B.N. Siddananjappa (since Deceased by L.Rs. Smt. Rudramma and Others) vs P. Srinivasan

K.L. Manjunath, J.—For the sake of convenience, parties would be referred to as per their status before the trial court.

This is a defendant''s appeal. Appellant was defendant in O.S. No. 64/2002 before the Civil Judge (Sr. Dn), KGF. Respondent was the plaintiff.

Initially, plaintiff filed the suit in O.S. No. 167/98 before the civil Judge (Jr. Dn), KGF for recovery of possession of the suit property from the defendant and for perpetual injunction to restrain the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. Originally the suit was filed for bare injunction in O.S. No. 167/98. Later on, the plaintiff filed an application for amendment of plaint and requested the court to direct the defendant to deliver possession of the suit property on the ground that he has been dispossessed by the defendant during the pendency of the suit. An additional written statement was also filed by the defendant.

Pursuant to the amendment to the plaint, the Civil Judge (Jr.Dn), K.G.F., raised two issues (1) in regard to court fee payable toy the plaintiff (2) and the jurisdiction to entertain the suit considering the value of the property. These two issues were triad as preliminary issues. Thereafter, the court held that it had no pecuniary jurisdiction to entertain the suit. In the circumstances the plaint was ordered to be returned to the plaintiff to re-present the same before the competent court.

The plaintiff re-presented the plaint before the civil Judge (Sr. Dn), KGF and the suit is renumbered as O.S. No. 64/2002. The Civil Judge (Sr.Dn), KGF by order dated 31.7.2002 directed the parties to appear before the court on 3.8.2002. On 3.8.2002, deficit court fee of Rs. 6,400/- was paid by the plaintiff and case was adjourned to 30th September 2002. Thereafter, the case was adjourned from time to time to secure the records from Civil Judge (Jr.Dn), K.G.F and finally the arguments were heard and judgment was delivered on 15.12.2003 decreeing the suit of the plaintiff.

Being aggrieved by the judgment and decree of the trial court, the present appeal is filed by the defendant.

Though several grounds are urged by the appellant in the appeal memo, at the time of arguments, learned Counsel for the appellants has raised a short and an important question of law in this appeal. According to him, the trial court has committed an error in decreeing the suit relying upon the written statement filed by the defendant and the evidence let-in by the parties before the Civil Judge (Jr.Dn), KGF. According to the learned Counsel for the appellants, when Civil Judge (Jr.Dn), KGF returned the plaint under Order 7 Rule 10-A of code of Civil Procedure, it was for the Civil Judge (Sr. Dn), KGF to permit the defendant to file the written statement afresh and after framing of issues, the evidence has to be recorded afresh and judgment has to be passed thereon. The trial court without looking into the provisions of Order 7 Rule 10of CPC considered the written statement filed by the defendant before the Civil Judge (Jr.Dn), KGF and the evidence let-in by the parties before the Civil Judge (Jr.Dn), decreed the suit of the plaintiff. Therefore, he requests this Court to set aside the judgment and decree of the trial court.

According to Mr. Ashwathanarayana, learned Counsel for the respondent, the trial court has not committed an error in considering the written statement filed by the defendant and the evidence let-in by the parties before the Civil Judge (Jr.Dn), KGF. According to him, the defendant should have raised the said contention before the trial court and having not raised such a contention before the trial court, the appellants shall not be permitted to raise the same in the appeal. Therefore, he requests this Court to dismiss the appeal.

Mr. Papireddy, learned Counsel for the appellants contends that even if the appellant had not raised such a contention before the trial court, it was the duty of the trial court to follow the procedure of CPC. Having not followed the procedure, it could not have passed such a judgment and decree based on the written statement and the evidence recorded by a court which had no pecuniary jurisdiction to entertain the suit. He further contends that the question now raised by him is a question of law, which can be raised in a first appeal. Therefore, he requests this Court to allow the appeal.

Having heard the learned Counsel for the parties, what is to be considered in this appeal is;

Whether the trial court is justified in decreeing the suit based on the written statement and the evidence recorded by a court which had no pecuniary jurisdiction to entertain the suit or whenever a plaint is ordered to be returned to re-present the same before the competent court under Order 7 Rule 10-A of Code of Civil Procedure, the transferee court can pass a judgment and decree based on the pleadings of the parties and the evidence recorded by the court which had no jurisdiction to entertain the suit?

Facts of this case are not in dispute. Initially, plaintiff filed the suit in O.S. No. 167/98 before the Civil Judge (Jr.Dn), KGF. The defendant had filed the written statement, issues were framed and the evidence was also recorded by the civil Judge (Jr.Dn), KGF. Thereafter, by an order dated 24.7.2002, the Civil Judge (Jr.Dn) held that it had no pecuniary jurisdiction to try the suit. Again, on an application filed under Order 7 Rule-10of CPC by the plaintiff, plaint was ordered to be returned to the plaintiff to present the same before the civil Judge (Sr.Dn), K.G.F. directing both the parties to appear before the civil Judge (Sr. Dn), KGF. It is also not in dispute that the Civil Judge (Sr.Dn), K.G.F after receipt of the plaint has not given an opportunity for the defendant to file the written statement and did not frame the issues and record the evidence.

By securing the entire records from civil Judge (Jr.Dn), K.G.F., the trial court has heard the learned Counsel for both the parties and relying upon the pleadings and the evidence recorded by the Civil Judge (Jr. Dn), KGF has decreed the suit, which according to the learned Counsel for the appellants is contrary to the provisions of Order 7 Rule-10of code of civil Procedure.

By reading of Order 7 Rule 10of Code of Civil Procedure, it is clear that the court has directed the plaintiff to re-present the plaint before the proper court; if the plaintiff is ordered to re-present the plaint before the court, the office would return only the court fee, plaint and the suit documents. Even the vakalath filed cannot be returned to the plaintiff; since such vakalath was executed by a party to file the same before the court which had no jurisdiction to entertain the suit, when such being the case, the trial court would not get a jurisdiction to secure the records from the Civil Judge (Jr.Dn), K.G.F and to proceed with the case further.

When the plaint is ordered to be returned under Order 7 Rule 10of code of civil procedure, on re-presentation of the plaint, the court has to issue summons to the defendant. The issuance of the summons can be dispensed with only if there is an order under Order 7 Rule 10Aof code of civil procedure. In the present case, such an order has been passed by the civil Judge (Jr.Dn), K.G.F. Therefore, the Civil Judge (Sr.Dn), K.G.F has to proceed with the suit from the stage of filing written statement. The Civil Judge (Jr.Dn) which had no jurisdiction to entertain the suit even though had recorded the evidence, the same cannot be made use of by any of the parties before the transferee court, considering the provisions of Order 7 Rule 10of code of civil procedure, this Court is of the opinion that the Civil Judge, (Sr.Dn) KGF has committed an error in disposing of the suit relying upon the written statement filed by the defendant and the evidence recorded by a court which had no jurisdiction to entertain the suit. In the circumstances, the judgment and decree of the trial court has to be set aside only on this short ground.

In the result, the appeal is allowed. The judgment and decree passed in O.S. No. 64/2002 by the civil Judge (Sr.Dn), KEF dated 15 th December 2003 are hereby set aside. The matter is remitted back to the Civil Judge (Sr.Dn), K.G.F directing to commence the proceedings afresh by giving an opportunity for the defendant''s to file the written statement and to proceed further in accordance with law. Parties to bear their costs.

Considering that the suit was initially filed in the year 1998 and later re-presented in the year 2002, the trial court is directed to dispose of the suit within six months from the first date of hearing.