Saturday, 12 December 2015

When court should return plaint instead of rejecting it?


However, in the present case, the Court has
rightly come to the conclusion to return the plaint as it
lacks   jurisdiction   due   to   the   nature   of   the   suit   and,
therefore, though he has settled the issue under Order
XIV Rule 2 of the Code of Civil Procedure by virtue of the
wide powers given to the Court, the Court has rightly
returned the suit for presentation before the cooperative
Court.  It would not be out of place to mention that in the
case of Prabhakar Bhat (Supra), the Full Bench has held
that   “The   Court   had   to   aid   rather   than   obstruct   the
plaintiff.”    Therefore,  taking  into  account  this   guiding

principle if the plaint is rejected then, it will amount to
dismissal of the suit amounting to decree and the plaintiff
will face hardship as he has to go in the appeal, he will
not get any return of the Court fees and on the other
hand, if the plaint is returned he would not be a loser as
the correct forum is made available.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.415 OF 2014
WITH
CIVIL APPLICATION NO.469 OF 2014
IN
APPEAL FROM ORDER NO.415 OF 2014
(CHANDRA PREM SHAH & OTHERS    VERSUS      K. RAHEJA UNIVERSAL PVT. LTD. & ANOTHER)
 ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­

CORAM  : MRS. MRIDULA BHATKAR, J. 

ORDER PRONOUNCED ON : 30TH JANUARY, 2015.
Citation;2015(5) MHLJ 714 Bom

By order dated 3rd  March, 2014, the learned
Judge of the City Civil Court decided preliminary issue of
jurisdiction against the plaintiffs i.e. present appellants
and ordered that the plaint be returned to the plaintiffs
for   presentation   before   appropriate   Court.  Against  the
said order, present Appeal from Order is filed.
2.  The   learned   counsel   for   the   respondent
objected the maintainability of Appeal against the said
order and contended that though by the said order plaint
is returned, it not to be construed as order passed under
Order VII Rule 10 of the Code of Civil Procedure (for

short called as, “Code”), but it is in fact an order  of
rejection of the plaint under Order VII Rule 11 of the
Code or alternatively under Order XIV Rule 2 of the Code
and hence the First Appeal lies against this order and not
an Appeal from Order.
3.  The order of return of plaint under Order VII
Rule 10 of the Code, if passed then not a First Appeal
under   Order   XLI,   but   an   Appeal   against   Order   under
Order XLIII is to be filed. Return of plaint is not a decree
though reasons in brief are required to be recorded in the
said order. 
4.  In the present matter though the Judge has
returned   the plaint, he did not mention under which
provision of the Civil Procedure Code, he has passed the
order. However, the provision empowering the Court to
return the plaint is none but  under Order VII Rule 10 of
the Code only.   In the present case a relief was sought
against   the   co­operative   society   which   was   added
subsequently and therefore, objection was raised before
the trial Court that it is an issue between a Co­operative
Society and the Member of the said society and therefore,
the Civil Court has no jurisdiction to decide the dispute
between the society and its members.  My attention was
drawn to the fact that on 19th June, 2013 the trial Court
framed the issues and thereafter on 6th September, 2013,
Notice  of  Motion  was decided with  direction  that the
parties to maintain  status quo  and decide the issue so
framed separately which is as follows :­

“Whether this Court has jurisdiction to try and decide the
suit?”
The court also observed that the issue of the jurisdiction
goes to the root of the matter and therefore, it should be
considered as preliminary issue.
5.  The learned counsel for the respondent while
objecting the maintainability of the Appeal from Order
submitted that while invoking the powers under Order
VII Rule 10, if the suit is instituted in the wrong Court,
not having either   territorial or pecuniary jurisdiction,
then it is to be returned. It was submitted that if at all
there is objection   on the ground of subject of the suit
and the Court has no jurisdiction, then the plaint cannot
be returned, but the plaint needs to be rejected under
Order VII Rule 11   Sub clause (d) of the Code.   Sub
clause (d) of Rule 11 of Order VII reads thus :­
“ 11. Rejection of plaint.­ The plaint shall be rejected in
the following cases:— 
(a) xxx  xxx xxx
(b) xxx  xxx xxx
(c) xxx  xxx xxx
(d) where the suit appears from the statement in the plaint
to be barred by any law;”

