Bombay HC: A dispute arising out of a singular transaction of assignment of debt cannot be considered a 'commercial dispute'

In the facts of this case, the dispute relating to the transaction of assignment of debt by the Plaintiff No. 1 in favour of the Defendant No.1 not being a dispute arising out of an ordinary transaction of a merchant, financier or a trader, and obviously not a banker nor a dispute arising out of any of the items mentioned in Section 2(1)(c) (ii) to (xiii), the dispute relating to the breach of the agreement dated 7th July, 2023 would not be a commercial dispute arising out of ordinary transactions of merchants, bankers, financiers and traders as defined under Section 2(1)(c)(i) of the said Act nor any other items at (ii) to (xiii) even if the purpose be otherwise commercial and therefore, would not fall within the jurisdiction of the Commercial Division of this Court. If the dispute as held is not commercial dispute, even if the dispute is above the specified value that would be of no consequence. Also the reliance upon the other sections of the said Act including Sections 4, 7 and 15 as well as the preamble of the said Act would in my view not assist the case of Mr. Narvekar’s clients.{Para 27}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 6341 OF 2024

IN

SUMMARY SUIT NO. 18 OF 2023

VARANIUM CLOUD LIMITED …APPLICANT

IN THE MATTER BETWEEN

ROLTA PRIVATE LIMITED AND ANR. …PLAINTIFFS

VS

VARANIUM CLOUD LIMITED AND ANR. …DEFENDANTS

CORAM :ABHAY AHUJA, J.

PRONOUNCED ON: 11 TH NOVEMBER, 2024

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Tripura HC: Formal defect’ for the purpose of withdrawal of suit must be given a liberal interpretation meaning various kinds of defects not affecting merits of plea

What is a “formal defect” has been explained by the Apex Court in a recent decision rendered in case of V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar reported in (2017) 5 SCC 63 wherein it was held as under:

“10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the

“formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.

 “Formal defect” has been described as a defect of form prescribed by the Rules of procedure such as, want of notice under Section80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. As held hereinabove by the Apex Court “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. Evidently, lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a). Since the trial had not even commenced and the lack of pecuniary jurisdiction was pointed out to the learned trial Court at the very outset, the plaintiff had an option either to seek return of the plaint to be presented before the concerned court or to seek withdrawal of the suit with a liberty to file a fresh suit after curing the defect.

{Para 8}

HIGH COURT OF TRIPURA

_A_G_A_R_T_A_L_A_

CRP No.59 of 2023

Sri Rathindra Chandra Das Vs Sri Barun Chandra Das and another

Coram: HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

Dated: 13.02.2024

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Should the court assume the averments made in the plaint as correct while deciding the application for the return of the plaint?

 The Division Bench of this Court in the case of Allied Blenders & Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd.&Anr.: 2017 SCC OnLine Del 7225,held as under:

“10. If an application under Order VII Rule 10 of the

Code is to be decided on the assumption that the averments

made in the plaint are correct, then, it will have to be

assumed that there is a reasonable apprehension that the

defendants would sell their product in Delhi bearing the

impugned mark and label. There is no dispute with the

proposition that a quia timet action is based upon an

apprehended use and is preventive in nature intended to

prevent an apprehended wrong and an anticipated mischief.

If we were, for the time being, to ignore the fact that the

respondent No. 1/defendant No. 1 was already selling the

impugned product under the impugned mark and label in

Andhra Pradesh, then the mere fact that the plaint contained

an averment that there was credible and imminent

apprehension that the infringing product would be launched

by the defendants within the territorial jurisdiction of this

court, would by itself constitute a cause of action. If this be

the case, can it be said that just because the defendants were

already selling the product in Andhra Pradesh it would take

away part of the cause of action which was preventive of a

future conduct on the part of the defendants? We think not.

11. We are of the view that the learned single Judge fell

in error when he took the view that although the

appellant/plaintiff had averred that it had an apprehension

that the defendants would sell their product in Delhi, the

said apprehension was not substantiated by any material

which would indicate a reasonable ground for the plaintiff

to apprehend the same. We may point out that substantiation

of an averment in a plaint by other material would come

later. At the stage of filing of the plaint, it is only the

averment that has to be made with regard to a material fact.

Substantiation is a part of evidence.”

22. It was categorically held that the stage for substantiation of

an averment in the plaint by other material would come later and at the stage of filing of the plaint, it is only the averment that has to be made with regard to the material fact. Substantiation is part of evidence. In our opinion, the learned Commercial Court fell in error in returning the plaint by exercising power under Order VII Rule 10, CPC.

23. Clearly, if the averments in the plaint are accepted to be

true, the learned Commercial Court would definitely have the

territorial jurisdiction to entertain the suit. As held by the Apex

Court and reiterated by this Court in various judgments as

referred above, we have no hesitation to hold that the application

under Order VII Rule 10, CPC, is to be considered on demurrer;

that is, the averments made in the plaint are to be assumed as

correct.

