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2012 DIGILAW 121 (ORI)

Banaja Jena v. Gouranga Charan Biswal

2012-03-03

M.M.DAS

body2012
ORDER Heard Mr. P.K. Singh, learned counsel for the appellants. This appeal has been preferred against the order dated 9.12.2011 passed in C.S. No. 879 of 2011 by the learned Civil Judge (Sr. Division), Bhubaneswar directing return of the plaint to the appellants. The appellants as plaintiffs filed the above suit with the following prayer: "In the interest of justice and for the reasons stated above, it is therefore prayed that (I) the ex parte decree dated 16.2.1999 passed in original title suit No.318 of 1997 may kindly be set aside. (II) The plaintiffs be awarded the costs of the suit and such other relief/reliefs as in the circumstances be deemed just and proper." The learned Trial Court in the impugned order has found that the appellants were not parties-in the suit previously filed, being T.S. No.318/1997, the ex parte decree of which is sought to be set aside by the appellants in the present suit without a prayer for declaration. A Court is authorised to return the plaint filed before it as per provision under Order 7, Rule 10, C.P.C. which is quoted hereunder:- "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.] (2) Procedure on returning plaint - 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." Dealing with the question as to what is the duty of a Court when it finds that it has no jurisdiction over the subject matter of the suit, the Supreme Court in the case of Athmanath Devasthanam vs. K. Gopalaswami Ayyangar, AIR 1965 SC 338 held that when the Court has no jurisdiction over the subject matter of the suit, it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint. It is a well settled proposition of law that a Court if finds that it lacks either territorial jurisdiction over the subject mater of the suit or pecuniary jurisdiction to try the suit, the only course open to the Court is to exercise power under Order 7, Rule 10, C.P.C, and return the plaint in accordance with the said Rule. In the case of M/s. Orissa Agro Industries Corporation Ltd. vs. M/s K.C.S. Private Ltd. and M/s Orissa Agro Industries Corporation Ltd. Vs. M/s P.K. Rout, A partnership Firm, 2003 (Supp.) OLR 675 this Court laid down that by mere disposal of an application under Rule 10, Order 7 practically a suit is not disposed of but the plaint is returned to be presented in a Court having jurisdiction. A reading of the impugned order in the present case clearly shows that while returning the plaint, the Trial Court has disgressed its jurisdiction as vested in it under Order-7, Rule-10, C.P.C. by entering into the merits of the suit and making various observations with regard to the same, which it was not authorized to do under Order-7, Rule-10, C.P.C. The impugned order, therefore, is set aside. As Mr. P.K. Singh, learned counsel submits that after passing of the impugned order the plaint has not yet been returned to the plaintiffs, which still lying with the learned Civil Judge (Sr. Division), Bhubaneswar. The learned Civil Judge (Sr. Division), Bhubaneswar is, therefore, directed to admit the suit if the subject matter of the suit comes within his territorial jurisdiction. Question of pecuniary jurisdiction in this case does not .arise as the pecuniary jurisdiction of a Civil Judge (Sr. Division) is unlimited, except in suits for recovery of money covered under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the present suit is not one of such nature. The FAO was taken up for final hearing and disposed of as the impugned order was passed before admission of the suit for which no notice was required to be issued to the respondents. The FAO is accordingly allowed as above. Urgent certified copy of this order be granted on proper application. FAO allowed.