Mohd. Afzaluddin Ahmed and Modern Educational Society vs The Trustees Board Mahdavia Club, A.P. Wakf Board and The Govt. of A.P.

G. Rohini, J.—The revision petitioners are the defendants 1 and 2 in O.S. No. 2160/2011 on the file of the Court of X Junior Civil Judge, City Civil Court, Hyderabad. This revision petition is preferred aggrieved by the dismissal of I.A. No. 499/2013 filed by the revision petitioners/defendants 1 and 2 with a prayer to conduct denovo trial in the main suit.

I have heard the learned counsel for both the parties.

As could be seen from the material available on record, the 1st respondent herein is the plaintiff and the suit is filed against the revision petitioners and the respondents 2 and 3 herein for ejectment of the defendants and for recovery of possession on the plaint schedule property as well as mesne profits. Admittedly the proceedings were initially initiated before the Wakf Tribunal since the suit schedule property is alleged to be the Wakf property and it was numbered as O.S. No. 69/2009 on the file of the Wakf Tribunal. The defendants 1 and 2/revision petitioners contested the said proceedings by filing written statement and while the evidence on behalf of the plaintiff was in progress the plaint was returned for resubmission before the competent Civil Court following the decision of the Supreme Court that any proceeding before Tribunal for determination of disputes concerning eviction of tenants in occupation of property which was admittedly Wakf property is maintainable only before the Civil Court and not before the Wakf Tribunal. In pursuance of the order passed by the Wakf Tribunal returning the plaint for want of jurisdiction, the plaintiff resubmitted the same before the Civil Court. Thereafter, it was renumbered as O.S. No. 2160/2011 on the file of the Court of X Junior Civil Judge, City Civil Court, Hyderabad, and the proceedings were continued from the stage of recording of evidence of the plaintiff. At that stage the defendants 1 and 2 filed I.A. No. 499/2013 contending that the evidence recorded and the documents marked earlier by the Wakf Tribunal before return of plaint cannot be taken into consideration and it is necessary for the learned Junior Civil Judge to conduct fresh trial. The said application was opposed by the plaintiff and the Court below by order dated 16.08.2013 dismissed the application holding that the petitioners who had participated in the proceedings before the Civil Court without raising any objection for almost two years after the suit is taken up by the Civil Court cannot maintain the application for denovo enquiry.

Aggrieved by the said order dated 16.08.2013 the defendants 1 and 2 filed the present revision petition.

The learned counsel for the petitioners vehemently contended that the order under revision is erroneous and that the Court below ought not to have dismissed the application on the ground of delay in seeking denovo trial. In support of the submission that on return of plaint under Order VII Rule 10 of C.P.C. for want of jurisdiction the proceedings before the competent Court cannot be in continuation of the earlier proceedings before the wrong Court, the learned Counsel relied upon the decisions in Sri Amar Chand Inani Vs. The Union of India (UOI), Phoolchand and Another Vs. Gopal Lal, and Mohd. Mustafa Shareef Vs. Masoom Ali Mohalla Committee, M.A. Azeem and The A.P. State Wakf Board

On the other hand the learned counsel for the respondent while supporting the order under revision placed reliance upon Joginder Tuli Vs. S.L. Bhatia and Another,

Admittedly this is a case where O.S. No. 69/2009 on the file of the Wakf Tribunal was returned for want of jurisdiction so as to enable the plaintiff to present it before the competent Civil Court. In pursuance thereof O.S. No. 2161/2011 has been taken up by the Court of the X Junior Civil Judge, City Civil Court, Hyderabad i.e., the suit out of which this revision petition arose.

Order VII Rule 10 of C.P.C. provides that the plaint shall be returned at any stage of the suit to be presented to the Court in which the suit should have been instituted. It is explained in Amar Chand Inani''s case (supra) that when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court and that it cannot be treated as continuation of the suit filed in the wrong Court. Following the ratio laid down in the said decision this Court held in Mohd. Mustafa Shareef''s case (supra) that when a plaint is returned for presentation to proper Court under Order VII Rule 10 of C.P.C. the plaint alone is returned and as such the Court to which the plaint is later on presented will have to commence the proceedings on such plaint afresh and that the plaint so represented is not a continuation of the plaint presented in the former Court. This Court has also distinguished the presentation of the plaint in a competent Court under Order VII Rule 10 of C.P.C with that of the transfer of proceedings u/s 24(2) of C.P.C.

In the light of the settled legal position noticed above, it can be safely concluded that the only course open to the Court below is to take up the proceedings in O.S. No. 2160/2011 denovo as sought by the defendants 1 and 2/revision petitioners.

So far as the decision in Joginder Tuli''s case (supra) cited by the learned counsel for the 1st respondent is concerned, it is a case where a specific direction was issued by the High Court while ordering transfer to the District Court to proceed from that stage at which the suit stood transferred. The said decision is therefore clearly distinguishable and has no application to the case on hand.

It is no doubt true that the defendants did not raise the objection to the procedure being followed by the Court below at the first instance and allowed the proceedings to go on for a substantial period. However, in view of the well settled legal position that the proceedings that were conducted in the Court which has no jurisdiction to entertain the suit cannot be relied upon and on presentation before the competent Court the proceedings should be taken denovo, the mere delay on the part of the defendants in raising an objection is not a valid ground to act contrary to law.

For the aforesaid reasons, the impugned order is set aside and I.A. No. 499/2013 shall stand allowed as prayed for. In the result, the Revision Petition is allowed. No costs.