IN THE HIGH COURT OF DELHI AT NEW DELHI

  FAO (COMM) 139/2022 and CM APPL. 41704/2022

PUMA SE VS  D.K. ARORA 

CORAM

HON’BLE MR. JUSTICE VIBHU BAKHRU

HON’BLE MR. JUSTICE AMIT MAHAJAN

Author: AMIT MAHAJAN, J

Judgment delivered on : 29.11.2022

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Whether the court should record findings on all issues even if it is returning plaint after recording of evidence of all the parties?

 While answering the issue in question, one has to bear in mind the object with which that Rule 2(1) has been substituted by the Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. It is substituted to provide that, although a suit can be disposed of on preliminary issue, the court shall ordinarily pronounce judgment on all issues. This is obviously in order to avoid piecemeal trial and protraction of litigation. It may happen that in a given case issue with regard to jurisdiction of the court or bar to the suit created by any law for the time being in force may not be tried as a preliminary issue and allowed to be tried alongwith other issues, and after parties adducing evidence fully, at the final stage the trial court may come to the conclusion that it lacks jurisdiction and as such may dismiss the suit on that ground or direct to return the plaint to the plaintiff for presentation to the proper court. In such a case, if the said order is challenged in the appellate court, and the appellate court comes to the conclusion that the finding recorded by the trial judge with regard to jurisdiction or tenability of the suit is not correct then the appellate court would necessarily be required to remand the matter if no findings on other issues are recorded by the trial judge. Naturally, then in that event there would be protraction of litigation. So, considering this aspect and to avoid to undergo gamut of litigation again, amendment has been introduced, whereby, it is made clear that notwithstanding that a case may be disposed of on a preliminary issue the court shall subject to the provisions of sub-rule 2 pronounce judgment on all issues.  {Para 11}

12. Incidently, it must be noted that recording of findings on all issues while deciding the matter finally after the time the parties have adduced evidence is not dependent on the nature of the final order that is to be passed, means whether finally the suit is to be dismissed on the ground of jurisdiction or whether plaint is to be returned. Whatever be the order, when the same is to be passed finally after the parties have led evidence on all issues, then it is necessary for the Court to decide other issues on merits even if the Court comes to the conclusion that it lacks jurisdiction.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.B. MHASE AND S.R. SATHE, JJ.

Jagdish Hari Thatte & Ors.Vs.The Municipal Corporation Of Gr. Bombay & Anr.

Appeal From Order No.1107 of 2001

15th December, 2006

Citation: 2007(1) ALL MR 513

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Whether court should reject or return the plaint if the cause of action has occurred in the jurisdiction of another court?

  In the backdrop of the aforesaid legal position, reverting to the facts of the case, it appears that the territorial jurisdiction of the Civil Judge, Senior Division, Islampur, was sought to be questioned on the premise that the entire transaction between the plaintiff and defendant no.1 had occurred within the local limits of the jurisdiction of the Court at Pune, and no part of the cause of action arose within the limits of the Court at Islampur. Strictly speaking, it is not the case of the defendants that the plaint does not disclose a cause of action. At best, the case of the petitioners - defendants was that, though there was a cause of action for institution of the suit, yet, the same arose within the jurisdiction of the Court at Pune and, therefore, the  plaint was liable to be rejected. Ex facie, it appears that the grounds raised by the petitioners would, if accepted, warrant return of the plaint for presentation to the proper jurisdictional Court. A case for rejection of the plaint was thus not made out.{Para 10}

Bombay High Court

Ajay Bandu Darekar And Ors vs Adhikrao Baburao Deshmane And Anr on 9 December, 2019

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What is distinction between O 7 R 10 of CPC(Return of plaint) and S 10 of CPC(Stay of suit)?

At the outset, it is necessary to note a submission, of Mr. Sai Deepak, that Order VII Rule 10, and Section 10, of the CPC, were required to be read together. This submission deserves, in my opinion, to be rejected even at this stage. A bare reading of Section 10, and Order VII Rule 10, of the CPC, reveals that the submission of Mr. Sai Deepak is, in fact, contrary to the statutory scheme, as contemplated in the said provisions. Section 10 deals with stay of a pending suit, and reads thus:

"10. Stay of suit.-

No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they, or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.-The pendency of the suit in a foreign Court does not preclude the Courts in India from trying the suit founded on the same cause of action."

Order VII Rule 10, per contra, deals with "return of plaint", and reads thus:

"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 doubt, it is hereby declared that the Court of appeal or revision may direct, after setting aside the decree passed in the suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.-On returning of plaint, the Judge shall endorse thereon the date of its presentation and returned, the name of the party presenting it, and a brief statement of the reasons for returning it."

