High Court
Case Details
WP(C) 169/2006 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN ne appears for the respondents. Heard Mr. N. N. Karmakar, learned counsel for the petitioner. No 2. This is an application under Article 226 of the Constitution of India challenging the legality and validity of order dated 12.12.2005 passed by the learned Civil Judge (Senior Division) No. 2, Guwahati rejecting the petition filed by the petitioner for dismissal of the suit. 3. A brief narration of the facts may be necessary.
Legal Reasoning
4. A suit was filed by respondent No. 1 as plaintiff, where in the petitioner was the defendant, in the Court of Civil Judge (Junior Divisio n) No. 1, Guwahati for declaration of right, title, interest and recovery of pos session of the suit land by evicting the defendant (petitioner) and for permanen t injunction. The suit was registered as Title Suit No. 182/2003. Defendant ente red appearance on receipt of notice and filed written statement. Stand was taken that the suit land was purchased by the defendant by a sale deed. 5. Plaintiff i.e. respondent No. 1 thereafter filed an application for amendment of the plaint. It was contended that after filing of written state ment by the defendant, plaintiff came to know that the proforma defendant had ex ecuted a registered sale deed in favour of the defendant (petitioner). The said sale deed was, therefore, also required to be challenged. The application for am endment was objected to by the defendant on the ground that it would lead to enh ancement of the valuation of the suit and the Court would not have the pecuniary jurisdiction to try the suit. Learned Civil Judge (Junior Division) No.1, Guwah ati passed an order dated 31.03.2004 returning the plaint to the plaintiff to be filed before the proper Court. It was held that a perusal of the sale deed indi cated that the land had been valued at Rs. 75,000/- and the plaintiffs had sough t for cancellation of the sale deed. In such a case, the plaintiff would have to pay ad valoram Court fee of Rs.75,000/- which would be beyond the pecuniary jur isdiction of the Court. Plaintiff filed an application under Order 47 Rule 1 CPC read wi 6. th Section 114 thereof for review of the order dated 31.03.2004 stating that the order for return of plaint was erroneous on the face of the record. On an appli cation for amendment, Court had returned the plaint. Court had the jurisdiction either to allow the petition for amendment of the plaint or to reject the same, but not to return the plaint. Objection was filed by the petitioner to the afore said application for review. In paragraph 4 of the objection, petitioner stated that the Court was correct in passing the order returning the plaint with a dire ction to file the same in proper Court. 7. Learned Civil Judge (Junior Division) No. 1, Guwahati thereafter passed an order dated 12.07.2004 rejecting the said petition by holding that th e order sought to be reviewed was an appealable order. 8. Thereafter, respondent No. 1 filed the plaint in the Court of Ci vil Judge (Senior Division) No. 2, Guwahati with enhanced suit value on the same subject matter. The suit was registered as Title Suit No. 353/2004. 9. Petitioner submitted an application under Section 3 of the Limit ation Act for dismissal of the suit which was registered as Misc. Case No. 223/2 005 and objection was filed by the plaintiff to the said petition. 10. r passed an order dated 12.12.2005 rejecting the said petition. Learned Civil Judge, (Senior Division) No. 2, Guwahati thereafte 11. Aggrieved, petitioner has filed the present petition challenging the legality and validity of the said order. 12. Before proceeding further, it may also be relevant to note that after rejection of the review petition, the plaintiff again filed a petition in the Court of Civil Judge (Junior Division) No. 1, Guwahati for passing necessary order as per provision of Order VII Rule 10 CPC. Learned Civil Judge (Junior Di vision) No. 1 passed an order dated 04.08.2004 allowing the said petition by dir ecting the parties to appear before the Court of Civil Judge (Senior Division) N o. 1, Guwahati on 11.08.2004. Again, a notice dated 20.08.2004 was issued to the learned advocates for the defendants by the learned Civil Judge (Junior Divisio n) No. 1 stating that plaintiff would file the plaint of Title Suit No. 182/2003 in the Court of the learned Civil Judge (Senior Division) No. 1, Guwahati and 0 4.09.2004 was fixed for appearance of the defendant.
