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Judgment
S.G. Shah, J.—Admit. Learned Advocate Mr. Navin Pahwa waives service of notice of admission on behalf of respondent. The impugned order dated 13.09.2013 by the Family Court No. 4 of Ahmedabad below Exhibit 16 in Civil Suit No. 1109 of 2013 preferred by present appellant against present respondent for restraining him from transferring or alienating in any manner the suit properties and for declaration that she has got 50% share of such properties. Application at Exhibit 16 below which impugned order was passed, was filed by the respondent/defendant for rejection of plaint under Order VII Rule 11 of CPC for want of sufficient Court fee stamp. Whereas the Family Court has passed an order under Order VII Rule 10 of the CPC (''C.P.C.'' for short) in following terms:
The plaint Exh. 1 is hereby ordered to be returned as per O. VII R. 10 of the Code of Civil Procedure.
It is further order that as the petitioner has to institute the suit by joining the legal owner of disputed property before the Court having jurisdiction.
Order passed below Exh. 5 is hereby vacated.
No Order to Cost.
whereas the prayer below Exhibit 16 reads as under:
a. Hon''ble Court be pleased to reject the plaint.
b. Hon''ble Court be pleased to grant such other and further reliefs as may be deemed just and proper in the facts and circumstances of the case.
Therefore, though technically it can be said that pursuant to relief in para 16 b. the Court has erred to pass any order, any such order should be strictly in accordance with law. Since, trial Court has passed an order under Order VII Rule 10 of the C.P.C. and since application is under Order VII Rule 11 of the C.P.C. it would be appropriate to recollect such provisions. However in Order VII Rule 10 of the C.P.C. there is reference of Rule 10A of the C.P.C. also and therefore Rule 10, 10A and 11 under Order VII of the C.P.C. is reproduced herein below for ready reference:
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 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.
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) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court-
(a) Specifying the Court in which he proposes to present the plaint after its return,
(b) Praying that the Court may fix a date for the appearance of the parties in the said Court, and
(c) Requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit;
(a) Fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and
(b) Give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearances is given under sub-rule (3).--
(a) It shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise direct, and
(b) The said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.
Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
Therefore, perusal of provision of relevant rules itself makes it clear that there is apparent error by the Family Court in passing impugned order, which resulted into irregularity and illegality and therefore same is required to be interfered by quashing and setting aside such order and to remand the matter back to the Family Court No. 4 for taking a decision afresh in accordance with law as discussed here under.
3.1 Since at present I am remanding the matter back on legal and procedural aspect, I do not think it fit to scrutinize, discuss and determine any issue relating to factual aspect so as to prejudice the trial on either side. Thereby it is open for both the parties to file and submit relevant evidence for determination of such primary issue as raised by the respondent. Considering the overall situation it would be appropriate for the trial Court to practically frame primary issue regarding jurisdiction of Court and to decide it in accordance with law as discussed herein under, since plaint is returned back by the Court by impugned order mainly on the ground of jurisdiction.
3.2 So far as para 2 of the impugned order is concerned there are provisions in law in case of non-joinder of parties. It is certain that the Court should not direct the litigant to take particular steps in particular manner so far as pleadings and selection of parties are concerned. It is for the litigant to decide his fate and to select appropriate proceedings. In any case if such order is proper then it is deciding ownership of disputed properties without providing reasonable opportunity to all concerned to prove the ownership of all such properties. Therefore also all the observations and findings by the Family Court No. 4 are required to be quashed and set aside with direction to decide the application afresh in accordance with law.
3.3 The reason for arriving at above conclusion is very simple. If we perused the relevant provisions of Order VII of the C.P.C. reproduced herein above, it becomes clear that the power of the Court to reject the plaint is different then the power to return the plain. So far as rejection of plaint is concerned in Rule 11 of the C.P.C. specific instances with all reasons are assigned viz;
a) Non-discloser of cause of action,
b) under valuation of the relief following with non compliance to correct the valuation by the plaintiff even after Court''s direction within time period fixed by the Court,
c) for want of sufficient Court fee stamp following with non compliance of Court''s direction in prescribed time period,
d) if statement in the plaint is barred by any law,
e) if duplicate copy of plaint is not filed, or
f) plaintiff fails to comply with the provision of Rule 9.
3.4 The proviso to Rule 11 of the C.P.C. permits the Court to extend the time for correcting the valuation of suit and for payment of requisite Court fee stamp beyond time fixed by the Court whereas Rule 9 under Order VII of the C.P.C. deals with procedure of admitting the plaint wherein it is stated that plaintiff shall present as many as copies of plaint as there are defendants within 7 days from the date of order of appeal along with requisite process fee for service of summons upon defendants.
