Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 387 (AP)

P. Chandrasekhar v. Vijaya Lakshmi

2009-06-19

GOPALA KRISHNA TAMADA

body2009
ORDER This Revision is directed against the orders dated 08-04-2004 in O.S.No.10 of 2003 passed by the learned Senior Civil Judge at Gadwal whereby, the suit was returned holding that the said Court has no jurisdiction and the same shall be presented before the appropriate Court. 2. The brief facts of the petition are that the petitioner herein instituted the said suit for recovery of money of Rs.3,51 ,333/on the foot of a promissory note. On notice, the respondents put in their appearance, engaged an Advocate and a detailed written statement was also filed. On the basis of the pleadings, the Court below settled the issues. However, during the course of trial, P.W.1 filed his chief examination affidavit wherein he has stated that the entire transaction took place at Karnataka only. On the strength of the said pleading, an additional issue was also framed regarding the territorial jurisdiction. While answering the said issue, in affirmative, the trial Court returned the plaint to the petitioner herein directing him to approach appropriate Court and present the same. As stated supra, the said order is under challenge by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 3. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents. 4. The main contention of the learned Counsel for the petitioner/plaintiff is that the petitioner is a resident of Raichur in Karnataka and the transaction also had taken place at Raichur. But the respondent defendant is resident of Gadwal in Mahaboobnagar District and hence, he approached the Court at Gadwal and filed the present suit for recovery of money on the foot of the promissory note. In this context, the learned Counsel for the petitioner has drawn my attention to Section 20 of C.P.C. and submitted that a suit can maintain either in the Courts at Gadwal or in the Courts at Raichur. As the respondent is residing at Gadwal, he has chosen the Court at Gadwal and the Court below ought not to have returned the plaint stating that the said Court has no jurisdiction. The other contention of the learned Counsel for the petitioner is that the Court below has not followed the procedure provided for under Order VII Rule 10A of C.P.C. i.e., issuance of notice to the petitioner before returning the plaint. 5. The other contention of the learned Counsel for the petitioner is that the Court below has not followed the procedure provided for under Order VII Rule 10A of C.P.C. i.e., issuance of notice to the petitioner before returning the plaint. 5. Per contra, Mr.Radhakrishna Reddy, the learned Counsel for the respondents opposed the said submission, stating that this Revision itself is not maintainable for the reason that the order passed by the Trial Court i.e., return of the plaint is appelable under Order XLIII of CPC and hence, he ought not to have invoked the jurisdiction of this Court under Article 227 of the Constitution of India. According to him, when once an issue is settled and both the parties were permitted to advance their arguments, the question of following the procedure provided for under Order VII Rule 10-A has no application and as the Court is thoroughly satisfied that the said Court has no jurisdiction, it only returned the plaint. 6. It is further contended by the learned counsel for the respondents that the said order was passed by the court below returning the plaint on 08-04-2004 whereas the petitioner approached this court and filed the present revision under Article 227 of the Constitution of India on 18.07.2008 i.e. after lapse of about four years and as such this revision is liable to be dismissed on the ground of laches. 7. In the light of the said controversy, this Court summoned the records from the trial Court. 8. Part I of C.P.C. deals with suits in general and Sections 15 to 20 deals with the places where the suit has to be instituted. According to Section 15 C.P.C, every suit shall be instituted in the Court of the lowest grade competent to try it. Section 16 C.P.C. deals with the suits to be instituted where the said matter is situated. Section 17 C.P.C. deals with the suits for immovable property situated within the jurisdiction of different Courts. Section 18 C.P.C. deals with the place of institution of suit where local limits of jurisdictional Courts are uncertain. Section 19 C.P.C. deals with suits for compensation for wrong done to person or movables. Section 17 C.P.C. deals with the suits for immovable property situated within the jurisdiction of different Courts. Section 18 C.P.C. deals with the place of institution of suit where local limits of jurisdictional Courts are uncertain. Section 19 C.P.C. deals with suits for compensation for wrong done to person or movables. If a suit does not fall in anyone of the categories, then, the suit shall be instituted as provided for under Section 20 of C.P.C. and Section 20 C.P.C which deals with other suits to be instituted where defendant resides or cause of action arises is as follows: "(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises". 