Rameshwar Shivshanker vs Jayantilal Bhurabhai and Others

Chhatpar, J.—This is a second appeal from the decision of the District Judge dismissing the appeal of the Appellant and upholding the decision of the trial Court dismissing the suit. Both the lower Courts have come to the conclusion that the Court had no territorial jurisdiction to entertain the suit, as the Defendants were not residents within the limits of the jurisdiction of the trial Court and no part of the cause of action arose within its jurisdiction. Nevertheless the trial Court went into the merits of the case and dismissed the suit giving decision on other issues involved in the case. The lower appellate Court similarly went into the merits of the case and upheld the decision of the trial Court.

In the present second appeal Mr. Mehta the learned Advocate for the Appellant, has not challenged the finding of the two lower Courts that the trial Court had no jurisdiction to entertain the suit, as their finding is based upon questions of fact, which cannot be gone into in a second appeal; but his objection is that the trial Court should not have dismissed the suit but should have returned the plaint to the Plaintiff for presentation to the proper Court as enjoined by Order 7, Rule 10, CPC I had occasion to deal with a similar point in the case of -- Nazarali Ranchhod v. Chamar Ganesh Samat Second Appeal No. 50 of 1951 (Sau) (A), where the trial Court, while deciding that it had no territorial jurisdiction to entertain the suit, had dismissed the suit on merits. I pointed out that this course was improper, as the proper order to be passed in such circumstances was for return of the plaint to the Plaintiff for presentation to the proper Court. Of course, if the objection as to territorial jurisdiction is waived, the provisions of Section 21, Code of Civil Procedure, come into operation. In the present case there was no waiver. The Defendants did object to the jurisdiction at the earliest stage.

In support of the proposition that the Court should order the plaint to be returned to the Plaintiff and not dismiss the suit on merits, the wordings of Order 7, Rule 10, are quite clear. The rule states:

The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted

. I may also refer to the commentary of Chitaley and Rao on Code of Civil Procedure, 1951 Edn., pp. 1809-1810, to the effect that when the court comes to the conclusion that the suit should have been instituted in Anr. Court, the only thing it can do is to return the plaint to that Court and not to dismiss it. Numerous rulings are cited in the commentary at p. 1810 in support, which I need not discuss.

Mr. Shah the learned Advocate for Respondents 1 and 2 has however argued that when the Plaintiff invites the Court to give a finding upon other issues besides the question of jurisdiction raised by the Defendants and the suit is dismissed on merits, the order of the Court for dismissal on merits, in spite of the fact that it had no jurisdiction to entertain the suit, is not open to objection and he has cited a ruling reported in -- AIR 1940 331 (Nagpur) . In that case, a suit was filed for a specific sum alleged to be due by the Defendant in the Small Cause Court on the basis of the partnership accounts being settled. The Defendant contended that the suit as framed was not maintainable the settlement of accounts being denied, and that the Plaintiff should sue for settlement of partnership accounts. The finding was that the accounts were not settled and therefore the suit as framed was not maintainable, the proper remedy of the Plaintiff being to file a suit for settlement of accounts. In those circumstances the suit was properly dismissed and the plaint could not as framed be returned for presentation to the proper Court. That case has no application to the point in issue in the present case.

The second case relied upon by Mr. Shah is the case of -- B. Durga Prasad Seth and Another Vs. Om Prakash and Others . That was a case where the Civil Court could not grant the particular relief claimed in the suit, which could only be granted by a Revenue Tribunal. Under those circumstances, the dismissal of the suit was held to be proper. This case has also no application.

The third case relied upon by Mr. Shah is the Full Bench case of -- Mt. Ananti Vs. Chhannu and Others , which is referred to in B. Durga Prasad Seth and Another Vs. Om Prakash and Others . No question of jurisdiction was involved in this case; the question was whether certain reliefs which were claimed were within the competence of the Civil Court. This case has no application.

The last case relied upon is that reported in --Gokuldas v. Hansraj 9 Ind Cas 824 (All) (E), where a suit was brought in the District of Jalaun against Defendants who lived in the Nabha State. No part of the cause of action arose in the District of Jalaun. It was held that the Jalaun Court had no jurisdiction to entertain the suit. It was further held that the Court had no power to return the plaint for presentation to a proper Court in Nabha State. A very short judgment was given without discussing the specific provisions of Order 7, Rule 10, Code of Civil Procedure. The ratio decidendi appears to be that a plaint presented in and stamped for a Court in Jalaun is unlikely to be a plaint properly stamped for a Court in the Native State of Nabha, and it was under those circumstances that the suit was ordered to be dismissed.

Considering the specific provisions of Order 7, Rule 10, read with Section 21, CPC and the case law, I am clearly of the opinion that when an objection as to the place of suing has been raised and the Court decides it in favour of the Defendants holding that the Court had no territorial jurisdiction, the proper order for the Court is to return the plaint for presentation to the proper Court. The Court cannot, while holding that it had no jurisdiction to entertain the suit, at the same time give judgment on merits. Under the circumstances, I set aside the decrees of the lower Courts and order that the plaint be returned to the Plaintiff for presentation to the proper Court. The present Appellant will bear the costs of the Defendants in the two lower Courts; but so far as the costs of the present appeal are concerned, I order each party to bear its own costs.