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2000 DIGILAW 147 (JK)

Ab. Ahad Rather v. Ircon International Ltd.

2000-07-26

G.D.SHARMA

body2000
1. This revision petition is directed against the order dated: 20-5-2000 passed by the Learned Addl. District Judge, Srinagar in appeal No. 5/2000 filed by the petitioner herein again the order dated: 21-4-2000 passed by the Learned City Judge, Srinagar. The Learned City Judge had returned the plaint of the petitioner herein under Order 7 Rule 10 CPC for presenting the same in the court which has the pecuniary jurisdiction. The order was challenged in appeal wherein the learned appellate court held that the trial court lacked the territorial jurisdiction to try the suit and on that count while dismissing the appeal upheld the order of the trial court. 2. The order has been challenged on the ground that the appellate court (Additional District Judge) exceeded his jurisdiction by going beyond the impugned order which had not dealt with the territorial aspect of the case. The finding is based on the basis of no record and perverse in the eye of law. Heard the arguments. 3. The counsel appearing for the petitioner has contended that the Ld. Trial Judge vide his order dated: 21-4-2000 returned the plaint to the petitioner because he had no pecuniary jurisdiction to hear a dispute which involved a cost of Rs. 19.50 crores. There was no finding that it lacked territorial jurisdiction. The appellate court on its own gave a finding that the trial court lacked the territorial jurisdiction, therefore, such a finding in the appeal is perverse in law. 4. In rebuttal it has been contended that the trial court lacked pecuniary as well as territorial jurisdiction in the matter. The earth works in question which are to be given on contract are in Kakapora and Nowgam villages which are situated within the territorial limits of District Pulwama and Budgam respectively. The defendants undoubtedly reside in Delhi. The value of these contracts extends to Rs. 19.50 crores and public element is involved for the speedy execution of these works. The petitioner who is an unsuccessful tenderer has unnecessarily resorted to litigation and is interested in getting the works delayed. 5. The arguments advanced have been considered. From the perusal of the impugned order it is revealed that the counsel of the petitioner in his arguments before the appellate court had admitted that the allotment of the contracts in question pertains to Kakapora and Nowgam earth works. 5. The arguments advanced have been considered. From the perusal of the impugned order it is revealed that the counsel of the petitioner in his arguments before the appellate court had admitted that the allotment of the contracts in question pertains to Kakapora and Nowgam earth works. Judicial notice was taken by the appellate court of this fact and found itself armed with law laid down under order 7 Rule 10 CPC to order the return of the plaint for presentation to the court hi which suit should have been instituted. Under Order 7 Rule 10 CPC a court of law in appeal or revision has the requisite power to return the plaint. 6. Counsel for the petitioner cited the case of Nilima Bose Vs. Santosh Kumar Ghos (AIR 1997 Cal. 202), Learned Single Judge of Calcutta Court in this case has held as under: Admittedly in the instant case the respondent filed an application for framing an issue regarding maintainability of the suit on the ground of jurisdiction and in course of disposal of the said petition learned Munsiff found that as he has no pecuniary jurisdiction he directed return of the plaint. Jurisdictional ground may be of diverse nature, including pecuniary and territorial. Every court, while entertaining any suit or appeal has the duty to examine whether it has the pecuniary or territorial jurisdiction to entertain such matters and to enable the courts to return the plaint, after the same has been wrongly entertained, that the provision of Order (vii), Rule 10 of the CPC is made to pass such order at every point of time. It is therefore clear that if at any time it is apparent to the court on the averment in the plaint itself that it has no jurisdiction, either pecuniary or territorial, to entertain the matter the court can always direct return of the plaint under the provisions of Order 7 Rule 10 of the Code of Civil Procedure and no preliminary issue under Order 14 Rule 2 needs to be framed for that purpose. Since the court always retains its jurisdiction to examine the plaint as it is framed for the purpose of examining its jurisdiction prima facie that court is entitled to pass an order for return of the plaint under Order 7 Rule 1 of the Code of Civil Procedure. Since the court always retains its jurisdiction to examine the plaint as it is framed for the purpose of examining its jurisdiction prima facie that court is entitled to pass an order for return of the plaint under Order 7 Rule 1 of the Code of Civil Procedure. It should be remembered in this connection that no court can blindly accept any plaint without prima-facie satisfaction of its jurisdiction to entertain the matter and it is therefore no good saying that in every case the court is under an obligation to frame a preliminary issue for the purpose of such prima-facie satisfaction in the matter. That dispose of the first preliminary point raised by Mr. Banerjee in this matter.� 7. The argument advanced by the Ld. counsel of the petitioner that the appellate court gave the finding on territorial jurisdiction without framing any issue to that effect or without any finding thereon by the trial court is of no legal significance as every court has the power to determine whether suit or appeal is entertainable or not. This opinion is fortified from a bare perusal of the language of the Order 7 Rule 10 CPC which runs as under: Return of plaint. (1) Subject to the provisions of rule 10-A, 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. Procedure on returning plaint. (2) 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 explanation appended to sub-rule 1 is clear that a court of appeal or revision has also the power to return the plaint under this sub-rule. 8. Viewing the case in its totality it is held that neither the trial court nor the appellate court exercised the jurisdiction which was not vested in it under law. There is no illegality in the order which has caused the miscarriage of justice. In this view of the matter, no force is found in this revision petition which is accordingly dismissed. There is no illegality in the order which has caused the miscarriage of justice. In this view of the matter, no force is found in this revision petition which is accordingly dismissed. Office is directed to return the record of the appellate court.