Legal Reasoning
Mr. Karmakar, learned counsel for the petitioner submits that th 13. e procedure adopted by the learned Court below is unauthorized in law. He submit s that learned Civil Judge (Junior Division) did not follow the procedure prescr ibed under Order VII Rule 10 and 10A of the Civil Procedure Code while returning the plaint. He further submits that the plaintiff was aware of the position and , therefore, he sought for review of the order returning the plaint. After rejec tion of the review, he could not have obtained another order from the same Court under Order VII Rule 10 of the Civil Procedure Code. The said Court without adh ering to the procedure prescribed in the aforesaid two provisions, passed the or der dated 04.08.2004. This aspect was not gone into by the learned Civil Judge ( Senior Division) No. 2 when the order dated 12.12.2005 was passed. The issue bef ore the Court was not whether the suit was barred by limitation but whether with out following the procedure prescribed, the plaint could have been re-filed in a higher Court. Referring to the documents placed on record, learned counsel for the petitioner submits that after the order dated 31.03.2004, the plaintiff file d the same plaint in a different/higher Court by only changing the valuation of the suit. No challenge was made to the sale deed for which amendment was sought for, which resulted in the return of the plaint.
Decision
14. Despite service of notice, respondents have not appeared. This C ourt by order dated 25.01.2006 had admitted the writ petition and had requisitio ned the case records. 15. This petition though filed under Article 226 of the Constitution , should have been filed under Article 227. Having regard to the long pendency a nd the subject matter of the case, the Court is of the view that the petitioner should not be non-suited on this Count. Accordingly, this petition is being trea ted as a petition under Article 227 of the Constitution of India and decided acc ordingly. 16. Provision relating to return of plaint is contained in Order VII Rules 10 and 10A of the Civil Procedure Code. Rule 10 is subject to the provisi ons of Rule 10A. It provides that the Court may at any stage of the suit return the plaint to be presented to the Court in which the suit should have been insti tuted. On returning the plaint, the Judge should endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statem ent for returning the plaint. 17. Before proceeding to Order VII Rule 10A, it may be relevant to n ote, as already noticed earlier, that the defendant had appeared in the suit and filed written statement. On the basis of the written statement, the application for amendment was filed on the ground that the defendant claimed possession ove r the suit land on the strength of a sale deed. The learned Court below took the view that if the amendment was allowed, it would lead to increase in the valuat ion of the suit and, therefore, the Court would not have the pecuniary jurisdict ion to try the suit. Accordingly, the plaint was returned. But neither the amend ment was allowed nor rejected. 18. Rule 10A provides that in a suit where the defendant had appeare d and the Court is of the opinion that the plaint should be returned, it should intimate its decision to the plaintiff before doing so. When an intimation is gi ven, the plaintiff may make an application to the Court, specifying the Court in which he proposes to present the plaint after its return and also for fixing a date of appearance. If such an application is made, the Court shall before retur ning the plaint and notwithstanding the fact that the order for returning of pla int was made because of the ground that it had no jurisdiction to try the suit, fix the date of appearance of the parties in the Court in which the plaint is pr oposed to be presented and give notice to the plaintiff and the defendant of the date for appearance. The said procedure is necessary to obviate the requirement of serving summon on the defendant afresh by the Court in which the plaint is p resented after return. 19. A perusal of the orders dated 31.03.2004 and 04.08.2004 would in dicate that the said procedure was not followed while returning the plaint. On t he contrary, learned counsel for the petitioner has pointed out that without mak ing any change in the plaint by incorporating the challenge to the sale deed, pl aintiff simply filed it before another Court by just changing the valuation of t he suit. 20. This Court finds that the learned Civil Judge (Senior Division) No. 2 while passing the impugned order dated 12.12.2005 did not consider the afo resaid aspect of the matter. The issue was not about the discretion of the plain tiff to file an appeal or suit or whether the suit was filed within time. Questi on for consideration was whether without following the procedure prescribed in O rder VII Rules 10 and 10 A, the plaint could have been refiled. Prima facie, the re is substance in the submission of the petitioner, which appears to have been overlooked by the learned Civil Judge (Senior Division) No. 2, Guwahati. 21. it in view of the order that is proposed to be passed. Beyond this, the Court would not like to make any comment on mer 22. y set aside and quashed. Thus, considering the above, the order dated 12.12.2005 is hereb 23. Matter is remanded back to the learned Civil Judge (Senior Divis ion) No. 2, Guwahati to take a fresh decision on the petition filed by the petit ioner which was registered as Misc. Case No. 223/2005 in Title Suit No. 353/2004 . 24. 2013. 25. 26. Petitioner shall appear before the learned Court below on 29.07. Office to send down the case record immediately. Petition is disposed of.