33. The plain words of Section 10, and Order VII Rule 10, of the CPC, disclose that they contemplate distinct eventualities, and envisage distinct consequences. Section 10 does not, in any manner, impact the maintainability of the suit, which is required to be stayed thereunder. The Supreme Court has, in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara MANU/SC/1063/2004 : AIR 2005 SCC 242, held that Section 10 applies only where "the whole of the subject matter in both the suits is identical". The fundamental test, which would determine the applicability, or otherwise, of Section 10 has, in the said decision, been identified as "whether on final decision being reached in the previous suit, such a decision would operate as res judicata in the subsequent suit". The guiding philosophy, behind the provision is, quite obviously, the inadvisability of two courts dealing with identical disputes, between the same parties, concurrently. The progress of the later suit has, therefore, statutorily been required to await the outcome of the suit preferred earlier in point of time. As against this, Order VII Rule 10A specifically contemplates a situation in which the suit, imperilled by the provision, should not have been instituted in the court in which it was instituted. The provision, therefore, relates to the point of time, and the stage, when the suit was instituted in the court, in stark contradistinction with Section 10, which impedes the trial of the suit, but does not, even indirectly, visualize any lacuna in the institution of the suit. The consequence, of Section 10 being applicable to a particular case, is stay of the trial in that case. The plaint is not returned to the plaintiff, for institution elsewhere. As against this, Order VII Rule 10 stipulates that, where the suit was instituted in a court, in which it ought not to have been instituted, the plaint shall be returned to the plaintiff, for being instituted in the proper court. Invocation of Order VII Rule 10, therefore, results in removal, completely, of the suit, from the records of the court, where it was erroneously instituted, whereas invocation of Section 10 merely places the trial of the suit in, as it were, a state of suspended animation.

34. The contention of Mr. Sai Deepak that Section 10 and Order VII Rule 10 of the CPC are required to be read together is, therefore, fundamentally misconceived, and is accordingly rejected.

IN THE HIGH COURT OF DELHI

I.As. 2594, 2595, 2596, 4274 and 5209/2020 in CS (COMM.) 611/2019

Decided On: 15.07.2020

FMC Corporation  Vs. NATCO Pharma Limited

Hon'ble Judges/Coram:

C. Hari Shankar, J.

Citation: MANU/DE/1380/2020

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Supreme Court: Court to conduct suit de novo after return of plaint

 Modern Construction (supra), referred to the consistent
position in law by reference to Ramdutt Ramkissen Dass vs.
E.D. Sassoon & Co., Amar Chand Inani vs. The Union of
India, Hanamanthappa vs. Chandrashekharappa, (1997) 9
SCC 688, Harshad Chimanlal Modi (II) (supra) and after also
noticing Joginder Tuli (supra), arrived at the conclusion as
follows:
“17. Thus, in view of the above, the law on the
issue can be summarised to the effect that if
the court where the suit is instituted, is of the
view that it has no jurisdiction, the plaint is to
be returned in view of the provisions of Order 7
Rule 10 CPC and the plaintiff can present it
before the court having competent jurisdiction.
In such a factual matrix, the plaintiff is
entitled to exclude the period during which he
prosecuted the case before the court having no
jurisdiction in view of the provisions of Section
14 of the Limitation Act, and may also seek
adjustment of court fee paid in that court.
However, after presentation before the court of
competent jurisdiction, the plaint is to be
considered as a fresh plaint and the trial is to
be conducted de novo even if it stood
concluded before the court having no
competence to try the same.”

Joginder Tuli (supra) was also noticed in Harshad
Chimanlal Modi (II) (supra) but distinguished on its own facts.
17. We find no contradiction in the law as laid down in Modern
Construction (supra) pronounced after consideration of the law
and precedents requiring reconsideration in view of any conflict
with Joginder Tuli (supra). Modern Construction (supra) lays
down the correct law. We answer the reference accordingly.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2904 OF 2020

M/S. EXL CAREERS  Vs  FRANKFINN AVIATION SERVICES  PRIVATE LIMITED 

NAVIN SINHA, J.
Dated: August 05, 2020

Citation: 2020(5) MHLJ 358

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Whether commercial court can refuse to entertain suit if the plaintiff has not exhausted the remedy of pre-institution mediation?

The learned Judge has directed to return the plaint on the ground that the petitioner should first exhaust the remedy of pre-institution mediation under Section 12(A)(1) of the Act. To see whether the invocation of Section 12(A)(1) of the Act in this case was right, it would be necessary to extract the provisions of Section 12(A)(1) of the Act. It reads as follows:

"12A. Pre-Institution Mediation and Settlement.- (1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government."

9. It can be seen from what is extracted above that it is only in cases where the suit does not contemplate any urgent interim relief that there is a bar for institution of the suit without the plaintiff exhausting the remedy of pre-institution mediation. The expression used in Section 12(A)(1) of the Act is "A suit which does not contemplate any urgent relief".

