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2017 DIGILAW 1167 (ORI)

Basudev Guchhait v. Narayan Prasad Shaw

2017-10-17

BISWANATH RATH

body2017
ORDER 17.10.2017 C.M.P. No. 1243 & C.M.P. No. 1138 of 2017 Heard Sri Baug, learned counsel for the petitioner in C.M.P. No. 1243 of 2017, Sri D.P. Mohanty, learned counsel for the petitioners in C.M.P. No. 1138 of 2017 and Sri P.K. Jena, learned counsel for the caveator in both the cases. This matter arises out of rejection of an application under Order 7 Rule 10 of C.P.C. at the instance of the defendants as appearing at Annexure-4. Assailing the impugned order, referring to the plaint averments made in paragraph no. 2 as well as the paragraph no. 6 of the suit involved herein, both the learned counsels for the petitioners in respective cases conjointly submitted that for there being no Ice Cold Factory in Balasore, it is absolutely false to aver that there was meeting at Balasore to bring the suit within the purview of the Balasore jurisdiction, the plaintiff had the only cause of action in the State of West Bengal. It is under ;the premises and for the grounds stated in the application under Order 7 Rule 10 of C.P.C., both the counsels submitted that there is no proper consideration of the issue of jurisdiction of the Court involved by the trial Court and unless the impugned order is interfered with, it may set a bad law. Sri Jena, learned counsel for the opposite party in both the matters on the other hand opposing the submission made by the learned counsel for petitioners and referring to the pleadings available on plaint averments giving several cause of actions involving the dispute involved in the suit submitted that there has been right consideration of the issue involved by the trial Court and therefore, there is no scope for interfering with the impugned order in exercise of power under Article 227 of the Constitution of India. Considering the rival contentions of the parties and taking into consideration the provisions contained in Order 7 Rule 10 of C.P.C., this Court finds, consideration of the application under Order 7 Rule 10 C.P.C. is solely based on the plaint averments and no other document can be taken into account while considering such issue. Considering the rival contentions of the parties and taking into consideration the provisions contained in Order 7 Rule 10 of C.P.C., this Court finds, consideration of the application under Order 7 Rule 10 C.P.C. is solely based on the plaint averments and no other document can be taken into account while considering such issue. Further, looking to the plaint averments relied upon by both the parties particularly the averments made in paragraph 2 as well as paragraph 6 of the plaint and the disclosures therein with regard to the meetings between the parties at various places, it appears, the plaintiff has a prima facie case for satisfying the case in the State of Odisha. Considering that presently there is only a prima facie view, it is still open to the parties for asking the trial Court for framing appropriate issues on the question of jurisdiction of the Court taking up the trial. Perused the reasons assigned in the impugned order and for the observations made therein, this Court finds, there is no illegality in the reasons as well as the ultimate finding involving the impugned order. As a consequence, this Court finds no scope for interfering with the impugned order. Thus, while dismissing the Civil Miscellaneous petition for having no merit at this stage of the suit, this Court makes it clear that finding of the trial Court regarding maintainability of the suit in consideration of an application under Order 7 Rule 10 of C.P.C. shall not debar the defendant from approaching the trial Court for framing the issue on the question of jurisdiction involving the issue and in such event, appropriate issue shall be framed and decided in accordance with law. Further, considering the request of learned counsels for both the parties, this Court directs the trial Court to conclude the trial involving the suit within nine months from the date of communication of a certified copy of this order. This Court records the undertaking of both the parties through their respective counsels that they will not indulge in unnecessary adjournment and will co-operate the trial Court for timely disposal of the suit. The civil miscellaneous petitions stand disposed of with the above order. CMP disposed of.