9. As stated supra, the plaintiff i.e., the petitioner herein is the resident of Raichur in Karnataka and the payment of money also admittedly has taken place at Raichur in Karnataka. But the fact is that the respondent/defendant is a resident of Gadwal in Mahaboobnagar District. 10. Here is a case for recovery of money on the foot of a promissory note and hence, Sections 16 and 17 of C.P.C. have no application. Section 18 C.P.C. is to be invoked where the jurisdiction of the courts is uncertain and so far as the case on hand is concerned, it has no application. Similarly, Section 19 C.P.C. also cannot have any application for the reason that it deals with compensation for wrongs to persons or movables. Hence, the only provision, which according to me, is Section 20 of C.P.C. for the purpose of institution of the suit or for the purpose of jurisdiction. The said provision of law clearly emphasizes that the suit can be instituted even at the place where the defendant resides. Hence, the only provision, which according to me, is Section 20 of C.P.C. for the purpose of institution of the suit or for the purpose of jurisdiction. The said provision of law clearly emphasizes that the suit can be instituted even at the place where the defendant resides. Here is a case where the plaintiff, though is a resident of Raichur and the transaction i.e., payment of money had taken place at Raichur in Karnataka state, still, as the respondent herein is a permanent resident of Gadwal, the Courts at Gadwal can definitely be said to be having jurisdiction and hence, the very return of the plaint, in my considered view, is not correct. 11. No doubt, it is true as contended by the learned Counsel for the respondent that the order returning the plaint is appealable as provided for under Order XLIII Rule 1 (a). According to Order XLIII Rule 1 (a), an order under Order VII Rule 10 CPC, returning a plaint to be presented to the proper Court is appealable. If the said contention is accepted, in my considered view, the Revision has to be dismissed with a direction to the petitioner to approach the appellate Court. But the trial Court, while returning the said plaint, had not followed the procedure provided for under Order VII Rule 10A. 12. Order VII deals with plaint and according to Rule 10-A, the Court has to fix a date of appearance in the Court where plaint is to be filed after its return. According to sub-rule (1) of Rule 10-A, in any suit filed by the plaintiff, if the defendant has appeared and Court comes to the conclusion that the plaint should be returned, it shall before doing so, intimate its decision to the plaintiff. According to sub-rule (2) of the said provision of Law, where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application. Keeping the said provision of Law in mind, if I look at the case on hand, it is clear that the trial Court had given a go-by to the said procedure. Here, the suit was instituted, respondents have put in their appearance and also filed a detailed written statement. Keeping the said provision of Law in mind, if I look at the case on hand, it is clear that the trial Court had given a go-by to the said procedure. Here, the suit was instituted, respondents have put in their appearance and also filed a detailed written statement. On the basis of the pleadings, an issue was framed with regard to the territorial jurisdiction and without giving an opportunity to the plaintiff to advance any arguments, as to whether the suit instituted at Gadwal Court is having jurisdiction or not, simply on the basis of the arguments advanced by the respondent's Counsel came to the conclusion that the said suit is instituted in a wrong Court. From a perusal of the entire order, this Court is of the clear view that the Court below never directed the plaintiff to address on the aspect of territorial jurisdiction or about the maintainability of the suit at Gadwal Court. In Para NO.5 of the Judgment, it is mentioned that during the course of trial, P.W.1 filed his chief examination affidavit stating that the entire transaction took place at Karnataka only and on the basis of the same, an issue was settled with regard to the territorial jurisdiction to try the suit and the Court below answered it on its own without giving any opportunity to the plaintiff i.e., the petitioner herein. This is not what contemplated under Order VII Rule 10-A of CPC. As stated supra, when once the defendant puts in her appearance, takes a plea that the said Court has no jurisdiction and the Court after going through the pleadings and when C.1me to the conclusion