10. Unfortunately, the learned Judge has read the above expression to mean as if only in cases where the plaintiff is entitled to urgent interim relief, the provision will not apply. The entitlement of a party to an urgent relief is a matter that would come up for consideration if the suit is numbered and several aspects taken into account. What is required to satisfy Section 12(A)(1) of the Act is the contemplation of an urgent relief.

11. In any case, the very nature of a suit for injunction against infringement of a copyright, is such that urgent reliefs will invariably be contemplated. Therefore, it is completely wrong on the part of the Commercial Court to say that there is no urgency in the matter.

12. In view of the above, the impugned endorsement made on the plaint, filed by the petitioner, is wholly illegal and liable to be set aside. Accordingly, the revision is allowed, the impugned endorsement is set aside and the Commercial Court is directed to number the suit, if other procedural aspects are in order and proceed with the matter in accordance with law.

Telangana High Court

M/S.M K Food Products vs M/S.S H Food Products on 21 February, 2019

Bench: V Ramasubramanian, Shameem Akther

     CIVIL REVISION PETITION No.3690 of 2018


ORDER: (Per Hon'ble Sri Justice V. Ramasubramanian)

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Whether City civil court should return plaint if there are issues relating to title to property and tenancy in the suit?

 Straightaway, therefore, the order of 'return of the plaint' cannot be sustained. This was not a case of jurisdiction relating to territorial or pecuniary limits; had it been, an order of return of the plaint was correct. It was a finding that the suit as instituted was not cognizable by the civil court at all. That had to result in a dismissal of the suit - assuming that the entire suit could be so dismissed.[2]

20. There remains the question of whether the whole suit could have been dismissed, given the frame of prayer clause (a). Here again, I believe Mr. Godbole is correct, and the Small Causes Court could not ever have granted a declaration of title Ramji Gupta & Anr. v. Gopi Krishan Agrawal & Ors., MANU/SC/0365/2013 : (2013) 9 SCC 438. Interestingly, on the issue of a title declaration, the Small Causes Court could have returned the plaint for presentation to the appropriate court, but the converse is not true. This is inter alia because Section 23 of the Provincial Small Causes Court specifically provides for a return of a plaint for determination of questions of title.[3]

22. The decision of the Division Bench of this Court in Smita Rajeev Sah v. Roop Narain Sah MANU/MH/0269/2013 : (2013) 5 Mah LJ 211 : (2013) 6 Bom CR 193 is apposite. Dr. Chandrachud J (as he then was) speaking for the Division Bench said:

1. This appeal arises from an order of a learned Single Judge dated 16 March, 2012 deciding a preliminary issue of jurisdiction.

2. The first Appellant is the widowed daughter-in-law of the first and second Respondents. The second Appellant is the daughter of the first Appellant. The Respondents were 68 and 63 years of age respectively when the suit was instituted in 1995. The suit is for a declaration that the First Respondent is the lawful and rightful owner of flat A-51 together with a garage in a building known as Meherina, situate at Plot No. C-51, Napean Sea Road, Mumbai 400 026. The Respondents seek a declaration that the Appellants are trespassers and have no right, title or interest in the flat. Among the prayers is a prayer for possession, styled as a mandatory order and decree requiring the Appellants to remove themselves from the flat. The suit proceeds on the basis that the flat was purchased under an agreement for sale dated 11 June, 1965 by the First Respondent for a consideration of Rs. 1.80 lakhs and that the share certificate stands in the name of the First Respondent. The First Appellant and her spouse, who was the son of the Respondents, got married in 1982 and it has been stated that the Respondents permitted their son to reside with them as a member of the family. After he died in an accident on 29 October, 1994 it has been stated that the First Appellant "is now wrongfully claiming ownership/or share" in the said flat belonging to the First Respondent. For the purpose of these proceedings, it is not necessary to refer to the genesis or details of the dispute or the allegations of harassment made by the Respondents.

3. Issues were framed in the suit on 10 January, 2011. On 22 February, 2012 when the suit reached hearing, the Appellants asserted that in view of the decision of a Full Bench of this Court in Prabhudas D. Kotecha v. Manharbala J. Damodar , MANU/MH/0692/2007 : 2007 (5) Mh.L.J. (F.B.) 341 : 2007 (5) Bom. C.R. 1 the Court of Small Causes has exclusive jurisdiction to entertain and decide a suit against a gratuitous licensee. Hence, it was urged that the jurisdiction of this Court would be barred. In view of this defence, the following issue was framed as a preliminary issue:

"Whether this Court's inherent jurisdiction is barred".

The learned Single Judge has answered the preliminary issue by holding that the jurisdiction of this Court is not barred.

