IMPORTANT POINT
The main legal point established in the judgment is the need to consider the time and efforts spent in the court lacking jurisdiction and the suggestion that the proceedings should not start de novo in the new court to avoid wasting time and efforts.

ORDER :

DEEPAK GUPTA, J.

According to us, there is an apparent conflict between the judgment in Oil and Natural Gas Corporation Ltd. v. Modern Construction & Company, (2014) 1 SCC 648 and Joginder Tuli v. S. L. Bhatia, (1997) 1 SCC 502 , which we feel should be resolved by a larger Bench.

2. The issue which needs to be resolved is “whether after a plaint is returned in terms of Order VII Rule 10 and Rule 10A, Code of Civil Procedure (CPC), should the trial in the Court where the plaint is now filed start de novo or from such stage at which the plaint was ordered to be returned?”

3. To appreciate the issue in hand, it would be necessary to give certain facts. The plaintiff (respondent herein) filed a civil suit at the Court at Gurgaon for recovery against the defendants (petitioners herein). On 26.08.2011, the defendant filed an application under Order VII Rule 10 CPC seeking return of the plaint for want of jurisdiction. It would be pertinent to mention that the ground taken was that the cause of action arose at Meerut and no cause of action arose at Gurgaon and further the defendants did not reside at Gurgaon. This application was contested and it was dismissed on 12.03.2015. The Court held that the evidence was required to be recorded and, therefore, it felt that the issue of jurisdiction should be framed separately as a preliminary issue. Thereafter, the parties filed their pleadings. Issues were framed on 01.10.2015 but at that stage, no preliminary issue was framed. Later, on 06.11.2015, a preliminary issue with regard to jurisdiction of the trial court was framed. Parties led evidence on the preliminary issue and the trial court vide order dated 06.09.2016 decided the issue in favour of the plaintiff and against the defendants. The case was then fixed for the evidence of the plaintiff which was recorded on 17.03.2017. The evidence of the defendants was closed on 03.07.2017 and the matter was adjourned to 18.07.2017 for rebuttal evidence, if any, and for arguments.

4. In the meantime, the defendants had challenged the order dated 06.09.2016 before the High Court by filing Civil Revision No. 8026 of 2016. This civil revision was decided on 05.09.2017. The High Court held that in view of the clause in the agreement which was signed in Delhi conferring exclusive jurisdiction to the courts at Delhi, the Court at Gurgaon had no jurisdiction. The relevant portion of the judgment reads as follows:

“In the present case, the parties with open eyes decided to confer exclusive territorial jurisdiction in the courts at Delhi. The agreement between the parties is admitted. It was a commercial contract between the parties. In these circumstances, the court at Gurgaon is found lacking in the territorial jurisdiction.

Learned counsel for the respondent has submitted that the trial has made substantial progress and, therefore, this Court should not interfere at this stage.

I have examined the contention of the learned counsel for the respondent. However, once the Court at Gurgaon is found to be lacking in territorial jurisdiction, therefore, it will not be possible for this Court to accept the contention.

In view of the above, the order under revision is set aside. The learned trial court shall take steps to return the file in accordance with the provisions of Order 7 Rule 10 and 10A of the Code of Civil Procedure.

The revision petition is allowed.”

5. Thereafter, the plaintiff filed an application under Order VII Rule 10 and 10A praying that the entire file be returned for presenting the same to the District Judge, South West Dwarka, Delhi and a date be fixed for appearance before the said Court. This application was contested by the defendants. The trial court directed that the entire case file be sent to the Court at Dwarka, Delhi. A revision petition was filed and the main ground which was taken was that the trial should start de novo in the Court at Dwarka. The High Court dismissed the revision petition holding that the Court at Dwarka was a t