Anitha R. vs Stone Craft Abrasives and Others

B. Manohar, J.—Petitioner is the 3rd defendant in O.S. No. 92/2011 on the file of the Additional Civil Judge and JMFC, Doddaballapura, being aggrieved by the order dated 17-08-2013 directing the petitioner herein to be present before the court on 17-09-2013, without any further notice, filed these writ petitions.

The first respondent herein filed a suit seeking for declaration, declaring that allotment of schedule site made in favour of the 3rd defendant by the first defendant is in violation of provisions of the Karnataka Industrial Area Development Board Act and as such null and void and the same is not binding on the plaintiff and not to deliver the possession of the suit schedule property to the 3rd defendant. During the course of trial, the defendants have raised an issue regarding pecuniary jurisdiction of the Court. The Trial Court after examining the matter in detail by its order dated 4-6-2013 held that the subject matter of the suit is beyond the pecuniary jurisdiction of the court and the plaintiff was directed to file necessary application under Order VII Rule 10-A of CPC, if any. On the basis of the said direction, the plaintiff filed an application under Order VII Rule 10-A of CPC. The Trial Court after considering the matter in detail directed the office to return the plaint within 7 days and also directed the petitioner to present the same before the Senior Civil Judge at Doddaballapur. The Trial Court further directed the parties to appear before the said Court on 17-09-2013 without any further notice and also directed the office to send back the court file in O.S. No. 2278/1990 to the City Civil Judge, Bangalore, forthwith. The third defendant being aggrieved by the order dated 17-08-2013 directing her to appear before the court on a particular date and permitting the plaintiff to present the papers before the Senior Civil Judge without examining the court fees payable by them has filed these writ petitions.

Sri H.R. Ananthakrishna Murthy, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. It is the specific case of the petitioner that when once the Court comes to the conclusion that the court has no jurisdiction to try the particular suit, it has to return the papers. So that the plaintiff can present before the court having jurisdiction and it amounts to filing of fresh plaint and the Court cannot call upon the defendant to be present before the Court on a particular day. The procedure adopted by the Trial Court under Order VII Rule 10-A of CPC is contrary to the law laid down by the Hon''ble Supreme Court in the judgment reported in ONGC Ltd. Vs. Modern Construction and Company, of the said judgment reads as under:

"13. Thus, in view of the above; the law on the issue can be summarized 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 VII, 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 defendant novo even if it stood concluded before the court having no competence to try the same." Hence, sought for allowing the writ petition.

On the other hand, Sri. Vinod Reddy, learned counsel appearing for the respondents argued in support of the order passed by the Trial Court. The Trial Court having come to the conclusion that the court has no pecuniary jurisdiction to try the suit, called upon the plaintiff to file an application under Order VII Rule 10-A of CPC. In order to avoid further delay in the matter, since the contesting defendant is already served, the Trial Court directed the petitioner to appear before the court on a particular day. The order dated 17-08-2013 cannot be found fault and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.

The records clearly disclose that on an application filed by the plaintiff under Order VII Rule 10-A of CPC, the court had directed the office to return the plaint within 7 days and permitted the plaintiff to present the same before the Senior Civil Judge and JMFC, Doddaballapur. Order VII Rule 10-A provides that while returning the plaint, fix the date for appearance before the court where the plaint is to be filed after its return. Accordingly, the procedure has been followed by the Trial Court. The main objection of the petitioner is that the Trial Court cannot issue direction to the defendant to be present on a particular date. The Senior Civil Judge and JMFC, Doddaballapur has not examined the court fees payable, which is contrary to law. There is some substance in the submission of the Advocate appearing for the petitioner. The Civil Procedure Code do not provide for the court to direct the defendant to be present before the court on a particular date.

In the instant case, pursuant to the direction issued by the court, the defendant has already entered appearance. In the facts and circumstances of the case, it is appropriate to direct the Senior Civil Judge and JMFC, Doddaballapur to examine the plaint and court fees payable and proceed with the matter, in accordance with law.

Since the defendant has already entered appearance, the issuance of notice is not necessary. However, it is open to the defendant in the suit to raise objections regarding court fees. If any such objections are raised, the Trial Court shall consider the same, in accordance with law.

With the above observations, the writ petition is disposed of.