6.  The   learned   counsel   submitted   that   the
jurisdiction of the Civil Court is expressly barred under the
Maharashtra Co­operative Societies Act, and therefore, the
order cannot be said to be passed under Order VII Rule 10,
but it is the order under Order VII Rule 11, hence Appeal
is not maintainable instead First Appeal should have been
filed.   In   support   of   his   submissions,   he   relied   on   the
judgment of Division Bench of this Court in Ltd. Col. Anil
Bhat   and   Nadiya   Bhat   of   Delhi   ­vs­   Citibank   N.A.,
reported in A.I.R. 2009 Bombay 99. In the said case there
was an order of rejection of plaint when the respondent
bank filed suit for recovery of security before D.R.T. and
the objection was raised whether after Tribunal came to
the conclusion that it had no jurisdiction over the subject
matter, could it then pass consequential order of  rejection
of plaint by exercising powers of Civil Court under the Civil
Procedure code.  There is no specific power of rejection of
plaint under the provisions of   Recovery  of Debts Due to
Banks   and   Financial   Institutions   Act,   1993,   wherein
section 22 (1) of the Act, provides that the Tribunal shall
not   be   bound   by   the   procedure   laid   down   by   Civil
Procedure Code.  The Division Bench of our High Court,
while dealing with the issue has relied on the ratio laid
down by the Supreme Court in Raizada Topandas and
anr ­vs­ Gorakhram Gokalchand, reported in  (1964) 3
SCR   214.  The   Division   Bench   of   this   Court   has
reproduced   the   ratio   laid   down   in   case   of  Raizada
Topandas (supra), which reads thus :­

“The proposition which follows is that the power of
the Civil Court to direct return of the plaint is
limited to those cases where it has no territorial or
pecuniary   jurisdiction.   In   case   if   it   has   no
jurisdiction in respect of the subject matter then it
cannot direct return of the plaint. If this principle
is   accepted   on   the   facts   of   the   case   then   the
Tribunal   would   have   no   jurisdiction   to   direct
return of the plaint as it came to the conclusion
that it had no jurisdiction over the subject matter”.
7.  The learned counsel relied on the judgment in
case   of   Division   bench   of     Calcutta   High   Court,   in
Allahabad Bank ­vs­ Shank's (Steel Fab Pvt. Ltd and
ors) reported in A.I.R. 2008 Cal. 96.  In para 12 of the
said judgment it has been held that :­
“12. In our view, the Court was quite justified in
not   returning   the   plaint   in   the   facts   of   the
present case, because Order VII Rule 10 speaks
of a situation where either the territorial or the
pecuniary Jurisdiction of that particular Court
is lacking and that such suit is required to be
filed in a different court to which the Code of
Civil  Procedure  applies  having  Jurisdiction  to
entertain the dispute. This is not a case of lack
of either territorial or pecuniary jurisdiction
of   the   Trial   Court,   but   is   one   where   the
Statute   has   created   a   total   bar   of

jurisdiction of the Civil Court. The fact that
a Court can invoke the provision of Order
VII   Rule   10   only   to   a   case   of   lack   of
territorial   or   pecuniary   jurisdiction   will
plainly   appear   from   the   language   of   the
provisions contained in order VII Rules 10 A
and 10B where there is no scope of passing a
direction for appearance of the defendant
before a tribunal or other Special Authority
on representation of the plaint”. 
8.        Per   contra   the   learned   counsel   for   the
Appellant has submitted that under Order VII Rule 10, of
the Code, a plaint can be returned at any stage of the
suit, therefore, Court has rightly returned the plaint to
the plaintiffs. He relied on the order passed by  this Court
in First Appeal No.615 of 2013,  in Shamrao Kashinath
Patil ­vs­ Hari Gopal Kini (decd) and ors, dated  16th
August, 2013, wherein the Court allowed to convert the
First Appeal No.615 of 2013 into Appeal from Order. He
further relied on the order dated 9th  July, 2013 of this
Court in First Appeal No.615 of 2013 wherein similar
order was passed by this Court.
9. At the outset it is clarified that in the above
orders passed by Single Judge of this Court, allowing
conversion from First Appeal to Appeal from Order, the
Single Judge of this court has not discussed this point as

