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2010 DIGILAW 160 (MP)

Durgesh Chaurasiya v. Prakash Kushwah

2010-02-08

INDRANI DATTA, S.K.GANGELE

body2010
ORDER Indrani Datta, J. 1. Petitioner/plaintiff has preferred this petition under Article 227 of the Constitution of India challenging the order (Annexure P-l) dated 11-9-09 passed by 14th ADJ, Gwalior in M.A. No. 12/09 and order (Annexure P-2) passed by 10th Civil Judge Class-I, Gwalior in Civil Suit No. 2-A/09, dated 10-7-09 rejecting the application filed by petitioner/plaintiff under Section 151, CPC for referring to case to District Judge for transfer to the Competent Court and instead passing order to return to plaint under Order 7 Rule 10, CPC. 2. Facts of the case in brief are that petitioner/plaintiff has filed a suit for declaration and permanent injunction against respondent/defendant No. 1. After trial of suit it was found by Trial Court that petitioner/plaintiff is owner of the suit but because he has not prayed for relief of possession suit was dismissed. Against the order of dismissal first appeal was filed by petitioner/plaintiff with an application under Order 6 Rule 17, CPC which was allowed by First Appellate Court and order of remand was passed. As per that order of remand petitioner/ plaintiff valued the land for purpose of possession. Learned Trial Court was not having pecuniary jurisdiction after revaluation. Hence, petitioner/plaintiff has filed an application under Section 151, CPC for referring the matter to District Judge for transfer of the case to Appropriate Court and that application was rejected. Against that order Writ Petition No. 3229/09 was filed which was dismissed on the ground that order passed under Order 7 Rule 10, CPC is appealable under Order 43 Rule 1 (a) of CPC. Petitioner/plaintiff then preferred one appeal against order passed by 10th Civil Judge Class I, Gwalior in Civil Suit No. 2-A/09 that Misc. Appeal No. 12/09 was dismissed. Resultantly, this petition is preferred. 3. It is contended by learned Counsel on behalf of the petitioner/ plaintiff that order passed by 10th Civil Judge Class I, Gwalior in Civil Suit No. 2-A/09 and order passed by 14th ADJ, Gwalior in Misc. Appeal No. 12/09 confirming the order passed by Civil Judge is to be set aside. As the order is against provision of Section 15 (3) of the M.P. Civil Courts Act, 1958. Appeal No. 12/09 confirming the order passed by Civil Judge is to be set aside. As the order is against provision of Section 15 (3) of the M.P. Civil Courts Act, 1958. It is contended that case of Krishna Kumar Khandelwal v. Mangal Prasad 2006 (4) M.P.H.T. 167 (DB) : 2007 (1) JLJ 300 , is distinguishable relying on which learned Trial Court has returned the plaint under Order 7 Rule 10, CPC to petitioner/plaintiff as in the present case situation is altogether different. It is submitted that in the present case the evidence of both the parties is closed and trial is over only arguments are to be heard and final decision is to be rendered. If the plaint is returned to petitioner/plaintiff then it will result in a fresh trial ab initio. Hence prayed to set aside the order passed by both the Courts below and for issuing a proper direction to Trial Court to refer the matter to District Judge for passing appropriate order under Section 15 (3) of M.P. Civil Courts Act. 4. Learned Counsel for respondent/defendant opposed the application and submitted that order passed by Courts below requires no interference. 5. Section 15 (3), M.P. Civil Courts Act reads as follows: Whenever it appears to any Court, as is referred to Sub-section (2) that institution of any suit, appeal or proceeding, pending before it, was not in conformity with the order of distribution of business made under Sub-section (1), it shall submit the record of such suit, appeal or proceeding, as the case may be, to the District Judge for appropriate orders, and the District Judge in relation thereto may pass orders either transferring the concerned record to Proper Court as per order of distribution of business or otherwise to any other Court of competent jurisdiction. 6. It is admitted fact that both the parties have laid their evidence and trial is over only final arguments are to be heard and final decision is to be rendered. 6. It is admitted fact that both the parties have laid their evidence and trial is over only final arguments are to be heard and final decision is to be rendered. Considering the facts and circumstance of the case, this petition is allowed and order passed by 10th Civil Judge Class I, Gwalior passed in Civil Suit No. 2-A/09 and order passed by 14th ADJ, Gwalior in M.A. No. 12/09, dated 10-7-09 and 11-9-09 are set aside and 10th Civil Judge, Class I, Gwalior is directed to refer the matter to District Judge to pass appropriate order under Section 15 (3) of M.P. Civil Courts Act. A copy of this order be sent to the Court concerned.