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2013 DIGILAW 1016 (RAJ)

Anil Kumar Soni v. Deep Chand

2013-05-16

VINEET KOTHARI

body2013
JUDGMENT 1. - By this writ petition the petitioner-plaintiff Anil Kumar has challenged the order dated 20.3.2013 passed by the learned Civil Judge (JD) Sardarshahar in Civil Suit No. 231/2013, Anil Kumar v. Deep Chand & Ors ., whereby the learned trial Court returned the plaint in a suit for injunction filed by the plaintiff tinder Order 7, Rule 10 C.P.C., holding that the said Court did not have the pecuniary jurisdiction, nor the Court fee was adequately filed in view of valuation of the property mentioned in the plaint itself. 2. The said order was passed on an application filed by the defendants under Section 6 read with Order 7, Rule 11 of the C.P.C., a copy of which is placed on records as Annex. 3. 3. The learned counsel, for the petitioner, Mr. Chaitanya Gehlot, submitted that the learned trial Court could not have passed the impugned order which is essentially an order under Order 7, Rule 10 of the C.P.C. returning the plaint since not only the title of the application filed by the defendants was under Order 7, Rule 11 C.P.C. read with Section 6 of the C.P.C., but the defendants have also prayed for the dismissal of the suit and therefore, the impugned order is not sustainable. 4. On the other hand, the learned counsel for the respondent Mr. Anand Purohit, Sr: Advocate assisted by Mr. Deelip Kawad a submitted that the title of the application is not relevant and the objections raised in the said application filed by them on 18.3.2013 was to this effect only that since in the present suit itself, as per own saying of the plaintiff, the valuation of the suit property was very high, running into lacs and crores of rupees and the plaintiff claimed injunction against the defendants claiming that he was given a contract to raise the construction on this site and on account of certain disputes between the parties, he claimed that he was a partner with the defendants and therefore, he claimed certain injunction in the present suit against the defendants on account of such disputes. They submitted that on the objections raised by the defendants, even for dismissal of the suit under Order 7, Rule 11 C.P.C., even if the learned trial Court has come to the conclusion that on account of inadequacy of the Court fee paid by the plaintiff and the learned trial Court of Civil Judge (JD), Sardarshahar did not have the pecuniary jurisdiction to try the said suit, the said trial Court was perfectly justified in returning the plaint for proper presentation under Order 7, Rule 10 of the C.P.C., which order, beyond doubt, is appealable under Order 43, Rule 1 (a) of the C.P.C. 5. They submitted that in view of alternative remedy of appeal available to the petitioner against the impugned order dated . 20.3.2013 of trial Court, the plaintiff is not entitled to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. They relied upon the decision of this Court in the case of M/s. Ishwar Textile v. Jaipur Golden & Anr. reported in 1996 DNJ (Raj.) 181 , in support of this contention. They also submitted that in view of pendency of present writ petition and at interim order granted by a co-ordinate bench of this Court on 1.4.2013, while issuing the notices to the respondents that "in the meanwhile, the trial Court is restrained from returning the plaint to the petitioner in pursuant to the order impugned dated 20.3.2013", the petitioner plaintiff Anil Kumar filed another writ petition before this Court being S.B. C.W.P. No. 4143/2013, Anil Kumar v. Deep Chand & Ors ., which was disposed of ex parte the respondent vide order dated 22.4.2013 without giving an opportunity of hearing to the respondents by a co-ordinate bench of this Court holding that so long the present writ petition is pending, the trial will be deemed to continue and the ad interim temporary injunction granted in favour of the plaintiff was continued by this Court. The operative portion of the order dated 22.4.2013 passed by the bench is quoted below: "After hearing learned counsel for the petitioner, it emerges from the facts that order dated 20.3.2013 passed by the Civil judge (JD), Sardarsahar, Churu to return the suit to file before the suit the competent Court was stayed by this Court. Therefore, obviously the suit filed by the petitioner is required to be treated pending in the trial Court. Therefore, obviously the suit filed by the petitioner is required to be treated pending in the trial Court. In the suit, the petitioner filed an application for extension of interim order but the trial Court rejected the said application on the ground that the matter is sub-judice before this Court. In the opinion of this Court, once the order dated 20.3.2013 is stayed by this Court in the earlier writ petition then obviously whatever stage was in existence on 20.3.2013 is to be restored by the trial Court but it has not been done by the trial Court. In view of above, this writ petition is disposed of with the direction that till decision of S.B. Civil Writ Petition No. 3160/2013, the interim order granted by the trial Court shall remain in force." 6. The learned counsel for the respondents Mr. Purohit, therefore, urged that the present writ petition is not maintainable in view of alternative remedy of appeal available to the petitioner-plaintiff under Order 43, Rule 1 C.P.C. and the present writ petition of the plaintiff deservers to be dismissed. 7. Having heard the learned counsels for the parties, this Court is of the opinion that the contention of the learned counsel for the petitioner-plaintiff, Mr. Chaitanya Gehlot that in view of application filed by the defendants being under Section 6 read with Order 7, Rule 11 C.P.C., the impugned order could not have been passed by the learned trial Court under Order 7, Rule 10 of the C.P.C. returning the plaint, has little force. It is well settled that title of the application does not decide the fate and contents of the application itself. The objections raised in the said application are for dismissal of the suit on the ground that since in the own showing of the plaintiff, the matter is beyond the pecuniary jurisdiction of the learned trial Court of Civil Judge (JD) Sardarshahar, therefore, the suit was not maintainable there and deserves to be rejected. The objections raised in the said application are for dismissal of the suit on the ground that since in the own showing of the plaintiff, the matter is beyond the pecuniary jurisdiction of the learned trial Court of Civil Judge (JD) Sardarshahar, therefore, the suit was not maintainable there and deserves to be rejected. Even if the learned trial Court returned the plaint invoking the Order 7, Rule 10 of the C.P.C., with a direction to the plaintiff to present the same in proper Court with adequate Court fee, it cannot be said that the order is not under Order 7, Rule 10 of the C.P.C. Therefore, for all purposes, the impugned order will be construed to be made under Order 7, Rule 10 of the C.P.C. 8. As far as remedy by way of appeal being available to the petitioner-plaintiff under Order 43, Rule 1 of the C.P.C. is concerned, the learned counsel for the petitioner-plaintiff Mr. Chaitanya Gehlot does not fairly dispute this legal position that against the order passed under Order 7, Rule 10 of the C.P.C., the appeal is provided under Order 43, Rule 1 (a) of the C.P.C. 9. Therefore, in view of aforesaid, the present writ petition under Article 227 of the Constitution of India cannot be maintained. 10. Accordingly, the present writ petition is dismissed with a liberty to the petitioner plaintiff to file an appeal against the impugned order of the learned trial Court. No order as to costs. A copy of this order be sent to the parties concerned and the learned trial Court below forthwith.Petition Dismissed. *******