the issue was not argued and simply leave to convert was
sought and it was granted.
10. It is to be considered whether the order passed
by the trial Court which is under challenge in this appeal,
is to be treated under Order VII Rule 10, or under Order
VII  Rule   11  or  under  Order   XIV   Rule  2  of   the   code.
Admittedly when the order of rejection of the plaint is
passed by the Court, it is neither for want of pecuniary
nor territorial jurisdiction, but it was held that the Civil
Court cannot entertain the said subject in the plaint, but
it is to be entertained by the other forum. Rule 10 of
Order VII, states that at any stage of the suit plaint can be
returned to be presented to the Court where  the  suit
should have been instituted. The words, “at any stage”
undoubtedly   by   plain   reading   convey   that   it   can   be
returned, even at the stage of argument.
11. I could lay hand over the judgment of the Full
Bench of the Bombay High Court in Prabhakar Bhat ­vsVishwambhar
Pandit,  reported in  I.L.R. 1884 Vol. III,
p.313,. The Full Bench in the said case had dealt with the
issue of return of the plaint under Section 57 of the old
Code (1882) and rejection of the plaint under Section 53
of the old Code of 1882. The  Sections are more or less
identical to Rule 10 and Rule 11 of Order VII of the Civil
Procedure Code (Amended) in 2002.  The Full Bench has
taken a view that,
“It is long established practice of this Court as
to the return of the plaints  was not opposed

to   the  earlier  law  and  that  it  has   at  least
indirectly been confirmed by the present law.
High Courts from time to time their inception
has   been   to   return   or   direct   return   of   the
plaint in ordinary  cases when the courts of
trial either original suit or at appeal”. 
12.  After   the   judgment   of   Full   Bench   in
Prabhakar Bhat (supra), the words “at any stage” were
inserted by way of amendment in the section of return of
plaint.   Earlier   in   the   corresponding   provision   under
Section   57   or   52   (old)   the   said   words   were   absent.
However, Full Bench gave elastic meaning to at what
stage the plaint can be returned holding that it can be
returned at any stage in absence of prohibition of law to
do so. The said ratio by the Full Bench of this Court in
Prabhakar Bhat (supra) though in respect of old Code
of 1882  still holds the field.
13.   Division bench of our High Court and Calcutta
High Court,  have taken consistent views that plaint can
be   returned   if   Court   has   no   pecuniary   or   territorial
jurisdiction   and   if   there   is   bar   under   the   law   due   to
subject matter involved in the plaint, then it is to be
rejected.   The power given under Order VII rule 10 and
Order VII rule 11 are mutually exclusive. First Appeal is
prescribed under Order XLI against the original decree
and not against the order. Sub section (2) Section 2  of
the Code defines decree as under:­

“(2) "decree" means 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 [3]* * * section 144, but shall not
include­
(a) any  adjudication  from  which  an appeal
lies as an appeal from an order, or 
(b) any order of dismissal for default.”
  
14. Thus,   when   a   suit   is   decreed,   it   is   finally
adjudicated. However, by virtue of deeming provision in
the  definition  of  Section  2(2), rejection  of  plaint  is a
decree and therefore, first Appeal lies against the order if
the order of rejection of plaint is passed.
15. Clause (d) of Rule 11 of Order VII, lays down
a specific reason of rejection of plaint i.e. “ if it is barred
by any law”. The words, “at any stage” unlike Rule 10 of
Order VII, are not mentioned.  The suit can be rejected at
the initial stage on its presentation, so also if at all the
preliminary issue is raised by defendants or even suomotu
  by   the   Court.   Civil   Procedure   Code   unfolds   the

