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2013 DIGILAW 1442 (RAJ)

Deep Chand v. Anil Kumar others

2013-08-21

VINEET KOTHARI

body2013
JUDGMENT 1. - The defendants have challenged the order dated 12.7.2013 passed by the learned Dist. judge, Churu setting aside the order of the learned Trial Court dated 20.3.2013 by which the learned Trial Court had decided that he did not have pecuniary jurisdiction in the matter. The learned Dist. judge, Churu has set aside that order and has restored the trial back to the learned civil judge. 2. The present suit even at the beginning of the trial has chequered history and earlier also this Court decided the writ petition between the parties on 16.5.2013, namely, SBCWP No. 3160/2013, Anil Kumar v. Deep Chand & Ors. by following order: "6. 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 (j.D.), Sardar Shahar, 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. 7. 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 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. 8. Therefore, in view of aforesaid, the present writ petition under Article 227 of the Constitution of India cannot be maintained. 9. Accordingly, the present writ petition is dismissed with a liberty to the petitioner 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." 3. Thereafter again the defendants filed writ petition, namely, SBCWP No. 7066/2011, Deep Chand & Ors. v. Anil Kumar & Ors. which came to be disposed of by a coordinate bench of this Court on 5.7.2013 with the following observations: "In view of the above, the present writ petition is disposed of with a direction to the learned District Judge. Churu to decide the Appeal No. 9/2013 pending before it on or before 12.7.2013. However, it is made clear that the learned Appellate Court will decide the appeal strictly in accordance with law without being influenced by the orders passed by this Court in SBCWP No. 3160/2013 and SBCWP No. 4143/2013. Both the parties shall remain present before the Appellate Court on the date of hearing and the Appellate Court will not grant any adjournment to any of the parties except for just reasons. In view of the above discussions, this writ petition is disposed of. Sd/- (Vijay Bishnoi), J." 4. In pursuance of this Court's previous order dated 16.5.2013, the appeal under Order 43, Rule 1 came to be decided by the learned Dist. In view of the above discussions, this writ petition is disposed of. Sd/- (Vijay Bishnoi), J." 4. In pursuance of this Court's previous order dated 16.5.2013, the appeal under Order 43, Rule 1 came to be decided by the learned Dist. Judge by impugned order dated 12.7.2013 with the following directions: mDr oS/kkfud ,oa U;k;laxr fLFkfr dk ekxZn'kZu tc Li"V gS rks bl ekeys esa v/khuLFk U;k;ky; dk ekfy;r de nsuk] U;k; 'kqYd de vkaduk vFkkZr fdruh ekfy;r gksuh pkfg, Fkh vkSj fdruk U;k; 'kqYd gksuk pkfg, Fkk] bldk Li"V fooj.k nsrs gq, bldh ikyuk] iwfrZ dk le; fn;s tkus ds ckn vU;Fkk vkns'k dh fLFkfr mRiUu gksrh] Qyr% ;fn ,slk fd;k x;k gksrk rks bruk fookn ,oa iSfpnfx;ka mRiUu gksus dh fLFkfr ugha gksrhA U;k; fu.kZ; 2009 ( 1 ) lhlhlh 744 ds vuqlkj tc ekuuh; loksZPp U;k;ky; dk ewy ekxZn'kZu ;gka rd gS fd nhokuh U;k;ky; dks lHkh izd'fr ds ekeys lquus dk vf/kdkjh gS] tc rd dh izR;{k ;k ijks{k esa oS/kkfud izko/kku ds vUrxZr fdlh izdkj dh viotZuk ugha gksA ;gka Hkh bl ekeys esa oS/kkfud dh rduhdh ;k fof/kd ck/kk izR;FkhZ i{k ds vuqlkj crkbZ tk; rks Hkh mldk funku xq.knks"k ds vk/kkj ij gh fd;k tkuk gksxkA ewy fl)kUr ds i{kdkjku dk fof/kd vf/kdkj ,oa vuqrks"k rduhdh igyqvksa ij r; ugha fd;k tkuk pkfg,] cfYd leqfpr volj nsrs gq, lkjHkwr xq.knks"k ij gh ekeys dk fofu'p; fd;s tkus dh vko';drk gSA izLrqr uthjksa ,oa ekxZn'kZu dh iqujkorhZ ugha djrs gq, crkSj fu"d"kZ ;g vihy Lohdkj ;ksX; gksus ls vihy Lohdkj dh tkrh gSA vkykSP; vkns'k fnukad 20-3-2013 vikLr fd;k tkrk gSA ewy nkok o vLFkkbZ fu"ks/kkKk blh uacj v/khuLFk U;k;ky; ds ewy nk;jk uacj ij ntZ dj cgky djrs gq, fof/k vuqlkj vfxze dk;Zokgh fd;s tkus ds vkns'k fn;k tkrk gSA fu.kZ; dh lR;izfr ds lkFk fo}ku v/khuLFk U;k;ky; dk vfHkys[k 'kh?kz ykSVk;k tkosA Sd/- ftyk U;k;k/kh'k pq: ( jkt0 ) 5. The defendants have again approached this Court aggrieved by the said order of the learned District Judge, Churu. 6. Having heard the learned Counsel for the parties and in view of facts and circumstances of the case, this Court is of the opinion that the trial of the suit in the present circumstances ought to be assigned to the Additional Dist. Judge instead of learned Civil Judge. The learned Dist. 6. Having heard the learned Counsel for the parties and in view of facts and circumstances of the case, this Court is of the opinion that the trial of the suit in the present circumstances ought to be assigned to the Additional Dist. Judge instead of learned Civil Judge. The learned Dist. Judge, Churu is accordingly requested to assign the trial of the said suit between the parties to the appropriate Court of learned Additional Dist. Judge to try the suit. The said Court to which the trial is assigned will be free to proceed in accordance with law after the written statement is filed and framing of the issues including the preliminary issues in question of jurisdiction and Court fee etc. as may arise from the pleadings of the parties and decide the same in priority. 7. Accordingly this writ petition is disposed of with the aforesaid observations. A copy of this order be sent to the parties concerned and the learned Courts below forthwith.Petition disposed of. *******