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2014 DIGILAW 331 (KAR)

Vasudeva Rao & Sons v. Prathiba Devi

2014-03-07

N.KUMAR

body2014
ORDER N. Kumar, J. 1. These three writ petitions are preferred by the defendants challenging the order passed by the trial Court on an application filed under Order VII Rule 10 CPC for returning the plaint and directing the plaintiffs (three sisters) to present the same before the proper Court. 2. The case of the plaintiffs in all the three suits is that, they are the absolute owners of a portion of the property bearing Original Municipal No. 20, New No. 32, Seshadri Road, Bangalore-560 009 having obtained the same under a registered partition deed dated" 09.02.1977; the portion allotted to the share of each of them has been assigned a new municipal number and the property owned by each of them is as described in the respective plaint schedule.' The first defendant is a partnership firm registered under the provisions of the Partnership Act, 1932 and it is represented by its Managing Partner Sri A Prabhakar Rao, the second defendant. The plaintiffs' leased vacant land to the first defendant firm under a registered lease deed dated 31.07.1978 and the lease was for a duration of 32 years. Under the lease deed, the first defendant was permitted to construct as one composite unit, multistoried building upon the schedule property belonging to them and accordingly, the first defendant constructed the building in accordance with the sanctioned plan obtained by them. It was agreed that, on the expiry of lease period on 31.07.2010, the first defendant shall quit and deliver the vacant possession of the schedule 'A' property together with all the constructions made thereon. The first defendant has put up construction consisting of Ground floor, Mezzanine floor plus five floors on the leased property and is running a lodging business therein under the name and style "Hotel Sheetal". The tenancy is a monthly tenancy commencing from 1st day of every month and ending on the last day of the said month. Initially, the rent was fixed at Rs. 200/- and it was increased from time to time as stipulated in the lease deed. The lease granted in favour of the first defendant expired by efflux of time on 31.07.2010. The plaintiffs being not desirous to continue the tenancy, issued notice dated 17.07.2010 terminating the tenancy of the first defendant and called upon the firm to quit and deliver the vacant possession of the schedule premises on 01.08.2010. The lease granted in favour of the first defendant expired by efflux of time on 31.07.2010. The plaintiffs being not desirous to continue the tenancy, issued notice dated 17.07.2010 terminating the tenancy of the first defendant and called upon the firm to quit and deliver the vacant possession of the schedule premises on 01.08.2010. On due service of notice, defendants sent reply dated 30.08.2010 refusing to vacate and hand over possession of the suit property to the plaintiffs. 3. The plaintiffs claim that the built up area of the suit property is about 12,000/- square feet and it is situated in Anand Rao Circle, which is near the Railway Station and also Karnataka State Road Transport Corporation Bus Stand. As such its rent would be about 30/- per square at present and therefore, the defendants are liable to pay Rs. 3,60,000/- per month from 01.08.2010 till the date of handing over the possession with interest at 18% per annum. As on the date of suit, the defendants were liable to pay a sum of Rs. 7,20,000/-. Therefore, the plaintiffs filed the suits for ejectment; for a direction to the defendants to quit and deliver vacant possession of the schedule premises and to pay Rs. 7,20,000/- towards mesne profits and also to pay the sum of Rs. 3,600/- per month as future mesne profits and cost. 4. The summons were duly served on the defendants, who after entering appearance did not file the written statement, but filed an application on 26.07.2011 under Order VII Rule 10 CPC read with Section 151 CPC for return of the plaint for presentation before the proper Court. In the affidavit filed in support of this application, the defendants denied the allegations made by the plaintiffs, in particular, the claim for future mesne profits. The defendants also contended that the Hon'ble High Court of Karnataka in Abdul Wajid Vs. A Onkarappa reported in ILR 2011 KAR 229 has held that having regard to Section 9 of the Karnataka Small Causes Courts Act, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction and that the Court of Small Causes has jurisdiction to take cognizance of not only a suit for ejectment but also for recovery of mesne profits and damages. The plaintiffs have admitted that the last paid rent is Rs. The plaintiffs have admitted that the last paid rent is Rs. 1,500/- per month and if the same is calculated for 12 months, it amounts to Rs. 18,000/- per year. As such City Civil Court, Bangalore has no jurisdiction to try the suit and the plaint should be returned for presentation before the proper Court. 