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2013 DIGILAW 790 (HP)

Vijay Arora v. Ripu Daman Bhandari

2013-09-03

V.K.SHARMA

body2013
JUDGMENT V.K. Sharma, J. (Oral). OMP No.4025 of 2013 Rejoinder stands filed. 2. Heard. The defendant has moved the present application under Order 7, Rule 11(d) read with Order 23, Rule 1(4) (a) & (b) of the Code of Civil Procedure, 1908 (in short, ‘CPC’), with a prayer for rejection of the plaint. Before moving the present application, the defendant had also sought rejection of the plaint by filing an application under Order 23, Rule 1(4) CPC, which was later on withdrawn, as the provision under Order 7, Rule 11(d) CPC was not pressed into service in that application. Accordingly, the present application has been filed.Facts necessary for disposal of the application, are that the plaintiff is seeking specific performance of the agreement of sale dated 20.05.2009, said to have been executed in his favour by the defendant. 3.The suit is valued for the purposes of court fee and jurisdiction at 217,50,000/-. The record reveals that the suit was initially filed in the Court of the learned District Judge, Kangra at Dharamshala. Indisputably, as per the provisions of the H.P. Courts Act, as the same stand as on today and even at the time of filing of the suit in the District Court at Dharamshala, pecuniary jurisdiction of the court of District Judge was up to 215,00,000/-. Thus, the suit on the face of it, was beyond the pecuniary jurisdiction of the District Court. It was in such circumstances that the learned counsel for the plaintiff in the District Court made a statement that he had been instructed by the plaintiff to withdraw the suit and accordingly the suit was withdrawn vide order dated 12.10.2011, but without seeking permission to file a fresh suit in the Court of competent jurisdiction. 4. Against the foregoing background, the defendant seeks rejection of the plaint on the ground that as the plaintiff had not sought permission to institute a fresh suit, he is precluded from filing the present suit. 4. Against the foregoing background, the defendant seeks rejection of the plaint on the ground that as the plaintiff had not sought permission to institute a fresh suit, he is precluded from filing the present suit. 5.On the other hand, the learned counsel for the plaintiff submits that the District Court at Dharamshala was not vested with pecuniary jurisdiction to entertain, try and dispose of the suit and as such neither it can be said to be the “Court” within the ambit of Order 23 CPC and for the same reason, the suit before that Court could also not be said to be a properly constituted suit and as such the embargo under sub rule (4) of Rule 23 CPC is not attracted in the facts and circumstances of the present case. In support of his submission, the learned counsel for the plaintiff has relied upon the ratio laid down by the Honeble Supreme Court in Amar Chand Inani vs. Union of India, AIR 1973 Supreme Court 313, head note B (para 8) and the Hongble Madras High Court in M/s Buhari Trading Co. vs. Star Metal Co., AIR 1983 Madras 150, head note A (para 5). 6. I have considered the rival submissions. In the given circumstances, the plaintiff or his learned counsel would have been well advised to have made a prayer to the Court of the learned District Judge to return the plaint for presentation before the Court of competent jurisdiction and thereafter file the suit in this Court. However, it was not done. Even despite that the fact remains that as the District Court at Dharamshala was not vested with pecuniary jurisdiction in the matter, it was incumbent upon its office in the first instance to have not entertained the plaint, which on the face of it, was beyond the pecuniary jurisdiction of the said Court and if at all the office failed to notice this fact, the learned District Judge was expected to return the plaint to the plaintiff suo moto for presentation before the Court of competent jurisdiction. However, since it was also not done, a litigant cannot be made to suffer for any error on the part of the Court, as is the basic principle of law, which needs no emphasis. However, since it was also not done, a litigant cannot be made to suffer for any error on the part of the Court, as is the basic principle of law, which needs no emphasis. Furthermore, as already noticed, the Court of the District Judge was not the “Court” in the strict sense of the term, as far as the present case was concerned, the suit before it could also not said to be a properly constituted suit to attract the embargo under sub rule (4) of Rule 23 CPC. In these observations of mine, I seek support from the ratio laid down by the Honible Supreme Court and the High Court of Madras in the aforesaid judgments relied upon on behalf of the plaintiff. 7. For the reasons stated hereinabove, the prayer of the defendant for rejection of the plaint is disallowed. The application is accordingly dismissed.