1. Partition suit — Challenge to pecuniary jurisdiction — Application for transposition of plaintiffs as defendants under Order 1 Rule 10 CPC. (Para 3 )
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2000 Supreme(SC) 701
SUPREME COURT OF INDIA
S.B.Majmudar : U.C.Banerjee
Bijoyo Kumar Pattanaik
Versus
Basanta Kumar Patnalk
Case No. : 1267 of 1988
Date of Decision : 4/4/00
The Supreme Court can utilize Article 142 of the Constitution to bypass procedural bottlenecks, permitting amendments like the transposition of parties in cases where a trial court lacks pecuniary jurisdiction, to ensure justice is not defeated by technicalities and the matter is decided on merits.
Headnote:(A) Code of Civil Procedure, 1908 - Order 1 Rule 10 and Order 7 Rule 10 - Pecuniary Jurisdiction - Transposition of parties - A court that lacks pecuniary jurisdiction to entertain a suit cannot grant an application to transpose plaintiffs as defendants - Where an appellate court has already held that the trial court lacks jurisdiction and ordered the return of the plaint, the correct procedure is for the plaintiff to present the plaint before the competent court (Paras 3, 4).
(B) Constitution of India - Article 142 - Power to do complete justice - Where procedural bottlenecks and technicalities thwart real justice and lead to prolonged delays in a partition suit, the court may exercise its extraordinary powers to short-circuit the procedure to ensure the matter is decided on merits (Para 5).
Facts of the case:
Five plaintiffs filed a partition suit. The trial court passed a preliminary decree, but the first appellate court set it aside on the grounds of lack of pecuniary jurisdiction, ordering the plaint to be returned for presentation to the proper court. The High Court confirmed this order. Instead of seeking the return of the plaint, the plaintiff applied to the trial court to transpose the other co-plaintiffs as defendants. The trial court rejected the application as it lacked pecuniary jurisdiction, a decision subsequently upheld by the High Court in revision.
Findings of Court:
The court found that the plaintiff had created a procedural whirlpool by failing to follow the correct path of returning the plaint. It agreed that the trial court, lacking jurisdiction, could not have granted the transposition. However, to avoid a zig-zag technical procedure that would further delay a suit filed in 1975, an intervention was necessary to serve the ends of justice.
Issues: Whether a trial court lacking pecuniary jurisdiction can permit the transposition of parties, and whether the Supreme Court can exercise its powers to resolve such procedural deadlocks to ensure an expeditious trial.
Ratio Decidendi: Although a court without pecuniary jurisdiction cannot generally entertain applications for transposition of parties, the Supreme Court can, under Article 142 of the Constitution, permit such amendments to resolve procedural bottlenecks and ensure the suit proceeds on merits, provided proper court fees are paid and the court subsequently acquires jurisdiction.
Result: Appeal allowed to the extent that the appellant is permitted to transpose the other original plaintiffs as defendants, and the trial court is directed to proceed with the suit expeditiously after the amendment is carried out and proper court fees are paid.
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Table of Contents
2. Whether a court lacking pecuniary jurisdiction can permit the transposition of plaintiffs as defendants under Order 1 Rule 10 CPC. (Para 3 , 4 )
3. A court lacking pecuniary jurisdiction cannot grant transposition; the correct procedure is returning the plaint for presentation to the competent court. (Para 4 , 5 )
4. A court devoid of pecuniary jurisdiction to entertain a suit cannot exercise powers to transpose parties under Order 1 Rule 10 CPC. (Para 4 , 5 )
5. Invoking Article 142 of the Constitution, the court permitted transposition and amendment of the plaint to allow the trial court to proceed. (Para 5 )
6. Can a court lacking pecuniary jurisdiction grant an application for transposition of parties?
No. A court that lacks pecuniary jurisdiction to entertain a suit cannot grant an application under Order 1 Rule 10 of the Code of Civil Procedure to transpose plaintiffs as defendants. (Para 4 , 5 )