that the said Court has no jurisdiction, it shall put the plaintiff on notice about its decision with regard to return of the plaint. Had the Court duly followed the said procedure, the petitioner/plaintiff would have been in a position to convince the Court below stating as to how the said Court has jurisdiction. What all the Court below said in the order dated 08-04-2004 is that the said Court has no jurisdiction to decide the matter and accordingly, returned the plaint with a direction to the plaintiff/petitioner herein to present the suit in a proper Court. What all the Court below said in the order dated 08-04-2004 is that the said Court has no jurisdiction to decide the matter and accordingly, returned the plaint with a direction to the plaintiff/petitioner herein to present the suit in a proper Court. Of course, the Court below discussed at length the relative provisions of law but it clearly misread the order VII Rule 10-A CPC and did not follow the said procedure provided for in the said provision of Law. 13. It is only when the Court below followed the procedure provided for under Order VII Rule 10-A, then, it can be said that the remedy to the plaintiff is to approach the appellate authority as provided for under Order XLIII Rule 1 (a) CPC. As the Court below had not followed the procedure, this Court is of the view that it is not proper to direct the petitioner again to approach the appellate authority for redressal. 14. The said order was passed on 08-04-2004 and this Revision is filed before this Court on 18-07-2008 i.e., after about four years and it can definitely be said that the petitioner had not approached this Court in time and laches can be attributed. The learned Counsel for the respondent, Mr.Radha Krishna Reddy, vehemently contended that on account of the said laches, the Court, even if comes to the conclusion that the said order passed by the trial Court is bad in law, shall not interfere with the said order and in this context, the learned Counsel has drawn the attention of the Judgment of the Apex Court reported in Naib Subedar Lachhman Dass v. Union of India and others AIR 1977 SC 1979 and he also has drawn my attention to my own Judgment in B. Harikishan Rao v. A. Venkatesham 2007 (2) AL T 616 and also another Judgment of this Court reported in T. Venkatacharya and another v. Deputy Commissioner of Endowments, Warangal and others 2007 (3) ALT 622 . The facts and circumstances in those cases are different and in my considered view each case has to be decided on its own merits. Here is a case where the petitioner has come forward and instituted the said suit on the foot of a promissory note for recovery of an amount of Rs.3,51 ,333/-. The facts and circumstances in those cases are different and in my considered view each case has to be decided on its own merits. Here is a case where the petitioner has come forward and instituted the said suit on the foot of a promissory note for recovery of an amount of Rs.3,51 ,333/-. May be true that he approached this Court and knocked at the doors at a late hour after about four years and definitely, it can be said that there are laches on his part. But on that score, this Court does not want to foreclose his right to establish that the said promissory note was executed by the husband of the respondent defendant. Further, the petitioner has come forward with a defence that he suffered a heart ailment and as such, he was hospitalized and he could not contact his advocate in time. As this Court is very much convinced that the very return of the plaint is bad in law and the Court below had not followed the procedure provided for under Order VII Rule 10A and substantive rights are involved, this Court takes a lenient view in so far as the laches are concerned. But at the same time, the said laches shall not automatically be condoned without penalizing the petitioner. 15. Accordingly, this Court, while exercising its supervisory jurisdiction under: Article 227 of the Constitution of India, passed the following orders: (i) The order dated 08-04-2004 in O.S.No.10 of 2003 passed by the learned Senior Civil Judge at Gadwal is hereby set aside, (ii) The Court below is hereby directed to restore the said suit and proceed with the same in accordance with law, (iii) As there are laches on the part of the petitioner in approaching this Court after about four years, the petitioner is hereby directed to pay costs of Rs.25,000/- (Rupees twenty five thousand only) to the respondents/defendants within a period of six weeks. (iv) And on asserting the fact that the costs are paid, the Court below may take up the suit for trial. (v) It is needless to observe that the respondents are at liberty to raise all tenable points that are available to her in the Court below and cooperate with the trial for early disposal of the suit. 16. Accordingly, this Revision is allowed.