JUDGMENT :

This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure, 1908 (for short “C.P.C.”) impugning the Order dated 09.08.2011 in O.S.No.603 of 2009 on the file of the learned Principal Senior Civil Judge, Tirupati, wherein the plaint is returned to present before the proper Court within seven (7) days from the date of the order holding that the Court has no jurisdiction to entertain the suit.

Reference of parties in the appeal:

1. The Appellant herein was the Plaintiff and the Respondent Nos., 1 to 5 herein were the Defendant Nos., 1 to 5 before the trial Court. For the sake of convenience and understanding, the parties are referred to as they were arrayed before the learned trial Court.

Case of the Plaintiff:

2. The case of the plaintiff in brief is that the Defendant No.1, is a member of the chit of the Plaintiff’s company, being highest bidder availed an amount of Rs.40,00,000/- agreeing to forego an amount of Rs.14,00,000/- out of the chit value. As on the date of the payment of prize amount, the Defendant No.1 paid Rs.8,00,000/-. He furnished Defendant Nos.2 to 5 as guarantors for the future liability of Rs.32,00,000/- and executed an Agreement of Guarantee on 24.05.2007. All the defendants executed promissory notes as a collateral security. Defendant No.1 created mortgage by way of deposit of title deeds relating to the schedule property in favour of the plaintiff’s company as a security. Having paid 31 installments, the Defendant No.1 committed default in payment of the remaining installments. Hence, for recovery of the amount, a suit has been filed seeking a preliminary decree against the mortgaged property of the Defendant No.1 and for a personal decree against all the defendants.

Version of the Defendant Nos. 1 to 5:

3. The Defendant Nos. 1 to 3 and 5 were set ex parte as they did not choose to contest the matter. The Defendant No.4 filed Written Statement denying the suit transaction. He also stated that he never executed Agreement of Guarantee in favour of the plaintiff’s company relating to the suit debt, that the suit property is not properly valued and the suit is barred by limitation.

Finding of the trial Court:

4. During the trial, on behalf of the plaintiff, P.Ws. 1 to 3 were examined and Ex.A-1 to Ex.A-17 were marked. The 4th Defendant was examined as D.W.1.

4.1. At this juncture, the learned counsel for Defendant No.4 raised an issue that the Court has no jurisdiction to entertain the suit since the Defendant No.1 joined as a member of the chit company at Eluru on 06.01.2007 and the Clause 14 of the Agreement of Guarantee/Ex.A-4 shows that any dispute arising out of the guarantee bond shall be subjected to the jurisdiction of the Court at Eluru only. Furthermore, PW.1 admitted about Clause 14 of Ex.A.4 in his cross examination.

4.2. The learned trial Judge framed a preliminary issue on the point as to whether the Court has jurisdiction to entertain the suit. While answering the same, the learned trial Judge was convinced with the argument of the learned counsel for the Defendant No.4 and accordingly, returned the plaint for presentation before the proper Court within 7 days.

4.3. After the said return, the learned counsel for the Plaintiff represented the plaint stating that the suit is based on mortgage and the suit property is situated within the jurisdiction of the Court and all the Defendants are also residing within the jurisdiction of the said Court, hence the conferment of the jurisdiction in the Chit Agreement of Guarantee will not override the general law i.e., the Code of Civil Procedure. The learned trial Judge returned the said representation reiterating the stand taken in the order impugned stating that the Order dated 09.08.2011 holds good and the plaintiff is at liberty to file revision against the said Order.

Grounds of appeal:

5. Feeling aggrieved and dissatisfied with the impugned order, the plaintiff carried the matter in this appeal on the following grounds:

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