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2005 DIGILAW 575 (PNJ)

Shoban Lal & Co. v. L. R. Sharma

2005-05-10

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The legal question raised in the instant petition filed under Article 227 of the Constitution is whether the presentation of plaint to a proper Court after its return by the Court in which it was initially presented would be deemed to be a continuation of suit or it would be regarded as a fresh filing? 2. The facts in brief are required to be noticed. The petitioner-firm which is publisher of books filed a civil suit No. 4 of 2003 on 3.10.2003 in the Court of Civil Judge (Sr. Division), Jalandhar for permanent injunction and other cognate prayers. A similar suit was filed by the defendant-respondents in the Court of Civil Judge Sr. Division Panchkula. The Civil suit filed by the plaintiff-petitioner was returned under Order 7 Rule 11 of the Code of Civil Procedure, 1908 by the Civil Judge, Jalandhar on 6.10.2003. After the return of the plaint the civil suit was instituted in the Court of competent jurisdiction i.e. the District Judge, Jalandhar on 18.10.2003. It is also appropriate to mention that defendant-respondents withdrew the suit on 25.3.2003 and filed the same in the Court of competent jurisdiction on 27.3.2003 i.e. before the Addl. District Judge, Panchkula. It emerges from the fact that before the Court of competent jurisdiction of the District/Addl. Distt. Judge the suit by the plaintiff-petitioner was presented on 18.10.2003 and by the defendant-respondents on 27.03.2003. 3. An application under Section 10 read with Section 151 of the Code by the defendant-respondent was filed before the Id. Addl. District Judge. Jalandhar for staying the proceedings in the suit on the ground that the matter in issue is, identical in both the suits and the proceedings in the suit filed by the plaintiff-petitioners are required to be stayed as the suit filed by them was later in point of time. The Id. Addl. District Judge, Jalandhar dismissed the application by upholding that the dates of institution of suits in the proper Court could only be the relevant consideration for deciding the application. In this regard, reliance has been placed on a judgment of the Supreme Court in the case of Amar Chand Inani v. Union of India, The operative part of the order passed by the learned Addl. Distt. Judge reads as under:- "I have gone through the authorities relied upon by the parties. In this regard, reliance has been placed on a judgment of the Supreme Court in the case of Amar Chand Inani v. Union of India, The operative part of the order passed by the learned Addl. Distt. Judge reads as under:- "I have gone through the authorities relied upon by the parties. The first authority relied upon by the learned counsel for the plaintiff Shri Ashok Pruthi Advocate in (1998-3)120 P.L.R. page 392 his Lordship has given the guideline that under what circumstances Section 10 of the C.P.C. is applicable. Further in A.I.R. 1973 page 313, the case titled as Amar Chand v. Union of India, the Hon ble Apex Court has settled that presentation of plaint in a proper court after return is not continuation of a suit as filed in wrong court so as to attract Section 4 of the Limitation Act, (1908). Further the Hon ble Apex Court has settled the law in a case Manohar Lal v. Rai Bahadur, that provisions of Section 10 are clear and definite and mandatory, Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is special provisions in the C.P.C. for dealing with the contingencies of two such suits being instituted re-course to the inherent powers under Section 151 C .P.C. is not justified. The previsions of Section 10 do not become inapplicable if a court holding that previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the Act. xx xx xx xx XX XX XX 15. From the perusal of the case and from the authority relied upon, I am of the considered opinion that defendant/applicant filed the suit at Panchkula with regard to the same relied and between the same parties in a competent court is earlier one, while the case in hand filed by M/s Shoban Lal is subsequent one. The law settled by the Hon ble Apex Court is very much clear that in case the suit is filed in a wrong court and on return of plaint further filing the suit in the competent court is not a continuity of the suit. No. 1. under Section 10 of the C.P.C. is allowed and the proceedings of this case are stayed. File be consigned." 4. I have heard Mr. No. 1. under Section 10 of the C.P.C. is allowed and the proceedings of this case are stayed. File be consigned." 4. I have heard Mr. Sudhir Pruthi, learned counsel for the plaintiff-petitioner who has attempted to argue that the date of filing the suit initially albeit before the wrong forum should be considered as relevant date and accordingly it has to be held that the suit filed by the plaintiff-petitioner was much prior in time to the one filed by the defendant-respondents in the Courts at Panchkula. According to the learned counsel there are judgments to the contrary on the issue. Learned counsel has further submitted that in any case Section 10 of the Code would not be applicable. 5. After hearing the learned counsel at some length, I have reached the conclusion that there is no merit in the instant petition. The question raised for determination has been squarely answered by the Supreme Court in Amar Chand Inanis case (supra). In that case after making reference to Section 4 of the Limitation Act, 1963 and to the judgment of the Privy Council in the case of Maqbul Ahmad v. Pratap Narain Singh, A.I.R. 1935 P.C. 85, the Supreme Court observed as under:- "If the plaintiff had filed the suit in the trial Court on March 2 , 1 985, then certainly the suit would have been within time under Section 4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the plaintiff would be entitled to take advantage of the provisions of Section 14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in Section 4 in the Karnal Court. Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence another civil proceedings against the defendant where the proceedings is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat Courts, the suit would not be within time as the filing of the suit in the Karnal Court was beyond the period of limitation. It was however argued by Counsel for the appellant that the suit instituted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in Karnal Court. We think there is no substance in the judgment, for when the pliant was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper court only when the plaint was presented in that Court. In other words, the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal, Court...." 6. Similar view has been expressed in a subsequent judgment in the case of Hanamanthappa and Anr. v. Chandrashekharappa and Ors. 7. The argument that Section 10 of the Code is not attracted would require no detailed consideration as it has been found by the learned Additional Distt. Judge that subject matter of two suits is similar. In that situation, the judgment of the Supreme Court in the case of Manohar Lal v. Raj Bahadur, would be squarely applicable. the suit of the plaintiff-petitioner filed in the proper court being subsequent in point of time than the one filed by the defendant-respondent has to be stayed. For the reasons stated above, this petition fails and the same is dismissed.