5. The plaintiffs filed their objection contending that the suit is maintainable. The defendants who are carrying on business in the schedule property intentionally evaded service of summons by colluding with the postal authorities; and were ultimately served by substituted service i.e., by way of affixture on 23.04.2011 and entered appearance in the suit on 27.06.2011 through their advocate and the matter was adjourned to 13.07.2011 and subsequently to 26.07.2011 for filing written statement. Instead of filing the written statement, the defendants have come up with a frivolous application for return of the plaint and the application is liable to be dismissed. 6. The Trial Court upon consideration of the rival contentions has held, relying on the decision of the Full bench of this Court in Abdul Wajid Vs. A.S. Onkarappa reported in ILR 2011 KAR 229 that, the Court of Small Causes has jurisdiction to entertain the suits subject to pecuniary limits. The pecuniary limits of Small Causes Court is Rs. 1,00,000/-. After referring to Sections 41 and 50 of the Karnataka Court Fees and Suits Valuation Act as well as Section 6 and also Order II Rule 3CPC, it held that, the plaintiffs can seek mesne profits at the prevailing rate of rent in the market. The plaintiffs have not only sought for mesne profits at the market rate, but they have also paid Court fee on it. The matter would have been different, if the plaintiffs had not paid the Court fee on mesne profits/damages. Even otherwise, this was not the stage to consider whether the mesne profits claimed by the plaintiffs are arbitrary and excessive. To determine the pecuniary jurisdiction of the Court, valuation made by the plaintiffs in the plaint alone is to be looked into; the measure of mesne profits is directly related to the profits defendants would have earned by the use of the property. The trial Court, therefore, found no merit in the application and dismissed the same. Aggrieved by the said order, the defendants are before this Court. 7. The trial Court, therefore, found no merit in the application and dismissed the same. Aggrieved by the said order, the defendants are before this Court. 7. Learned Counsel for the defendants, Sri P.D. Surana, assailing the impugned order contended that, the Trial Court has not properly appreciated the contention urged by the defendants regarding the jurisdiction of the Court and also regarding mis-joinder of causes of action and therefore, he submits that the order requires to be set aside. 8. To the query by the Court as to how an application is maintainable even without a written statement being filed, it was argued that, the question of jurisdiction can be raised at any stage of the proceedings. The Court is bound to consider such question of jurisdiction and therefore, non filing of the written statement cannot be held against the defendant. 9. It is in the backdrop of the above arguments, it is necessary to decide first whether the application filed under Order VII Rule10 CPC by the defendant is maintainable in law. 10. Section 9 of CPC reads as under: 9. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 11. Therefore, it is clear that, the Civil Court shall have jurisdiction to try all suits of a civil nature. The only exception is if the jurisdiction of the Civil Court is excluded either expressly or by necessary implication. 12. Further, Section 21 of CPC which deals with objections to jurisdiction reads as under:- 21. Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases, where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) xxxxxxx (3) xxxxxxx 13. Therefore, an objection regarding place of suing should be taken at the first instance at the earliest possible opportunity and in all cases where issues are settled, at or before settlement of issues. 14. Order I Rule 13 deals with objections as to non-joinder or mis-joinder. It reads as under- 13. Objections as to non-joinder or mis-joinder. Therefore, an objection regarding place of suing should be taken at the first instance at the earliest possible opportunity and in all cases where issues are settled, at or before settlement of issues. 14. Order I Rule 13 deals with objections as to non-joinder or mis-joinder. It reads as under- 13. Objections as to non-joinder or mis-joinder. All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. 15. Similarly, Order II Rule 7 speaks about objections as to mis-joinder and provides that, Objections as to mis-joinder. All objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and "any such objection not so taken shall be deemed to have been waived. 16. Order XIV Rule 1 CPC deals with Framing of Issues. Order XIV Rule 2 mandates the Court to pronounce judgment on all issues. Sub rule (2) of Rule (2) provides as under:- 2. Court to pronounce judgment on all issues.