A of CPC provides
that the Court has to first form an opinion that the
plaint should be returned and thereafter intimate
the decision to the applicant/plaintiff.
10. It was submitted by Mr. Neeraj Gupta,
learned Senior Advocate, for the non-
applicant/defendant that intimation has to
precede the order passed by the Court. This
submission does not explain how the intimation is
to be communicated to the applicant/plaintiff.
The Court intimates its intention by writing the
order and the Code of Civil Procedure does not
contemplate any oral intimation to the
applicant/plaintiff. Thus, the word intimation has
to be construed as an actual order signed by the
Court giving the reason in support of the opinion
as to why the Court does not have the jurisdiction
and informing the parties it had formed such an
opinion.
11. It was submitted that the Court has
become functus officio after passing the order. This
submission is not acceptable. Order 7 Rule 10-A of
CPC provides that the Court has to intimate the
applicant/plaintiff before actually returning the
plaint and thereafter return the plaint to the
applicant/plaintiff after making a requisite
endorsement.
12. It was held by the Bombay High Court in
Latadevi v. Ramnath, 1987 SCC OnLine Bom 2: AIR
1987 Bom 364: (1987) 2 Bom CR 268 that the
declaration made by the Court that it has no
jurisdiction will not terminate the proceedings but
the proceedings will be terminated when the
plaint is actually handed over to the plaintiff with
the required endorsement. It was observed:
"12. Mr Bobde urged before me that S. 14 of
the Limitation Act enables the Court to
exclude only that much time commencing
from the institution of the suit till the date of
termination of the proceedings before the
wrong Court. He urged that the time till 6-2-
1984 could be legitimately excluded under S.
14. He was even prepared to say that the time
till 12-3-1984 could be legitimately, excluded
because the parties were called upon to
appear on that day. His main grudge was that
the time commencing from 12-3-1984
onwards till 18-4-1984 was to be accounted
for, positively. It is difficult to accept this
argument in view of the discussion in the
preceding paragraph. Because the proceedings
cannot be said to have terminated as soon as the
High Court passed the order on 6-2-1984. On
that day there was merely a declaration, that the
Court of Small Causes at Nagpur has (no?)
jurisdiction to entertain and decide the suit.
However, for the return of the plaint, the
procedure necessary under O. 7, R. 10-B was to
be complied with and that procedure being
mandatory and the plaintiff having no voice in
that procedure, these procedures could not be
completed except on taking some steps by the
Court itself. From that point of view, the steps
which the Court was required to take, were
beyond the control of the plaintiff. It was only the
Court which could do these things and the
plaintiff except for asking the Court to take
the case on Board could not legitimately do
anything in the matter. Without the completion
of the mandatory procedure, proceedings could
not be held to have been legitimately terminated
in the real sense of the term. This itself would
explain the whole delay. There is no question
of delay. Section 14 of the Limitation Act does
not speak of delay, but it speaks only
exclusion of time required by the proceedings
before the trial Court. The proceedings must be
held to have been terminated effectively only
when the plaint was ready for handing over to
the plaintiff for presentation to the proper Court.
It was so on 18-4-1984 and admittedly
enough it was presented before the proper
court on the very same day without wasting
any further time. (emphasis supplied)
13. It was held by the Hon'ble Supreme Court
in Ram Ujarey v. Union of India, (1999) 1 SCC 685:
1999 SCC (L&S) 374 that the limitation does not
start running from the date of the order but from
the date of actual handing over of the plaint. It was
observed:
"21. ...The suit, admittedly, was filed within
time. It is another matter that it was filed in a
court which had no jurisdiction and,
therefore, the Tribunal while allowing the
appeal filed against the decree passed by the
trial court, directed the plaint to be returned
to the appellant for presentation before the
appropriate Bench of the Tribunal. Some
delay had occurred in the refiling of the plaint
before the Tribunal and as pointed out by the
Tribunal itself, the delay was only of one-
and-a-half months, although at one place the
Tribunal observed that there was a delay of
about eight months. The period of eight
months has been calculated by the Tribunal
from the date on which an order was passed at
Allahabad for the return of the plaint. The
limitation would not run from the date of the
order but would run from the date on which the
plaint was returned and made available to the
appellant if the appellant was not at fault. Two
dates have been mentioned on which the
plaint was returned; in the application for
condonation of delay, the date mentioned is
20-8-1988, but in the affidavit filed in
support of that application, the date of receipt
of the plaint is mentioned as 20-10-1988.
Since the OA was filed before the Tribunal on
12-12-1988, there was a delay of either three-
and-a-half months or one-and-a-half
months, but not a delay of eight months as
observed by the Tribunal. The Tribunal had
itself observed in an earlier part of its
judgment that there was a delay of one-and-
a-half months only." (emphasis supplied)
14. Thus, the legislature has contemplated
two stages: first the intimation to the plaintiff and
thereafter the actual return of the plaint. The
plaintiff will not be entitled to approach the Court
once the plaint is actually handed over to him for
its presentation before the appropriate Court but
as long as the plaint is not returned after making
the endorsement, the Court continues to be seized
of the matter and can pass the order contemplated
the Order 7 Rule 10-A (2) of the CPC. Hence, the
submission that the Court has become functus
officio and cannot pass any order on the
application is not acceptable.
15. It was submitted that the Court has
ordered the refund of the Court fee and the Court
cannot pass any order. The Court had ordered the
refund of the Court fee as per law and only the
permissible Court fee would be refunded. The
order of the refund of the Court fee will not mean
that the Court cannot pass an order under Order 7
Rule 10-A of CPC because the statute does not
provide so.
16. It was submitted that the plaint is to be
signed by the Registrar which is a ministerial
function; therefore, the application is not
maintainable. This submission is not acceptable.
The legislature consciously said that the Judge
shall make endorsement, which means that
endorsement has to be made by the Judge or on his
behalf. Thus, any endorsement made by the
Registrar will be on behalf of the Judge and the
submission that only a ministerial act is to be done
by the Registry of the Court and this Court does
not have the jurisdiction is not acceptable.
17. In case the decision on the question of
jurisdiction is taken as intimation it will avoid
many difficulties. The Court will have the freedom
to arrive at a decision that it thinks best in the
given situation. The rights of the applicant/
plaintiff will be protected because he can apply
before the plaint is handed over to him and
the non-applicant/defendant will also not suffer
as the proceedings will be taken in his presence.
Thus, it is held that the order dated 13.09.2024
holding that the Court had no jurisdiction
amounted to intimation and the
applicant/plaintiff had jurisdiction to approach
the Court. The Court has already ordered that the
Civil Court does not have the jurisdiction and only
the learned Family Court have the jurisdiction.
Therefore, the plaint is to be presented before
the learned Family Court. Hence, the application
is allowed and it is ordered that the plaint shall be
handed over to the applicant/plaintiff on
11.11.2024 and will be presented before the learned
Principal Judge, Family Court at Shimla on
14.11.2024.
18. Both the parties through their
respective counsel are directed to appear before
the Court of learned Family Court at Shimla on
14.11.2024.
19. The present application stands
disposed of.
Rakesh Kainthla)
Judge
25October, 2024
(Ravinder)
