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2023 DIGILAW 760 (KAR)

Shah Polymers No. 1 v. Canara Poly Pack Ltd.

2023-06-12

H.P.SANDESH

body2023
JUDGMENT : Heard the learned counsel for the appellant-plaintiff and learned counsel for the respondents. 2. This appeal is filed challenging the order dated 29.07.2017 passed in O.S.No.337/2008 on the file of the Principal Civil Judge (Jr.Dn.), Bengaluru Rural, Bengaluru, wherein the Trial Court, invoking Order 7, Rule 10 of C.P.C. ordered to return the counter claim to the defendants for presentation before the proper Court. Earlier, vide order dated 04.07.2013, the Trial Court had also passed an order that plaint has been returned for presentation before the Civil Judge, Nelamangala which has got jurisdiction to entertain the suit on the ground that suit schedule properties are situated within the territorial jurisdiction of Nelamangala Court. 3. The factual matrix of the case is that the plaintiff has filed the suit for the relief of permanent injunction in respect of the properties which is situated at Nelamangala Taluk. 4. The defendants have also appeared and filed the written statement and made counter claim for Rs.54,26,920.79/-and the same exceeds the pecuniary jurisdiction of the Court. The Trial Court, considering the counter claim, comes to the conclusion that the same exceeds the pecuniary jurisdiction of the Court and the Court has no pecuniary jurisdiction to try the counter claim. Hence, the claim has to be returned for presentation before the appropriate Court. 5. Learned counsel appearing for the appellant-plaintiff in this appeal would vehemently contend that the suit is filed for the relief of permanent injunction and the quantum of counter claim made is also more than the pecuniary jurisdiction is not in dispute. The counsel also brought to notice of this Court Order 8, Rule 6 (A) of C.P.C., wherein there is a proviso that such counter claim would not exceed the pecuniary limits of the jurisdiction of the Court. The counsel would submit that counter claim should not exceed the pecuniary limits of the jurisdiction of the Court when the counter claim is made in a suit. It also submitted that, when the claim is more than the pecuniary jurisdiction, the Trial Court ought not to have invoked Order 7, Rule 10 of C.P.C. ordering for return of the plaint and ought to have rejected the very counter claim itself. 6. It also submitted that, when the claim is more than the pecuniary jurisdiction, the Trial Court ought not to have invoked Order 7, Rule 10 of C.P.C. ordering for return of the plaint and ought to have rejected the very counter claim itself. 6. Per contra, learned counsel for the respondents-defendants would submit that, suit is filed for the relief of permanent injunction in respect of the properties which situate at Nelamangala and not within the jurisdiction of the Bengaluru Rural District. The counsel also would submit that the Trial Court ordered to return the plaint not only on one ground that the Court is not having jurisdiction for entertaining the suit for the relief of permanent injunction in respect of the properties which is situated within the jurisdiction of Nelamangala Court and the other ground is, when the counter claim is more than the pecuniary jurisdiction of the particular Court, the Trial Court has no any other option but to return the plaint to present the same before the Court, which is having competent jurisdiction to decide the issue between the parties. Hence, the Trial Court has not committed any error in invoking Order 7, Rule 10 of C.P.C., to return the plaint to present the same before the Court which is having jurisdiction to try the issue involved between the parties. The learned counsel also would submit that when the counter claim is made, the same has to be treated as claim and when the Court is not having the jurisdiction to consider that claim rightly ordered to return the plaint filed under Order 7, Rule 10 of C.P.C. Hence, it does not require any interference. 7. The learned counsel appearing for the respondents in support of her arguments, she relied upon the judgment of this Court in the case of Syed Imtiyaz v. Milka Vatsala reported in ILR 2007 KAR 5010, and brought to the notice of this Court that the factual aspects of the case, which has been referred in paragraph No.5, wherein, the defendant made the claim in a suit for ejectment that there was a sale transaction for an amount of Rs.5,20,000/-and the same exceeds the pecuniary jurisdiction of the particular Court. Hence, an application is filed for transfer of the case invoking Order VII Rule 10A(2) r/w. Order VIII Rule 6A(4) of CPC praying to transfer the counter claim to the Prl. Hence, an application is filed for transfer of the case invoking Order VII Rule 10A(2) r/w. Order VIII Rule 6A(4) of CPC praying to transfer