- (1) XXX XXX (2) where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first and if the issue relates to- (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 17. From the above scheme of the Code, it is clear that when a suit is filed, the defendant is entitled to raise objections regarding jurisdiction of the Court. The said objection may relate to territorial jurisdiction, pecuniary jurisdiction or maintainability of the suit. 17. From the above scheme of the Code, it is clear that when a suit is filed, the defendant is entitled to raise objections regarding jurisdiction of the Court. The said objection may relate to territorial jurisdiction, pecuniary jurisdiction or maintainability of the suit. When the defendant is served with the suit summons and he is called upon to file the written statement, the objection regarding jurisdiction is to be pleaded in the written statement. Then the Court would frame issues both on the questions of fact and law. If the objection regarding jurisdiction is not pleaded in the written statement, then, even at the time of framing issues the said objection could be raised. In all cases where issues are settled, at or before such settlement, the said objection shall be taken. That is the meaning of the phrase "at or before" used in the aforesaid provisions of law. The issue regarding jurisdiction is an issue of law and it may be tried as a preliminary issue. Therefore, the Court is called upon to decide whether the suit is maintainable or not, whether the Court has pecuniary or territorial jurisdiction or not, only after framing of the issues and not before. If an objection is taken to the jurisdiction of the Court to entertain the suit and if an issue is framed, and if the issue is answered holding that the said Court has no jurisdiction, then only the Court gets the jurisdiction to pass an order for return of the plaint under Order VII Rule 10 CPC for presentation to the Court in which it should have been instituted. 18. Order VII Rule 10 reads as under: 10. Return of plaint. (1) Subject to the provisions of rule 10A, 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. 19. (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. 19. A plaint could be returned to the plaintiff under Rule 10 of Order VII CPC only in a case where the Court in which the suit is prosecuted suffers from lack of territorial or pecuniary jurisdiction. The question of either of the parties filing an application under Order VII Rule 10 for return of the plaint is not contemplated under the Code. If the Court, on considering the aforesaid issues, holds that the Court has no jurisdiction to entertain the suit, Order VII Rule 10 provides for return of plaint for presentation before proper Court having jurisdiction to try the suit. 20. A Full Bench of the Allahabad High Court in the case of Ananti vs. Channu, AIR 1930 ALL 193] has observed as under:- The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If......... he frames his suit in a manner not warranted by the facts and goes for his relief to a court which cannot grant his relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint as framed, would not justify the other kind of court to grant him the relief........If it is found on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff or not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiffs suit will have to be dismissed in its entirety. 21. If on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiffs suit will have to be dismissed in its entirety. 21. Therefore, it is clear that a plaint cannot be returned for presentation to the proper Court on the ground that it has no jurisdiction to adjudicate the dispute. If the suit is not cognizable by the Court then the suit will have to be dismissed in its entirety leaving the plaintiff to approach the appropriate forum. In a case where the jurisdiction of the Civil Court is expressly or by necessary implication excluded then the Court has to dismiss the suit on the ground that it is not maintainable. It cannot return the plaint for presentation to the Court which can take cognizance of the said dispute. 22. On the one hand, the words, 'at any stage of the suit' means, even after the trial has begun and concluded, the plaint could be returned for presentation to the proper Court. On the other hand 'at any stage of the suit' would also include stage prior to the filing of the written statement. Normally, 'at any stage of the suit' means, at any stage of the suit before the judgment therein is delivered. A plaint should not be returned unless the Court finds that it has no jurisdiction. It should be remembered that no Court can blindly accept any plaint without prima facie satisfaction of its jurisdiction to entertain the matter. Therefore Order VII Rule 10 confers suo motu power on the part of the Court to return the plaint for presentation. It also can be exercised after defendant pointing out to the Court that it has no jurisdiction. If the Court is suo motu exercising the power, it may be at the initial stage where generally office raises an objection in the check slip stating that the Court has no jurisdiction to entertain the suit. Then before ordering summons, after hearing the plaintiff, if the Court is convinced that it has no jurisdiction, either territorial or pecuniary, it can return the plaint for presentation to the