4. Counsel appearing on behalf of the Appellants submits that: (i) If the Appellants were to seek to establish a right to the premises, they would undoubtedly have to file a suit in the competent civil court; but in the present case, if the plaint is read in its entirety, it would be apparent that what the Respondents seek is possession of the premises from the Appellants; (ii) A suit for possession even against a gratuitous licensee is maintainable only before the Small Causes Court in view of the judgment of the Full Bench in Prabhudas D. Kotecha's case (supra); and (iii) In any case, even before the Small Causes Court, where a suit for eviction is filed, the question of title would have to be determined.

5. On the other hand, it was contended on behalf of the Respondents that: (i) A suit for a declaration under section 34 of the Specific Relief Act, 1963 would lie before this Court. The Respondents are required to seek such a declaration since the Appellants have asserted a claim and interest in respect of the premises on the ground that it is H.U.F. property; (ii) Once the Appellants have sought to interfere with or deny the title of the First Respondent in respect of the residential flat, the Respondents would necessarily have to seek and have sought a declaration before this Court on title and consequent to that, a decree for possession; (iii) The Small Causes Court would have no jurisdiction to adjudicate upon a question of title in view of the provisions of section 19(s) of the Presidency Small Causes Courts Act, 1882. Moreover, section 45 stipulates that nothing contained in Chapter VII (which would include section 41) shall be deemed to bar a party to a suit in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property.

6. A reading of the plaint in the suit instituted by the Respondents would indicate that they seek first and foremost a declaration of title to the residential flat as vesting in the First Respondent in view of the fact that the flat was purchased by him on 11 June, 1965 for a consideration of Rs. 1.80 lakhs. According to the Respondents, the deceased spouse of the First Appellant was a young child when the residential flat was purchased. The declaration has been sought in view of the fact that it has been averred in paragraph 3(d) of the plaint that the First Appellant is claiming ownership and/or a share in the residential flat. The suit is a declaratory suit within the meaning of section 34 of the Specific Relief Act, 1963. Under the proviso to section 34, no Court shall make any declaration where the Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The Respondents claim that they are entitled to possession and seek a mandatory injunction calling upon the Appellants to remove themselves from the residential flat.

7. The objection of the Appellants to the jurisdiction of this Court is founded on the provisions of section 41 of the Presidency Small Causes Courts Act, 1882 under which notwithstanding anything contained elsewhere in the Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings. The Full Bench has held in Kotecha that this would cover a suit against a gratuitous licensee. Section 41 forms a part of Chapter VII of the Act of 1882. Section 45, however, stipulates as follows:-

"45. Nothing contained in this Chapter shall be deemed to bar a party to a suit, appeal or proceeding mentioned therein in which a question of title to any immovable property arises and is determined, from suing in a competent court to establish his title to such property."

Consequently, notwithstanding anything contained in any other provisions of that Chapter, including section 41, there is no bar to a party to a suit in which a question of title to any immovable property arises from suing in a competent court to establish his title to such property. Apart from this, section 19(s) of the Act of 1882 specifically stipulates that the Small Causes Court shall have no jurisdiction inter alia in suits for declaratory decrees. From these provisions, it is clear that a suit seeking a declaration of title and in consequence a decree for possession of the nature that has been sought would be maintainable before this Court and the jurisdiction would not be barred by the provisions of section 41 of the Presidency Small Causes Courts Act, 1882. The question of title cannot be decided by the Court of Small Causes. Whether the First Respondent has an absolute right of ownership as claimed is an issue which has to be decided in the suit before this Court in which a declaration of title is sought. The view of the learned Single Judge cannot, therefore, be held to be in error.

(Emphasis added)

23. The present case differs from Smita Rajeev Sah only in this particular, viz., that there is an admission of a gratuitous license, and there is a finding of the existence of a tenancy. Consequently, the relief of possession vis-à-vis a tenant could not be granted by the City Civil Court. However, the question of declaration of title and ownership is not one that the Small Causes Court could ever grant. Even if the title is admitted, a decree on admission could only be granted by the City Civil Court and never the Small Causes Court. The provisions of Section 45 of the Presidency Small Causes Court would bar the Small Causes Court from ever issuing any such declaration.

24. For this reason, prayers (a) and (b) of the suit can only be within the remit of the City Civil Court. Only prayer clause (c), seeking a decree of possession against the defendants would be outside the jurisdiction of the City Civil Court and within the exclusive jurisdiction of the Small Causes Court, now that there is a finding, after evidence, of the existence of a tenancy in favour of those defendants against whom the decree of possession in sought.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 291 of 2014 in Suit No. 6319 of 2005

Decided On: 31.07.2017

M.S. Shetty Vs.  Anoop Vyas 

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation:  MANU/MH/4533/2017 

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Whether order rejecting application for return of plaint is revisable?