the counter claim to the Prl. Civil Judge (Sr.Dn.), Mysuru. The learned counsel also would contend that when the application is filed instead of transferring the case given a liberty to the defendant to file a separate suit, the same has been questioned in the writ petition. The learned counsel also brought to the notice of this Court that the paragraph No.7, wherein, discussed with regard to the pecuniary jurisdiction and this Court while invoking Rule 10 of Order VII, the counter claim has to be treated as a plaint subject to the provisions of Rule 10A of Order VII and the same shall be returned for being presented to the Competent Court. As per sub-Rule(2) to Rule 10 of Order VII of CPC on returning of a counter claim (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. This Court has observed that the said procedure has not been followed. Hence, the impugned order has been set aside and ordered to pass an appropriate order in the light of the observations made above. The learned counsel would vehemently contend that the order is very clear when the jurisdiction exceeds, the Court has directed the concerned Court to pass appropriate order considering Order 7, Rule 10 of C.P.C. Hence, the order passed by the Trial Court is not erroneous. 8. The learned counsel also relied upon the judgment of the Calcutta High Court in the case of Sharmistha Biswas v. Nanigopal Deb & Another reported in 2014 SCC OnLine Cal 2691, and brought to the notice of this Court that paragraph Nos.13 and 14, wherein, discussed with regard to the Trial Court refusal to accept the petitioner’s counter claim in the impugned order was not entirely unjustified since it did not have pecuniary jurisdiction to entertain the same. Nevertheless in such eventuality it should not have also directed to the petitioner to pay off the Deficit Court-fees on her counter claim when it was not possessed of the proper jurisdiction. To that extent the grievance of the petitioner is certainly legitimate. Nevertheless in such eventuality it should not have also directed to the petitioner to pay off the Deficit Court-fees on her counter claim when it was not possessed of the proper jurisdiction. To that extent the grievance of the petitioner is certainly legitimate. In paragraph No.14 also, the Calcutta High Court held that even though the impugned order dated 08.09.2010 passed by the learned Trial Court is technically correct, but still the ends of justice will not be served by refusing acceptance of the petitioner’s counter claim when the Court itself had directed her to pay the Deficit Court Fees, and thereby implied a jurisdiction which it actually did not possess. The only appropriate and effective way-out to secure the end of justice now appears to be that both the Suit and the counter claim may be transferred to any other Civil Court at Alipore, which is possessed of the appropriate pecuniary jurisdiction to entertain the petitioner’s claim. For this purpose the petitioner is granted liberty to move an appropriate application under Section 24 of CPC before the learned District Judge, South 24Parganas at Alipore, and get the pending proceedings transferred accordingly. The learned counsel also would vehemently contend that by referring to this judgment also, when the Court is not having the pecuniary jurisdiction, the same cannot be continued and rightly passed an order invoking Order 7, Rule 10 of C.P.C. Hence, the impugned order cannot be set aside. 9. Having heard the respective counsel and also considering the material available on record, particularly, the order impugned before this Court is very clear that the suit is filed in Bengaluru Rural Court and the Court came to the conclusion that the property situated within the jurisdiction of Nelamangala and the Court is not having the territorial jurisdiction to entertain the suit. Admittedly, the suit is filed for the relief of bare injunction and ought to have been filed the same before the Court, which is having the jurisdiction and the suit is filed before Bengaluru Rural District and no dispute with regard to the fact that the property is situated at Nelamangala. Admittedly, the suit is filed for the relief of bare injunction and ought to have been filed the same before the Court, which is having the jurisdiction and the suit is filed before Bengaluru Rural District and no dispute with regard to the fact that the property is situated at Nelamangala. Hence, in the order impugned by making an observation with regard to the first aspect is that an order has been passed on 04.07.2013, that to return of plaint for presentation of the same before the Civil Judge, Nelamangala on the ground that the suit schedule properties are situated within the territorial jurisdiction of Nelamangala Court. Hence, I do not find any error in returning the plaint on the ground that the Court is not having the territorial jurisdiction to entertain the suit since the suit is filed for the relief of bare injunction. 