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2023 DIGILAW 1154 (AP)

Chukka Ramalakshmi v. Bobbili Anteravedi

2023-08-01

R.RAGHUNANDAN RAO

body2023
ORDER : R. Raghunandan Rao, J. 1. The petitioners herein had filed OS No. 33 of 2010 before the learned Senior Civil Judge, Tadepalligudem for partition of the plaint scheduled property. 2. The defendants in the suit had appeared and filed their written statement and Trial had been conducted. After the completion of the Trial, the Trial Court had taken a view that the Suit is beyond the pecuniary jurisdiction of the Court and returned the plaint to the petitioners. 3. Aggrieved by the said return of plaint, the petitioners have approached this Court by way of the present revision petition. At that stage, the Registry had taken an objection that a revision would not be maintainable as an appeal had been provided under Order XLIII Rule 1 of C.P.C. 4. The petitioners had sought the matter to be placed before the Court for a hearing on the question of whether a revision is maintainable in such circumstances or not. 5. Sri Aditya Harshavardhan, learned Counsel appearing for the petitioners would submit that the plaint had been returned under Order VII Rule 10-A and sub-rule (5) of Order VII Rule 10-A bars any appeal to be filed in the event of return of plaint under Order VII Rule 10-A of C.P.C. He would submit that in such circumstances only a revision would be maintainable. He would also submit that on the merits of the case there would be gross injustice caused to the petitioner, if the plaint is returned at this stage and consequently it would be always be open to this Court to intervene under Article 227 of the Constitution of India, as the availability of an alternative remedy does not in any manner prohibit this Court from considering a revision under Article 227 of the Constitution of India. 6. Order VII Rule 10 of C.P.C. provides that a Court can return any plaint which in the opinion of the Court cannot be heard by the said Court. 7. Any party aggrieved by such a decision of the Court, under Order VII Rule 10 can approach the higher Court by way of an appeal under Order XLIII Rule 1(a) of C.P.C. Order VII Rule 10-A of C.P.C. was introduced by way of Amendment Act No. 104 of 1976. 8. 7. Any party aggrieved by such a decision of the Court, under Order VII Rule 10 can approach the higher Court by way of an appeal under Order XLIII Rule 1(a) of C.P.C. Order VII Rule 10-A of C.P.C. was introduced by way of Amendment Act No. 104 of 1976. 8. Order VII Rule 10-A of C.P.C. provides for a situation where a Court arrives at an opinion that the plaint has to be returned, after the defendants appear in the case. In such a situation, the Court would have to give an intimation of its decision to the plaintiff. Upon such intimation being given, it would be open to the plaintiff to move an application under Order VII Rule 10-A(2) for directions from the Court to specify the Court where the plaint would have to be presented; the date of appearance of the parties in the said Court and waiving further notice of the date so fixed to all the parties. In the event of such an application being made, the Court, returning the plaint, can pass necessary orders under sub-rule (4). In the event of such a procedure being followed, the plaintiff would not be entitled to appeal against the order returning the plaint. This provision under sub-rule (5) is reflected again in Order XLIII Rule 1 of C.P.C., which reads as follows: "1. Appeal from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely: (a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in Rule 10-A of Order VII has been followed];" 9. The learned Counsel for the petitioner would submit that since the plaint had been returned after the defendant had appeared, the return of the plaint would have to be treated as a return of plaint under Order VII Rule 10-A and consequently the Bar to any appeal contained in sub-rule (5) of Order VII Rule 10-A as well as Order XLIII Rule 1 would be applicable and only a revision would be the remedy available to the petitioners. 10. A reading of Order VII Rule 10-A would show that the said rule provides for a procedure set out under three steps namely: (i) The Court intimating the plaintiff about its opinion that the plaint should be returned. 10. A reading of Order VII Rule 10-A would show that the said rule provides for a procedure set out under three steps namely: (i) The Court intimating the plaintiff about its opinion that the plaint should be returned. (ii) The plaintiff filing an application for certain directions mentioned above. (iii) The Court passing such directions. It is only when all these three stages are gone through that the Bar under sub-rule (5) of Order VII Rule 10-A would be applicable. 11. I am fortified in this view by the following judgments: (i) Kunchu and others v. Vasu Master and another, AIR 2005 Ker. 191 (ii) M/s. Instruments Incorporated v. M/s. Industrial Cables, AIR 1996 Kar. 360 (iii) Union of India v. New India Assurance Co. Ltd., AIR 1997 Del. 54 (iv) T. Venkatacharya and another v. Deputy Commissioner of Endowments, Warangal and others, 2007 (3) ALD 136 . 12. Accordingly, there is no Bar on an appeal to be filed by the petitioner herein. 13. This would leave the 2nd question of whether this Court can intervene in a revision under Article 227 of the Constitution despite the presence of a remedy of an appeal remains to be answered. 14. It is settled law that constitutional remedies such as Articles 226 and 227 of the Constitution of India are not trampled by any restriction of the existence of an alternative remedy. Such principle would extend to the provisions of C.P.C., also. However, Courts have always taken the view that the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India is a discretionary power vested with the Court and such power is to be exercised sparingly and in special circumstances, when there is an alternative remedy available to the party approaching the Court. In the present case, the remedy of appeal under Order XLIII Rule 1 is an adequate remedy and this Court does not find any special reasons for exercising jurisdiction under Article 227 of the Constitution of India. 15. Accordingly, the civil revision petition is to be returned to the petitioner leaving it open to the petitioner to exercise his remedies under Law.