The decision of the Supreme Court reported as (2003) 6 SCC

659, Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj

Developers & Ors., illuminates the Court as to which order would be

revisable and which would not be revisable and that orders which are

not revisable are amenable to challenge under Article 227 of the

Constitution of India. In paragraph 32 of the decision it has been held

as under:

“32. A plain reading of Section 115 as it stands makes it

clear that the stress is on the question whether the order in

favour of the party applying for revision would have given

finality to suit or other proceeding. If the answer is “yes”

then the revision is maintainable. But on the contrary, if the

answer is “no” then the revision is not maintainable.

Therefore, if the impugned order is interim in nature or

does not finally decide the lis, the revision will not be

maintainable. The legislative intent is crystal clear. Those

orders, which are interim in nature, cannot be the subject

matter of revision under Section 115. There is marked

distinction in the language of Section 97(3) of the Old

Amendment Act and Section 32(2)(i) of the Amendment

Act. While in the former, there was clear legislative intent

to save applications admitted or pending before the

amendment came into force. Such an intent is significantly

absent in Section 32(2)(i). The amendment relates to

procedures. No person has a vested right in a course of

procedure. He has only the right of proceeding in the

manner prescribed. If by a statutory change the mode of

procedure is altered, the parties are to proceed according to

the altered mode, without exception, unless there is a

different stipulation.”

10. Following the law declared by the Supreme Court in Shiv Shakti

Co-op. Housing Society , we answer the reference by holding that an

order rejecting an application filed by a party in a suit praying that the Court, having no territorial jurisdiction, should return the plaint, is not a revisable order and challenge to such order has to be by way of a proceeding under Article 227 of the Constitution of India.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 800 OF 2010

Accent Construction & Contractors Pvt. Ltd.  Vs. M/s. Shah Nagindas Mancharam & Sons

CORAM : PRADEEP NANDRAJOG, C.J. &

SMT. BHARATI DANGRE, J.

DATE : 3 rd DECEMBER, 2019 .

ORAL JUDGMENT (Per Pradeep Nandrajog, CJ)

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Supreme Court: Court Fees is to be refunded to plaintiff if plaint is returned

The appeal filed by the petitioner was dismissed. However, the

plaint was ordered to be returned with liberty to file it before

the court of competent jurisdiction.

Thereafter, the petitioner filed an application for refund of

the court fees. This application has been rejected only on the

ground that the appeal has been disposed of on merits. We are

unable to agree with the High Court. What has been disposed of is

only the rejection order under Order VII Rule 10 of the Code of

Civil Procedure. This is no order on the merits of the suit. The

effect is that the plaint has been ordered to be returned to be

filed in the appropriate Court. Therefore, the petitioner was

entitled to refund of the court fees so that he can fix the court

fee in the State where he would like to file the suit. We therefore

set aside the order of the High Court and direct that the entire

court fees be refunded to the petitioner.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s).18102/2013

DR (COL.) SUBHASH CHANDRA TALWAR Vs T. CHOITHRAM 

Date : 25-10-2019

 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DEEPAK GUPTA

HON'BLE MR. JUSTICE SURYA KANT

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Whether order of return of plaint is decree?

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.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 415 of 2014 and Civil Application No. 469 of 2014

Decided On: 30.01.2015

 Chandra Prem Shah Vs. K. Raheja Universal Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

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Whether De novo proceeding is to be initiated after return of plaint?

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 themselves 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.

17. The present are the cases which have been filed by the plaintiffs in the Court of Competent jurisdiction. However, earlier they were transferred to the District Courts in view of the notification and now the district courts have lost pecuniary jurisdiction as a result of the order of the Court at the behest of the parties. The interim orders, undertakings have continued for years together. In some cases evidence has been recorded. It will be travesty of justice if the proceedings have to commence de novo right from the stage of filing a written statement as the plaintiff would be returned only plaint, to be presented before the court of competent jurisdiction there is nothing in the provisions of Order 7 Rule 10 which on its plain reading or by necessary implication be construed as a bar to maintainability of a petition under Section 24 of the Code....

27. It is held, on the basis of the above reasoning, and the line of decisions following Joginder Tuli (supra) and Aviat Chemicals (supra), the proceedings in the present case do not have to commence de novo, but from the stage they were in the court of the Additional District Judge.

IN THE HIGH COURT OF DELHI

FAO(OS) 64/2013 and C.M. APPL. 1784/2013

Decided On: 28.11.2013

 Narendar Singh Vs. The Indian Institute of Architects

Hon'ble Judges/Coram:

S. Ravindra Bhat and Najmi Waziri, JJ.

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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.

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Whether judgment passed by civil court will be nullity if family court is working in that area?

However, the issue is, when no objection was raised to the jurisdiction in the trial Court but was raised in the Ist & IInd appellate Courts, whether it is curable irregularity and whether the judgment & decree would be binding unless prejudice is shown to the parties. If the establishment of Family Court and vesting of exclusive jurisdiction with the Family Court is treated at par with the territorial jurisdiction, then the decision passed by Civil Judge Sr. Divn., will not be a nullity. However, if it is subject-wise exclusion of jurisdiction u/s. 8, the decision will be a nullity.