procedure step by step and thus, there is sequence which
is expected to be followed by the parties and the Court.
The Courts are bound by the discipline of the Code which
is to be observed while instituting suit and conducting
trial.   The main leg of arguments of the learned counsel
for the respondents is that once the Court has passed an
interim  stage  and has settled the   issues  and  an   issue
under Order XIV Rule 2 on the point of jurisdiction is
settled and is taken up as a first issue to be decided then,
the finding given under Order XIV Rule 2 is necessarily is
a final adjudication and then the suit is to be dismissed
for want of jurisdiction. The Court has to dismiss it and
the Court cannot return the suit. These submissions are
not acceptable. Even at the appellate stage, under Rule
10B,   the   Court   has   power   to   transfer   the   suit   to   the
proper   Court   as   appeal   is   a   continuation   of   the   suit.
Framing of issues does not curtail power of the Court
either to return or to reject the plaint.  If on the point of
jurisdiction of the Court, the said point is not decided
earlier at interim stage, then at the time of settling the
issues, the law provides opportunity to the parties to raise
the issue of jurisdiction and also empowers the Court to
decide that issue. Therefore, plaint can be returned not
only at the initial stage, but the words 'at any stage' are
flexible and to be given its full and effective meaning. It
is to be remembered no artificial compartments in the
powers of the Court in return of suit can be made as the
procedure is a handmade of law.

16. In the case of Lt.Col. Anil Bhat (Supra), the
proceedings   filed   before   the   Debts   Recovery   Tribunal
were without jurisdiction and, therefore, it directed to
return the plaint for presentation to the proper Court.
Hence, the said order of Debts Recovery Tribunal was
challenged before the Division Bench.  Section 22 of the
Recovery   of   Debts   Due   to   Banks   and   Financial
Institutions Act, 1993 lays down the procedural powers
of the Tribunal and it says that it is not bound by the
procedure laid down by the Code of Civil Procedure.  It
was questioned that when the Court has no jurisdiction
over the   subject matter, then it has no jurisdiction to
pass further orders.
17.  In the said case observation of the Supreme
Court   in  Raizada   Topandas   (Supra)  were   referred,
wherein the Supreme Court dealt with the interpretation
of Section 28 of the Bombay Rents Hotel and Lodging
House Rates Control Act, 1947.  The suit was filed before
the City Civil Court.   The objection was raised and the
City Civil Court held in favour of the defendant.   The
High Court set aside the order and held that it is the
plaintiff who can choose the forum and on the basis of
his   statements   of   facts,   the   jurisdiction   is   to   be
determined initially and it maintained that the City Civil
Court has jurisdiction to entertain the said suit as the
landlord and the tenant relationship was not claimed.
The   order   of   the   High   Court   was   maintained   by   the

Supreme Court.  The Supreme Court held that the power
of the City Civil Court to direct the return of the plaint is
limited   to   those   cases   where   it   has   no   territorial   or
pecuniary jurisdiction.  In case, if it has no jurisdiction in
respect of the subject matter, then it cannot direct the
return of the plaint.
Apparently, this finding may look supportive
to   the   submissions   of   the   learned   counsel   for   the
respondent.  but, if at all this ratio is understood on the
background of plain reading of Rule 10, then it clarifies
the legal position.   In Raizada Topandas (Supra), the
issue   was   totally   different   related   to   scope   and
interpretation of Section 28 of the Bombay Rent Act and
the observations were made in that context.   The ratio
was laid down mainly in respect of Section 28 of the
Bombay Rent Act.   
18. Order   VII   Rule   10   of   the   Code   of   Civil
Procedure reads as follows:
Order VII Rule 10 : Return of plaint.­­ (1) 99[Subject
to the provision 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.
1 [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 sub­rule.]

(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 returning it.
2
[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 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) xxx   xxx xxx
(a) xxx   xxx xxx
(b) xxx   xxx xxx
(c) xxx   xxx xxx
(3) xxx   xxx xxx
(a) xxx   xxx xxx
(b) xxx   xxx xxx
(4) xxx   xxx xxx
(a) xxx   xxx xxx 
(b) xxx   xxx xxx
(5) xxx   xxx xxx
10­B. Power of appellate Court to transfer suit to the
proper Court.­­­
(1) Where, …..........................
(2) The ….............................