3.5 Thus Order VII Rule 11 of the C.P.C. does not deal with the power and right of the Court with reference to jurisdiction of the Court.
So far as para 2 in impugned order is concerned, the judgment in case of Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria, is necessary to recollect wherein the Honorable Apex Court has categorically held that the defect of misjoinder of parties and cause of action is not a ground for rejection of plaint.
4.1 Whereas in Smt. Sisir Kana Guha and others Vs. Ayakar Grihanirman Samabaya Samity Ltd. and another, the High Court has observed that practically Order VII Rule 11 of the C.P.C. is extending a power of the Court to reject the plaint, as if it is not filed, for non-removal of defects. But the Court cannot return the same for being presented to some other Court except in case of ground (b) of Rule 11 of the C.P.C. wherein if valuation of the suit exceed the jurisdiction of the Court, then it becomes under the ambit of Order VII Rule 10.
4.2 In Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, the Honourable Apex Court has also categorically held that the plaint cannot be rejected on the basis of allegations made by the defendant in his written statement or an application for rejection of the plaint. The Court has to read the entire plaint as whole to find out whether it discloses the cause of action and if it does, than the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the C.P.C. Essentially, whether the plaint discloses cause of action is a question of fact which has to be gathered on the basis of averments made in the plaint taking those averments to be corrected.
4.3 Therefore in present case the application at Exhibit 16 is itself misconceived. Reference of Rule 13 under Order VII of the C.P.C. would be relevant which provides that the rejection of the plaint on any of the ground mentions in Rule 11 of the C.P.C. shall not on its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. This fact should be remembered by the Court and the defendants that every litigant has a right to agitate his dispute and such dispute must be decided on its own merits in accordance with law but no litigation can be thrown off without being determined by the competent authority in accordance with law. Access to justice is the basic rule of our jurisprudence.
Then comes the reference of provisions of Order VII Rule 10 of the C.P.C. under which the impugned order is passed, whereby the trial Court has ordered to return the plaint to the appellant. Such rule starts with the phrase "subject to the provisions of Rule 10A". Therefore, any order under Rule 10 can be passed only if provision of Rule 10A of the C.P.C. satisfied and therefore both the Rules are reproduced herein above. If we perused Rule 10A of Order VII of the C.P.C. it becomes clear that Sub-rule 1 of Rule 10A under Order VII of the C.P.C. specifically provides that 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. Sub-rule 2 of Rule 10A of the C.P.C. specifically provides that, where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court-
(a) Specifying the Court in which he proposes to present the plaint after its return,
(b) Praying that the Court may fix a date for the appearance of the parties in the said Court, and
(c) Requesting that the notice of the date so fixed may be given to him and to the defendant.
Thereafter, Sub-rule 3 and 4 of Rule 10A of the C.P.C. specifically provides the procedure for the Court to be followed while passing order under such rule.
Therefore, the law is very much clear and there is specific provisions under order VII Rule 10A of the C.P.C. that the Court shall, before passing the order under Rule 10 of the C.P.C. of returning the plaint, intimate its opinion/decision to the plaintiff that plaint should be returned to him so as to enable the plaintiff, to make an application to the Court for specific directions as enumerated in Sub-rule 2 of Rule 10A of the C.P.C.
In light of above discussion if we perused the impugned order, it becomes clear that the trial Court has failed to intimate the plaintiff before passing order under Order VII Rule 10 of the C.P.C. more particularly when there is no reason to pass an order under Order VII Rule 10 of the C.P. C and when for relief claimed by the defendant is only under Order VII Rule 11 of C.P.C.
8.1 Such issue is considered by the Delhi High Court in case of Alphabetics Pvt. Ltd. Vs. Lohia Jute Press, , wherein it is categorically observed and held that the Court in terms of Rule 10A of Order VII of the C.P.C. shall give intimation of its opinion to the plaintiff and that on such intimation being given to the plaintiff, it is open for the plaintiff to make an application to the Court, specifying as to in which Court he proposed to submit the plaint after it is returned and prayed to Court for fixing the date for appearance of parties and also request that the notice of the date so fixed be given to the parties by the Court. There are obvious reasons for such provisions. When litigant is already present before the Court, he may not be required to be served again and Court where such suit is required to be presented may not refused to accept the said litigation which was initially presented but returned by the first Court. Since the family Court has failed to follow the procedure under Order VII Rule 10A of the C.P.C. there is no option but to quash and set aside the order by allowing this appeal. Therefore appeal is allowed, impugned order is quashed and set aside. Thereby suit No. 1109 of 2013 shall get revived before the Family Court No. 4, Ahmedabad which shall dealt with the suit in accordance with law. There shall be no order as to costs.