10. Learned counsel Shri. Patil placed reliance on Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors. reported in MANU/SC/0703/2013 : AIR 2013 SC 3060, wherein it is laid down that, if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.

11. Section 8 is specific. It lays down that, where a family court is established in any area, no district Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation. Similarly, the jurisdiction of the Magistrate court is also ousted by the sub-clause (b).

15. The specific ouster of jurisdiction of the courts in respect of area for which the Family court has been established u/s. 8 shows that, the subject-wise jurisdiction of Civil Judge Sr. Divn., has been ousted and it is not a simple question of territorial jurisdiction. Therefore, the decisions rendered by the courts having no subject-wise jurisdiction will be a nullity.

16. In fact, the Civil Judge Senior Division should have been more careful and should not have entertained the petition and should have returned it for presentation before the proper court. Whenever in any city there is a family court, all Civil Judges (Sr. Divn.) should see whether the cause of action for the matrimonial petitions filed before them arises within the area for which Family Court has been established or not. If it is established, the Civil Judges (Sr. Divn.) should return the plaint and should avoid unnecessary wastage of time, money and energy of the litigants. As Sec. 8 of the Family Courts Act has taken away the jurisdiction, the decisions rendered by the Civil Judges (Sr. Divn.) and District Courts are nullity.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 237 of 2016

Decided On: 02.11.2018

 Ravindra Sukhdev Ghadge  Vs. Swati Ravindra Ghadge and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(2) MHLJ 110

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Whether court should permit previous recorded evidence to be read after return of plaint?

 Normally, when the plaint is directed to be returned for presentation to the proper Court perhaps it has to start from the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from that state at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 13235 of 1996

Decided On: 07.10.1996

 Joginder Tuli Vs.  S.L. Bhatia and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and G.B. Pattanaik, JJ.

Citation:(1997)1SCC 502

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Whether documents filed along with plaint can be treated as part of plaint?

Order 7, Rule 11, of the Civil Procedure Code provides that, where the suit appears from the statement in the plaint to be barred by any law, the plaint may be rejected and the contention of the learned Counsel is that the learned District Munsif ought to have held on the pleadings that there was a doubt about the actual date on which the promissory note was executed and should have relegated the question of limitation to be decided during the trial and that he was wrong in looking into the promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi at that stage. The question whether the recitals made in the promissory note, which was admittedly filed by the petitioner along with the plaint, should be treated as part of the statement in the plaint, is not free from difficulty ; and it-does not appear that there is any direct decision on this point. One thing, however, is clear and it is that a document which is referred to in, forms the basis of and is 'filed along with the plaint should be treated as part of the plaint. It must be borne in mind that Order 7, Rule 14 (1) stipulates that the plaintiff shall produce in Court the document upon which he sues, when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. In my view, it would be artificial to divorce the said document from the plaint and to contend that the said document which is admittedly filed along with and forms the basis of the plaint should not be looked into by the Court and should not be regarded as part of the plaint while checking the plaint before filing the suit. 

IN THE HIGH COURT OF MADRAS

Decided On: 03.03.1969

 Nithayya Thevar Vs. Subramanian Ambalakarar

Hon'ble Judges/Coram:
Ganesan, J.

Citation:1970(1) MLJ 400.

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Whether plaint can be rejected if allegations in plaint are at variance with recitals in document filed along with plaint?

Order 7, Rule 11, of the Civil Procedure Code provides that, where the suit appears from the statement in the plaint to be barred by any law, the plaint may be rejected and the contention of the learned Counsel is that the learned District Munsif ought to have held on the pleadings that there was a doubt about the actual date on which the promissory note was executed and should have relegated the question of limitation to be decided during the trial and that he was wrong in looking into the promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi at that stage. The question whether the recitals made in the promissory note, which was admittedly filed by the petitioner along with the plaint, should be treated as part of the statement in the plaint, is not free from difficulty ; and it-does not appear that there is any direct decision on this point. One thing, however, is clear and it is that a document which is referred to in, forms the basis of and is 'filed along with the plaint should be treated as part of the plaint. It must be borne in mind that Order 7, Rule 14 (1) stipulates that the plaintiff shall produce in Court the document upon which he sues, when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. In my view, it would be artificial to divorce the said document from the plaint and to contend that the said document which is admittedly filed along with and forms the basis of the plaint should not be looked into by the Court and should not be regarded as part of the plaint while checking the plaint before filing the suit. Where the allegations in the plaint are at variance with the material recitals in the document which form the basis of the suit, it would be open to the Court to return the plaint for rectification; and in a case of this kind it appears to me clear that the Court would be perfectly justified in treating the recitals in such documents as part of the statement in the plaint for purposes of rejection under Order 7, Rule 11 of the Civil Procedure Code.

