Wednesday, 24 July 2019

Whether court can return plaint on ground of availability of alternative dispute redressal mechanism?

The learned Judge wrongly read the provisions of Order 7 Rule 10
of the Code of Civil Procedure (CPC), which is reproduced as under:
“Order 7 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.
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 —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.

The “Court” as mentioned is the basic requirement. The words

“Court” and “jurisdiction” are not specifically defined in CPC. However, the
concepts of “Court” and “jurisdiction” are read and referred in most of the part
of the CPC. It is well settled also. The proper forum as read and referred and
included within the term of Court by the learned Judge, in view of plain reading
of above, itself is wrong. The effect of such clauses where parties agree to settle

and/or decide their disputes, arising out of the terms and conditions of the

contract through a private forum is always an alternative mode/mechanism. Such
dispute redressal system other than the Court, has various facets. The same are
elaborated in Section 89 of CPC. The concept therefore itself is very clear that
the proceedings in the Court, are different that the proceedings initiated and/or
referred before the dispute resolution mechanism and or the forum like
arbitration, mediation, conciliation and lokadalat. The clause with such
mechanism as adopted and in spite of notice, the disputes could not be settled,
and there was a delay, and the contractor wanted an interim order and injunction
from the Court, the alleged forum, as recorded in the clause, in no way
competent to deal with the situation and/or grant such declarative/interim/reliefs.
The option so agreed, in no way debars the parties to initiate and/or to file a civil
suit in the competent court for the reliefs including damages for the work done
by them. There is nothing even pointed out and/or referred in the terms and
conditions and/or in the order that such suit and/or initiation of such proceedings

is barred. The forum so provided, cannot be compared with the power of civil

court jurisdiction to decide and/or grant relief as prayed in such suits. The
“forum” is not the “Court” as contemplated under CPC. The judgment so cited,
in no way dealt with the aspect in question specifically to return the plaint for
presentation before the alleged proper forum as contemplated under Order 7 Rule
10 of CPC. The jurisdiction of Court is not restricted by such clauses. The

jurisdiction of civil court is not restricted by such clauses.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 449 OF 2013

Shri Pravin Pandurang Patil Vs. Executive Engineer,
Pradhan Mantri Gram Sadak Yojana,
Zilla Parishad Premises, Sangli.



CORAM : ANOOP V. MOHTA, J.
DATE : 19 NOVEMBER, 2013.

Citation; 2014 (1) MH L J 373 Bombay,2014(2) ALLMR 634
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