Karnataka High Court
Bhavin Tolia vs M/S Central Restaurant And Cafe on 30 June, 2025
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MFA No. 4734 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 4734 OF 2025 (CPC)
BETWEEN:
BHAVIN TOLIA
S/O SHARAD CHANDULAL TOLIA
AGED ABOUT 35 YEARS
R/A 15, HOSAKEREHALLI ROAD
BYATARAYANAPURA, MYSORE ROAD
BENGALURU-560 084
...APPELLANT
(BY SRI. SKANDA KUMAR, ADVOCATE FOR
SRI. M.D. RAGHUNATH, ADVOCATE)
AND:
1. M/S. CENTRAL RESTAURANT AND CAFE
A PARTNERSHIP CONCERN
HAVING ITS OFFICE AT NO.130
Digitally signed
by SHAKAMBARI
KHB COLONY, 17TH H MAIN
Location: High MIG, 5TH BLOCK, KORAMANGALA
Court of BENGALURU- 560 095
Karnataka
REP. BY ITS PARTNER
2. MR. MOHAMMED SHABAZ
S/O MOHAMMED ANWAR
AGED ABOUT 34 YEARS
R/A NO.26/A, 6TH CROSS
2ND MAIN, MINAJ NAGAR
KADIRENAHALLI, BENGALURU SOUTH
BENGALURU-560 078
-2-
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MFA No. 4734 of 2025
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3. MR. MOHAMMED AFSHAN
S/O MOHAMMED ALIJAN
AGED ABOUT 31 YEARS
R/A NO.13-6, J.J. RESIDENCY
4TH CROSS, JAYANAGAR
3RD BLOCK, EAST RBI EXTENSION
BYRASANDRA, BENGALURU SOUTH
BENGALURU- 560 011
...RESPONDENTS
(BY SRI. H. SUNIL KUMAR, ADVOCATE FOR C/R1 & R3)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.14.03.2025 PASSED IN
O.S.NO.25517/2024 ON THE FILE OF THE LXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU,
(CCH-73), PARTLY ALLOWING U/O.VII RULE 11 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
The appellant-plaintiff has filed this appeal being
aggrieved by the orders passed by the trial Court on
I.A.2/2024 in OS No.25517/24.
2. By virtue of the impugned order, the learned
trial Court has invoked the provisions of Order VII Rule 11
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of CPC though the interim application was filed under
Order 7 Rule 10 of CPC by the defendant to reject the
plaint and by passing the impugned order it is directed to
return the suit plaint to the plaintiff to present the same
before the notified commercial court within 30 days from
the date of the order.
3. It is the grievance of the appellant before this
Court that, the impugned order suffers from material
irregularities and as the plaintiff has filed a suit for bear
injunction, it is the Civil Court which has got the
jurisdiction to try the said suit. Counsel for appellant
submits that by filing the suit in OS No.25517/24, the
plaintiff has sought for relief of perpetual injunction
restraining the defendants from removing the fixtures,
fittings, furniture and any other movable and immovable
properties from the suit schedule property and also an
order of perpetual injunction restraining the defendants
from damaging the structures, walls, flooring, roofing,
staircases and washrooms in the suit schedule property.
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4. No doubt, Section 9 of CPC speaks with regard
to the cognizance of the suits of civil nature. This section
says that, suits of civil nature are cognizable by Civil
Court. It is an admitted fact that, already Commercial Suit
in OS No.1127/24 is filed which is pending on the file of
83rd Addl. Commercial Court (CCH.84) seeking the relief of
eviction and arrears of rent. The said suit is between the
same parties. Subject matter of the said suit and the
subject matter of this suit in OSNo.25117/2024 is one and
the same.
5. Learned counsel for defendant-respondent
submits that, when a suit is pending before the
Commercial Court, a separate suit is not maintainable
before the Civil Court seeking the relief of bare injunction.
Before filing the suit in OS No.25117/24 as the said suit
was not maintainable, defendant rightly filed an
application under Order 7 Rule 11 of CPC to reject the
plaint. He would thus submit that, though the application
was filed for rejection of the plaint, by exercising its
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discretionary power, the learned trial Judge has returned
the plaint to be presented before the Commercial Court as
other connected case is pending.
6. The learned counsel for the respondent is fair
enough to submit that, being aggrieved by the said order
of allowing the application in part, respondent has not filed
any separate appeal, thereby, respondent is satisfied with
the order of return of plaint to present the same before
the appropriate Court.
7. While deciding the said application, the learned
trial Court has relied on the provisions of Section 2 of
Commercial Courts Act, 2015 as `Commercial Dispute' so
also it has discussed with regard to the jurisdiction of the
Commercial Courts. It is the opinion of the trial Court that,
though the suit is of civil nature but, the connected suit is
pending on the file of Commercial Court, as lis between
the parties is of a commercial nature, it has passed an
order to return the plaint instead of rejecting the plaint.
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8. Further, the learned trial Court has relied upon
the judgment of this Court reported in ILR 2015 KAR
415 in the case of M/s.Vasudeva Rao & Sons and
Another vs. Smt.Pratiba Devi. In the said judgment,
this Court has held that, when the Court has no
jurisdiction to entertain the suit, Order VII Rule 10 of CPC
comes into operation for return of plaint. Even it has been
made clear in the said order that, even the pending suits
also be transferred under Section 15(2) of the Act to the
Commercial Courts where the commercial suit is instituted
nor the suit can be rejected under Order VII Rule 11(d) of
CPC and the said provision is prospective in nature.
9. Order VII Rule 10 specifically says that, the
plaint shall be returned at any stage of the suit to be
presented to the Court in which the suit should have been
instituted. Suit pending before the Commercial Court in OS
No.1127/24 is commercial in nature and there is no fetter
for the plaintiff to seek relief by filing appropriate
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application, instead, the plaintiff has filed Civil Suit before
the Civil Court.
10. As observed by the trial Court, if the plaint is
returned and presented before the proper Court, it avoids
conflicting judgments and also multiplicity of proceedings.
Therefore, in view of well-reasoned order of the trial
Court, I do not find any factual or legal error committed by
the trial Court in passing the impugned order. It is
submitted that, the interim order is in force till this date.
Accordingly, interim order is extended for a period of three
weeks from today. The plaintiff is granted three weeks
time to present the plaint before the Commercial Court
where OS No.1127/24, is pending.
No order as to costs.
Accordingly, this appeal stands disposed of.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