10. The second aspect with regard to the contention of the learned counsel for the appellant is that the counter claim should not exceed in terms of the proviso of Order 6A, while making counter claim by the defendants that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. On perusal of the material also in the counter claim, the defendants made the claim to the extent of Rs.54,26,920.79 paise, the same exceeds the pecuniary jurisdiction of the Court since the pecuniary jurisdiction of the particular Court is only for an amount of Rs.5 Lakhs. If it exceeds more, the same has to be tried in a competent Court of jurisdiction. The principles laid down in the judgment of this Court in Syed Imtiyaz’s case (supra), wherein, an issue was arisen before this Court with regard to the pecuniary jurisdiction is concerned, wherein, the defendant made the claim that there was a sale agreement and sale consideration is Rs.5,20,000/-, the same exceeds the pecuniary jurisdiction of the particular Court. Consequently, an application is also filed under Order 7, Rule 10 of C.P.C., and the Trial Court instead of allowing the application directed to file a fresh suit and the same is challenged before the Court. Consequently, an application is also filed under Order 7, Rule 10 of C.P.C., and the Trial Court instead of allowing the application directed to file a fresh suit and the same is challenged before the Court. This Court having considered the Order 7, Rule 10 of C.P.C., the counter claim has to be treated as plaint subject to the provisions of Rule 10A of Order VII, the same shall be returned for being presented before the Competent Court and further observed that as per sub-Rule(2) to Rule 10 of Order VII of CPC on returning of a counter claim, the judge shall endorse thereon the date of its presentation and return. When the procedure has not been followed, set aside the order and directed the Trial Court to pass appropriate orders in the light of the observations made above. Hence, it is very clear that instead of ordering to file a separate suit, the Court has to consider the order and pass appropriate orders. In the case on hand, when the claim is made which exceeds the pecuniary jurisdiction of the particular Court and the said Court cannot decide the issue involved between the parties with regard to the pecuniary jurisdiction is concerned. When such being the case, the matter has to be returned to the particular Court, which is having jurisdiction to entertain the suit. The principles laid down in the judgment of the Calcutta High Court in Sharmistha Biswas’s case (supra), is also aptly applicable to the case on hand. 11. Having considered the principles laid down by this Court as well as the Calcutta High Court and the order passed by the Trial Court, on one ground it is ordered to return on the ground of no territorial jurisdiction. The second ground is that the Court is not having the pecuniary jurisdiction to entertain the counter claim. There is a force in the contention of the learned counsel appearing for the respondents that when the counter claim is made, the same has to be treated as plaint and the matter has to be adjudicated by the competent Court of law. When such being the material on record, I do not find any error committed by the Trial Court invoking Order VII Rule 10 of CPC directing the office to return the counter claim to the defendants for presentation before the proper Court. When such being the material on record, I do not find any error committed by the Trial Court invoking Order VII Rule 10 of CPC directing the office to return the counter claim to the defendants for presentation before the proper Court. According to Order 7, Rule 10 of C.P.C, the Trial Court exercised the proper jurisdiction to return the plaint to present the same before the appropriate Court. The very contention of the learned counsel is that in view of the provisions of Order VIII Rule 6A(4) of CPC, such counter claim shall not exceed the pecuniary limits of jurisdiction of the Court cannot be accepted. The claim is made, which is exceeding Rs.5 Lakhs and whether the Court is having jurisdiction to consider the counter claim has to be considered by the Court. Accordingly, the Trial Court has considered the pecuniary jurisdiction, which is not having with the said Court. Hence, ordered to return the plaint to present the same before the Competent Court of law to consider both the aspects of territorial jurisdiction as well as the pecuniary jurisdiction. Hence, I do not find any merit in the appeal to set aside the order of the Trial Court. 12. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the appeal, I.A.No.1/2017 for stay does not survive for consideration, the same stands disposed of.