4. In this particular instance, the suit filed on 14th August, 1967 on the basis of the suit promissory note which admittedly bears only the Tamil date 27th Adi, Krodhi (corresponding to nth August, 1964) is clearly barred by time; and the only question for consideration is whether the lower Court was right in basing its rejection on the suit promissory note when the plaint has given two different dates and when the suit is not barred if the English date given in the plaint is acted upon. It is plain that a fraud is sought to be played by the plaintiff on the Court by deliberately giving the wrong English date in the plaint; and it appears to me clear that he should not be permitted to turn round and blame the Court for not adhering to Order 7, Rule 11, Civil Procedure Code, strictly to the letter. In cases of this kind it is perfectly open to the Court to rely upon the date given in the document which is admittedly produced along with the plaint and referred to in the schedule, especially when the said date is also referred to in the body of the plaint along with the wrong date. There is absolutely no material to warrant interference in version. The rejection of the plaint is proper.

IN THE HIGH COURT OF MADRAS

Decided On: 03.03.1969

 Nithayya Thevar Vs. Subramanian Ambalakarar

Hon'ble Judges/Coram:
Ganesan, J.

Citation:1970(1) MLJ 400.

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Whether composite application for rejection of plaint and return of plaint is tenable?

 It is a trite law that plaint could be returned
at any stage of the suit to be presented to the
Court in which the suit should have been
instituted, if the Court finds that the Court did
not have the territorial or pecuniary
jurisdiction to try the suit. There are no
conditions or circumstances specified in Rule 10
for return of the plaint, as specified for
rejection of the plaint under Rule 11 of Order
VII. Though not specifically stated, Rule 11
casts duty on the Court to reject the plaint, if
the case falls under any of the clauses mentioned
therein. If both the provisions are perused
closely, it transpires that both are independent
provisions available to the defendant in the
suit. Where the plaint does not disclose a cause
of action, it is liable to be rejected under
Clause (a) of Rule 11 and could not be returned
under Rule 10. Similarly, where the relief
claimed is not valued properly or if properly
valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff on
being required by the Court to correct the
valuation or to submit the requisite stamp paper
as the case may be within the time fixed by the
Court fails to do so, the plaint is liable to be
rejected under Clause (b) or Clause (c), as the
case may be, of Rule 11 and could not be returned

under Rule 10. Similarly, where the suit appears
from the statement made in the plaint to be
barred under any law, then also the plaint is
liable to be rejected Clause (d) of under Rule 11
and could not be returned under Rule 10. Thus, a
duty is cast on the Court to reject the plaint
when the same is hit by any of the infirmities
provided in the clauses of Rule 11 even without
the intervention of the defendant. Whereas the
plaint could be returned under Rule 10 only when
the Court comes to the conclusion at any stage
of the suit that the plaint was not presented to
the Court having jurisdiction to try the suit,
and under the circumstances, it has to be
returned to be presented to the Court in which
the suit should have been instituted. Thus, on
the plain reading of the said provisions as
contained in Rule 10 and 11 of Order VII, it
clearly emerges that they are mutually exclusive
to each other, and the reliefs could not be
prayed for alternatively, either under Rule 10 or
under Rule 11 as sought to be prayed for in the
instant case by the applicant – defendant before
the trial Court. The Court, therefore, is the
opinion that such a composite application under
Rule 10 and Rule 11 of Order VII as such would
not be maintainable. {PARA 6}
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 10 of 2015

H D F C BANK LIMITED.
V
ASHAPURA MINECHEM LIMITED..

CORAM:  MS.JUSTICE BELA M. TRIVEDI
Date : 13/10/2017

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Whether it is necessary to conduct fresh trial after return of plaint?

The issue raised in this matter is no longer res integra. In the case of Harshad Chimanlal Modi (II) v. DLF Universal Ltd. and another MANU/SC/2521/2005 : (2006) 1 Supreme Court Cases 364, on which heavy reliance has been placed by the learned counsel for petitioners, the Honourable Apex Court has held that when the plaint is returned by the Court not having jurisdiction to be presented before the Court having jurisdiction, it is not a case of "transfer" and it is a case of lack of jurisdiction of the first Court and that, in such an event, there is in the subsequent Court, no continuation of proceeding initiated in the wrong Court. The Honourable Apex Court has further held that this is for the reason that the proceedings initiated in the wrong Court were the proceedings taken by the Court not having jurisdiction over the subject matter of the proceeding and, therefore, would stand vitiated in the eye of law. This is the reason why the Honourable Apex Court held that in such a case, fresh trial is necessary.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 7700 of 2015

Decided On: 09.02.2017

 Shri Gajanan Sahakari Sakhar Karkhana Ltd.Vs. Yashsree Engineering Works and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Ciation: 2017(2) ALLMR 407

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