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2012 DIGILAW 22 (KER)

Baisil Attipetty @ Basil A. G. v. State of Kerala

2012-01-05

S.S.SATHEESACHANDRAN

body2012
Judgment 1. Plaint presented by the petitioner seeking a declaration and other reliefs with respect to disputes connected with the Mullapperiyar Dam was returned by the District Court Ernakulam, before which it was filed, for presentation before the civil court having territorial and pecuniary jurisdiction over the subject matter. Returning of the plaint as indicated is sought to be assailed by fling this original petition before this Court. The Registry has raised the objection that the order sought to be assailed is appealable as it could be challenged under Order XLIII Rule 1 (a) of the Code of Civil Procedure, for short, the ‘Code’. Taking exception to the objection, the petitioner has sought to present his submission before the court, and, accordingly, the petition has come up for consideration. 2. Petitioner has appeared as party in person. Relying on Baisil Attipetty V. M.V. Jayarajan and Others (2010 (3) KHC 431 (DB)) petitioner contends that the petition first of all requires to be numbered and then a decision has to be taken on the judicial side as regards its entertainability. Reliance is also placed on the observations made in paragraph 15 in the decision rendered by the Apex Court in Karnti Associates Private Limited and Another v. Masood Ahmed Khan and Others ((2010) 9 SCC 496) that there must be a speaking order on the judicial side after numbering of the petition and receiving it on the file of the court. I am not impressed by the submission made by the counsel. The observation made by this Court in paragraph 7 of Baisil Attipetty’s case, referred to above, and relied by the petitioner, are only to the effect that a writ petition could not be rejected without being numbered for the reason the reliefs sought for in the writ petition are vague and imprecise. Even such a writ petition required to be numbered and a judicial decision has to be taken thereof was the further view expressed by this Court. The observations so made no way assists the petitioner where the entertainablity of the original petition before this Court is forestalled as a challenge to the order imputed in the petition is available to him by recourse to an appeal as provided by a Statute. Similarly, reliance placed on Kranti Associate’s case, referred to above is also misplaced. The observations so made no way assists the petitioner where the entertainablity of the original petition before this Court is forestalled as a challenge to the order imputed in the petition is available to him by recourse to an appeal as provided by a Statute. Similarly, reliance placed on Kranti Associate’s case, referred to above is also misplaced. What has been stated by the Apex Court is only that where an order is passed by the quasi-judicial authority or even an administrative authority affecting the rights of the parties, a speaking order has to be passed. By passing an order returning the plaint presented by the petitioner, the court before which it was presented has not adjudicated any right of the petitioner, and even if that be so, as against the order directing returning of the plaint he has a right of appeal as provided under Order XLIII Rule 1 (a) of the Code as pointed out by the Registry. A right of appeal is available to the petitioner by recourse to the Rule as aforesaid is not impeached. The petitioner has relied on the aforesaid decisions submitting that when an order is passed the court for returning the plaint, before which it was presented, a speaking order pointing out the court to which the plaint has to be presented should have been passed. It is only in a case where Rule 10A of Order VII of the Code applies, that is in a case where the defendant has appeared and the court is of the opinion the plaint should be returned, before passing of such an order, extending an opportunity to the plaintiff to make an application to specify the court to which it has to be re-presented emerges for consideration. Even in such a case the court before whom the plaint was presented while ordering the return of the plaint is not deciding the court before which it is to be represented, but if a request thereof comes from the plaintiff after being extended an opportunity to present an application thereof makes an order specifying the court to which the plaint is to be presented with or without fixing time limit to do so. More than that, the provision covered by Rule 10A of Order VII of the Code, as already indicated, comes into application only in a case where after the presentation of the plaint the defendants has entered appearance and the court forms opinion that the plaint has to be returned. The order passed in the present case returning the plaint strictly falls under Rule 10 of Order VII of the Code, and in such a case, not even providing an opportunity to the plaintiff to make an application specifying the court to which the plaint is proposed to be presented arise for consideration. Further more, it has to be pointed out that it is only as against an order passed under Rule 10 of Order VII of the code, as in the present case, a right of appeal as under Order Order XLIII Rule 1 (a) of the Code is available to the plaintiff on returning of the plaint. Objections raised by the Registry are sustained.