19. Rule 10 is in three parts, which is 10, 10A and
10B.   Rule 10 consists of sub­rule 1 and 2.   This rule
empowers the Court to return the suit to the plaintiff for
presentation in the Court, where the suit should have
been instituted.   At the time of returning a plaint, it is
necessary   for   the   Judge   to   endorse   the   date   for   its
presentation   and   the   date   of   return   and   also   brief
statement of reasons for the return.  Rule 10A empowers
the Court to return the suit after the defendant appears.
Then the Court is required to intimate the decision to the
plaintiff.  A procedure is laid down under rule 10A how
the order of returning the plaint is to be passed by the
Court   by   mentioning   the   Court   where   it   is   to   be
presented then also fix a date for the appearance of the
parties in the said Court.  Rule 10A is amended in 1976
with   necessity   of     obviate   the   summonses   to   the
defendants. Rule 10B states that in appeal, the Court has
power to transfer the suit to the proper Court.
20. Thus, Rule 10 contemplates that if a suit is
wrongly filed in the Court then, the Court should return
it to the Court where it should have been instituted. 
This rule is applicable and can be invoked only
when there is another Court which has jurisdiction to try
the suit.  If no such forum is available, then this Rule is
not applicable.  The jurisdiction of the Court is classified
in following three categories;
I) Territorial;
II) Pecuniary; and

III) Jurisdiction with reference to the nature of the
suit.
These   three   factors   have   bearing   over   the   inherent
jurisdiction of the Court.  If suit is filed before a wrong
forum, then it disables the said Court to go ahead with
the matter as it lacks inherent jurisdiction.   Order VII
Rule 10 of the Code of Civil Procedure does not place any
bar in respect of not returning the plaint if there is no
jurisdiction with reference to the nature of the suit. It
simply states that the suit be returned for presentation to
the other Court where it should be instituted.  
21.   Under   Section   9   of   the   Code   of   Civil
Procedure, Court has power to try the civil disputes of the
civil nature unless barred either expressly or impliedly.
Thus, if at all other forum is created to entertain and try
any  civil  dispute, then  the  suit  is to be  tried  by that
special forum.  It can be illustrated by taking example of
Motor   Vehicle   Act   where   a   Tribunal   is   established   to
decide   the   issue   of   compensation   and   other   matters
under   the   Act.     Same   is   the   case   of   a   Family   Court.
Wherever there is a creation of the Family Court and such
Courts are available then the petition is to be filed before
the said forum and it is not to be entertained by the civil
Court; which otherwise in the absence of establishment
of Family Courts is triable by the Civil Court and thus,
Order VII contemplates such situation and empowers the
Court to return the suit for presentation before the Court
where it should have been instituted.   This depends on

the   nature   of   the   suit.     Thus,   the   most   important
ingredient of this Rule is availability of another forum for
presentation of the suit.   This is a situation where the
plaintiff  has erred in  presenting  the  suit in  the  Court
instead he should have chosen the other forum which is a
correct one.  Thus, within the purport of Order VII Rule
10 of the Code of Civil Procedure, if Court comes across
such situation, then the Court is justified in returning the
suit   under   Order   VII   Rule   10   of   the   Code   of   Civil
Procedure at any time which also includes a stage of
‘after settlement of the issues’.  A Court may dismiss it for
want of jurisdiction or return it for want of jurisdiction.
22. I am benefited by the judgment of the Hon'ble
Single Judge of this Court who has dealt with similar
issue in Roda Jal Mehta & Others  Versus  Homi Framrose
Mehta & Others, reported in AIR 1989 Bombay 359.  In
the said matter, the Court was dealing with its power to
receive the plaint under Clause 12 of the Letters Patent.
In the said matter, necessary leave, as the land is situated
out   of   the   territorial   jurisdiction   of   Mumbai,   was   not
obtained and, therefore, the learned Single Judge relied
on   the   judgment   of   the   Full   Bench   in   the   case   of
Prabhakar  (Supra) read with the judgment of Division
Bench in the case of Devidutt Ram Niranjan Das  Versus
Shriram Narayan Das, reported in 1934 BLR 236 = AIR
1932 Bombay 291.   The Division Bench while dealing
with   the   provisions   of   leave   under   Clause   12   of   the
Letters Patent has observed as follows:

“As the words 'empower to receive' seem to me
to be important and the meaning is that the
Court   on   the   ordinary   original   civil
jurisdiction has no jurisdiction even to receive
a plaint where a part of the cause of action
only shall have arisen within the local limits of
the jurisdiction unless leave of the Court shall
have obtained.”
The learned Single Judge in Roda Jal Mehta
(supra) held that :
“If I am not empowered to receive a
plaint, I cannot deal with such a plaint.  If I
am    not empowered to receive, I  cannot keep
it   in   the   records   of   this   Court.     I   must
necessarily return the plaint to the person who
has   tendered   such   a   plaint.     I   cannot
understand how on this basis I can dismiss the
plaint when I am not empowered to receive the
same.”
23. The   ratio   laid   down   by   the   Hon'ble   Single
Judge   in  Roda   Jal   Mehta  (Supra)   enlightens   us   by
distinguishing a stage of return of plaint and a stage of
rejection of the plaint.  A suit cannot be rejected unless it
has jurisdiction to entertain the suit.  For lack of inherent
jurisdiction, it is to be returned.   Thus, in other words,

the Court should be empowered to receive the plaint and
if at all the Court is not empowered to receive the plaint,
then the Court shall return the plaint under Order VII
Rule   10   of   the   Code   of   Civil   Procedure.     In   case   of
Allahabad Bank ­vs­ Shank’s  (Supra) or in the case of
Lt.Col.Anil Bhat and Nadiya Bhat (Supra), the example
of not having jurisdiction under Order VII Rule 10 of the
Code   of   Civil   Procedure   are   discussed,   which   are
illustrative.  Under Order VII Rule 11 (d) of the Code of
Civil Procedure, when the plaint is rejected, if barred by
any   law,   the   Court   has   to   take   a   further   step   after
receiving the plaint and then to apply mind whether it is
barred by any law or not.  Such bar should be provided
by law for example, “bar due to Res­Judicata”, “bar due to
Limitation Act” and there may be bar under Section 80 or
under Order II Rule 2 of the Code of Civil Procedure etc.
Under such circumstances a suit is to be rejected.
24. It   can   be   argued   that   while   returning   the
plaint the Court has to follow the procedure laid down
under Order VII Rule 10 and 10(2) of the Code. Under
Rule 10(2), the Court after putting the endorsement and
giving brief statement of reasons may return it. However,
as per Rule 10A (which was inserted in the Code by way
of amendment in the year 1976),  has power to fix a date
of appearance in the Court where the plaint is to be filed
after its return. So it can be argued that how the court
having no jurisdiction over the other court can fix a date
of appearance in the Court where the plaint is to be filed

after   its   return.   Rule   10A   is   applicable   when   the
defendant   appears   in   the   suit   and   the   Court   forms
opinion that the plaint is to be returned and it intimates
the plaintiff accordingly. Thereafter   the plaintiff moves
an application and informs that the Court may fix a date
for appearance of the parties in the Court and thereafter
accordingly   Court   fixes   a   date   for   appearance   of   the
parties in the Court in which the plaint is proposed to be
presented. The object of this provision as stated earlier is
not to interfere in the jurisdiction of the other court, but
it   is   with   a   view   to   curtail   unnecessary   exercise   of
issuance   of   summons   to   the   defendant   when   the
defendant   is   before   the   Court.   Thus,   the   provision
obviates summons facilitating both the parties to appear
before   the   other   Court.   Thus,   this   provision   does   not
create any anomaly or clash in the jurisdiction of two
Courts.  
25. However, in the present case, the Court has
rightly come to the conclusion to return the plaint as it
lacks   jurisdiction   due   to   the   nature   of   the   suit   and,
therefore, though he has settled the issue under Order
XIV Rule 2 of the Code of Civil Procedure by virtue of the
wide powers given to the Court, the Court has rightly
returned the suit for presentation before the cooperative
Court.  It would not be out of place to mention that in the
case of Prabhakar Bhat (Supra), the Full Bench has held
that   “The   Court   had   to   aid   rather   than   obstruct   the
plaintiff.”    Therefore,  taking  into  account  this   guiding

principle if the plaint is rejected then, it will amount to
dismissal of the suit amounting to decree and the plaintiff
will face hardship as he has to go in the appeal, he will
not get any return of the Court fees and on the other
hand, if the plaint is returned he would not be a loser as
the correct forum is made available.
26. Thus, I hold that the order of return of the
plaint passed by the learned trial Judge is correct and
legal and, hence, the present appeal against order under
Order   XLIII   of   the   Code   of   Civil   Procedure   is
maintainable.
              (MRS. MRIDULA BHATKAR, J.)

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