7. What is the correct procedure when a trial court is found to lack pecuniary jurisdiction?
The correct procedure is for the court to return the plaint under Order 7 Rule 10 of the Code of Civil Procedure for presentation before the appropriate competent court. (Para 3 , 4 )
8. Under what authority can the Supreme Court bypass technical procedural requirements to ensure justice?
The Supreme Court can use Article 142 of the Constitution of India to pass orders that short-circuit technical procedural delays and serve the ends of justice. (Para 5 )
(1) THIS appeal is an illustration as to how procedural bottlenecks could thwart real justice to the parties and the partition suit of 1975 can be kept still lingering at the threshold on the question of payment of proper court-fees and the pecuniary jurisdiction of the competent court to try it.
(2) A few relevant facts leading to this appeal deserve to be noted at the outset to highlight the aforesaid observation of ours.
(3) THE appellant as well as respondent nos. 1 to 4 as co-plaintiffs filed a civil suit being O.S. No. 67 of 1975-1 in the Court of teamed Munsif, Khurda in Orissa State. In that suit the five plaintiffs claimed partition and separate possession of their shares in the suit properties. In the present appeal we are not concerned with the merits of the suit. The original defendant no. 3 who is respondent no. 5 before us contested the suit on various grounds including one of pecuniary jurisdiction of the trial court to entertain the suit. Ultimately, the trial court took up the suit over-ruling the objection of defendant no. 3 about the Courts pecuniary jurisdiction to entertain the suit. The trial court passed a preliminary decree for partition against defendant no. 3 on contest. This decree of the trial court resulted into an appeal at the instance of respondent no. 5 herein - the original defendant no. 3 before the Court of Additional Subordinate Judge, Bhubaneswar. Learned first appellate Judge after hearing the contesting parties took the view that the trial court had no pecuniary jurisdiction to entertain the suit. On that ground alone the judgment and decree of learned Munsif, Khurda were set aside by order dated 17.3.1980. The plaint was ordered to be returned to the appellant who was respondent no. 1 and respondent nos. 1 to 4 who had been joined as co-respondents 2 to 4 in that appeal, for presentation to the proper court. This order of the first appellate court i.e. the court of learned Additional Sub-Judge, Bhubaneswar was carried in appeal being Miscellaneous Appeal No. 214 of 1980 before the High Court. The said Miscellaneous Appeal came up for hearing before R.N. Misra, C. J. (as his Lordship then was) who by order dated 17.4.1981 dismissed the same and confirmed the order of the first appellate court meaning thereby the direction to the appellant and respondent nos. 1 to 4 was maintained. The appellant moved a review petition before learned Judge who dismissed the same on 15.1.1982. Learned Judge observed in the said order that the consequence of dismissal of the Misc. Appeal is that the plaintiff will have to present his plaint in the appropriate court. It isalways open to him to ask for transposition in the proceeding in the court below. Whether transposition would be granted is a matter of discretion. Thereafter, the appellant- plaintiff instead of getting the plaint returned to him for presentation before proper court went to the trial court i.e. the court of learned Munsif. He requested learned Munsif by his Miscellaneous Application No. 13 of 1982 under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure to permit him to transpose plaintiff Nos. 2 to 5 as defendant nos. 4 to 7. He also applied on 25.4.1981 to learned trial court i.e. Munsif, Khurda to return the plaint under Order 7 Rule 10, Civil Procedure Code. for presentation of the suit to the proper court. Thereafter, on 6.9.1982 the appellant withdrew that application and prosecuted only his application under Order 1 Rule 10 Civil Procedure Code. Under these circumstances, learned Munsif, Khurda by his order dated 4.10.1982 came to the conclusion that as he had no pecuniary jurisdiction to entertain this suit as held by the appellate court he could not grant permission to the plaintiff to transpose the remaining plaintiffs as defendants. It is this order which was carried in revision before the High Court. Learned Judge of the High Court, R.C. Patnaik, J. (as he then was) rejected the revision. I