proper Court. Then before ordering summons, after hearing the plaintiff, if the Court is convinced that it has no jurisdiction, either territorial or pecuniary, it can return the plaint for presentation to the proper Court. If the Court were to exercise the said power at the instance of the defendant, then the defendant has to raise an objection to that effect in the written statement. In the scheme of the Civil Procedure Code, there is no stage before the written statement is filed, where an opportunity is given to the defendant to raise such objection. It is needless to point out that after the amendment to the Code of Civil Procedure in 2002 prescribing 30 days as the period for filing the written statement from the date of service of summons, instead of filing written statement and raising objection regarding jurisdiction in the written statement, if the defendant were to file an application, he would be doing so at his peril. Because it would take considerable time to dispose of such an application filed by the defendant. However that delay in disposal would not extend the period prescribed for filing the written statement. When the defendant engages a Counsel, raises an objection regarding jurisdiction of the Court, it cannot be said that he is an innocent person or an illiterate person, in whose favour any indulgence is to be shown by the Court. If such an objection is raised and the period prescribed for filing written statement in the meanwhile expires, his right to file written statement is once and for all taken away. On the ground that he had filed an application raising such objection, the Court cannot permit him to file written statement. Otherwise, the very object of the Parliament amending the law prescribing the time limit within which the written statement is to be filed would be defeated. In this context, it is relevant to notice that earlier an application under Order VI Rule5 CPC seeking for better particulars, used to be filed and disposal of the same was taking considerable time. It is only after better particulars are furnished, the defendant was in a position to file written statement. After noticing that this provision was coming in the way of speedy disposal of cases, the same was omitted from the Code. It is only after better particulars are furnished, the defendant was in a position to file written statement. After noticing that this provision was coming in the way of speedy disposal of cases, the same was omitted from the Code. Therefore, 'at any stage of the proceedings' mentioned in Order VII Rule 10 is to be construed in that context. If so construed, it is clear that objection regarding jurisdiction is to be raised by the defendant in the written statement to be filed by him and on such plea being raised, the Court is under an obligation to frame issue to that effect and then try that issue as preliminary issue. The power of the Court to return the plaint at any stage of the suit should not be confused to the right of the party to raise an objection regarding jurisdiction of the Court at any stage of the suit. The right of the party could be enforced only by pleading in the written statement or at the time of framing issues. He has no right to file an application before filing the written statement What he could do by filing an application, he could do by pleading the same in the written statement. Therefore, the said question regarding jurisdiction which would be the subject matter of preliminary issue cannot be decided at the instance of the defendant prior to his filing the written statement by filing an application under Order VII Rule 10 CPC. The said provision does not confer any right on the defendant to invoke the jurisdiction by filing an application under Order VII Rule 10 CPC. An application under Order VII Rule 10 CPC is wholly misconceived. An application under Order VII Rule 10 CPC by the defendant is not maintainable. If such an application is filed, it is liable to be dismissed in limine without even calling for any objection from the plaintiff. 23. Rule 10A provides the procedure to be followed by the Court after the Court is of the opinion that plaint should be returned. The aforesaid provision vests in the Court the power to return the plaint to the plaintiff to enable the plaintiff to present the plaint in the Court in which it should have been instituted. 23. Rule 10A provides the procedure to be followed by the Court after the Court is of the opinion that plaint should be returned. The aforesaid provision vests in the Court the power to return the plaint to the plaintiff to enable the plaintiff to present the plaint in the Court in which it should have been instituted. By introduction of Rule 10A, if the Court comes to the conclusion that the plaint is to be returned, an obligation is cast on the Court to intimate its decision to the plaintiff. When such an intimation is given to the plaintiff by the Court and if he accepts the said decision, then he can make an application specifying the Court in which he proposes to present the plaint after its return and request the Court to fix a date for the appearance of the parties in the said Court and notice of date so fixed may be given to him and to the defendant. This provision was introduced to avoid time being spent in issue of summons by the Court where the plaint is represented. The object is to have speedy disposal of suits and avoid delay. 24. It is quite disturbing that, when we talk about speedy disposal of the civil suits, a new procedure is invented where without filing the written statement, the defendants are filing an application under Order VII Rule 10 CPC for return of the plaint. The party or counsel cannot be prevented from filing such applications. But the Court must be alert and it should not be a party to such tendency and entertain such application, call for objections from the plaintiff or pass detailed orders on application holding it is not maintainable in law. Therefore, if an application is filed under Order VII Rule 10 CPC, even before filing of the written statement it shall be liable to be dismissed in limine without calling for plaintiffs objections. It is however, open to the defendant who has filed such an application, to raise all such objections in the written statement and request the Court to frame proper issues and to try the issue regarding jurisdiction as preliminary issue. Then he has to convince the Court that, it has no jurisdiction... The Court, only thereafter will have to pass an order in terms of Order VII Rule 10 and 10A of CPC returning the plaint. Then he has to convince the Court that, it has no jurisdiction... The Court, only thereafter will have to pass an order in terms of Order VII Rule 10 and 10A of CPC returning the plaint. An application under Order VII Rule 10A is therefore, not contemplated to be filed or entertained by the Court in civil proceedings before filing the written statement. If such an application is filed, before filing the written statement, it would amount to abuse of process of the Court. The Civil Court has to come down heavily upon such practice by dismissing the application with exemplary cost, so that no party would take advantage of CPC and bring bad name to the Court as well as to the Civil Procedure Code. 25. In view of the above, the application filed under Order VII Rule 10 CPC by the defendants without filing the written statement was not maintainable and it ought to have been rejected in limine without wasting the precious time of the Court in considering the rival contentions. 26. As is clear from the facts set out above, the defendants have taken the property for a duration of 32 years for lease. After the expiry of lease period, they did not vacate the premises. Hence, the owners were constrained to file the suit. After filing of the suit, though the defendants continued to be in occupation of the lease property, they could not be served with suit summons as they were avoiding the same by colluding with postal authorities and ultimately, they have been served by way of an affixture on 23.04.2011 i.e., roughly about 8 months after filing of the suit. The defendants entered appearance on 27.06.2011 i.e., 2 months after the date of service of summons. After a lapse of one month from the date of appearance of the defendants, the present application is filed. Civil Procedure Code as amended by Amendment Act 22/2002 mandates that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. After a lapse of one month from the date of appearance of the defendants, the present application is filed. Civil Procedure Code as amended by Amendment Act 22/2002 mandates that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. The proviso provides that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for the reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. This amendment came into effect on 01.07.2002. Even after a decade of coming into force of the said provision, it is unfortunate that the written statement is not being filed within 30 days from the date of service of suit summons on the defendants. 27. In this case, no written statement is filed, but an application is filed for return of plaint for presentation before the proper Court. After termination of the tenancy, the defendants have been in possession of the property without paying rent and are interested only in dragging on the proceedings endlessly. As the courts are tolerating this conduct, the entire judicial system is being ridiculed. It is high time that the Courts act more responsibly and be alert in enforcing the mandatory provisions which are intended to facilitate speedy disposal of the civil cases and restore the confidence of the society and litigant public in particular, in the administration of justice. 28. In that view of the matter, I pass the following: Order (i) The writ petitions are dismissed on payment of cost of Rs. 10,000/- each. (ii) The Trial Court shall proceed with the trial of the suit in terms of the proviso of sub rule (2) of Rule1 of Order XVII and shall dispose of the suit within a period of six months from the date of receipt of the copy of this order.