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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N. Kumar, J.
Vasudeva Rao & Sons - Appellants
Vs.
Prathiba Devi - Respondent
Writ Petition Nos. 13507, 13508 and 13509 of 2012
Decided On : 07.03.2014
CODE OF CIVIL PROCEDURE, 1908 - Section 21: [Aravind Kumar, J] Objection as to jurisdiction of Court - Held, an objection regarding place of suing should be taken at the first instance at the earliest possible opportunity and in all cases where issues are settled, at or before settlement of issues.
CODE OF CIVIL PROCEDURE, 1908 - Order 1, Rule 13 & Order 2, Rule 7: [Aravind Kumar, J] Non-joiner or misjoinder of parties - Objections has to be taken at the earliest possible opportunity, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen and any objection, not taken shall be deemed to have been waived.
CODE OF CIVIL PROCEDURE, 1908 - Order 7, Rule 10: [N. Kumar, J] Return of plaint - Procedure to be fallowed - Suit for ejection and mesne profits -Held, When a suit is filed, the defendant is entitled to raise objections regarding jurisdiction of the Court. The said objection may relate to territorial jurisdiction, pecuniary jurisdiction or maintainability of the suit. When the defendant is served with the suit summons and he is called upon to file the written statement, the objection regarding jurisdiction is to be pleaded in the written of fact and law. If the objection regarding jurisdiction is not pleaded in the written statement, then, even at the time of framing issues the said objection could be raised. In all cases where issues are settled, at or before such settlement the said objection shall be taken. That is the meaning of the phrase "at or before" used in the aforesaid provisions of law. The issue regarding jurisdiction is an issue of law and it may be tried as a preliminary issue. Therefore, the Court is called upon to decide whether the suit is maintainable or not, whether the Court has pecuniary or territorial jurisdiction or not, only after framing of the issues and not before. If an objection is taken to the jurisdiction of the Court to entertain the suit and if an issue is framed, and if the issue is answered holding that the said Court has no jurisdiction, then only the Court gets the jurisdiction to pass an order for return of the plaint under Order VII, Rule 10 CPC for presentation to the Court in which it should have been instituted. A plaint could be returned to the plaintiff under Rule 10 of Order VII CPC only in a case where the Court in which the suit is prosecuted suffers from lack of territorial or pecuniary jurisdiction. The question of either of the parties filing an application issues, holds that the Court has no jurisdiction to entertain the suit, Order VII, Rule 10 provides for return of plaint for presentation before Court having jurisdiction to try the suit. Therefore it is clear that a plaint cannot be returned for presentation to the proper Court having it has no jurisdiction to adjudicate the dispute. If the suit is not cognizable by the Court then the suit will have to be dismissed in its entirety leaving the plaintiff to approach the appropriate forum. In a case where the jurisdiction of the Civil Court is expressly or by necessary implication excluded then the Court has to dismiss the suit on the ground that it is not maintainable. It cannot return the plaint for presentation to the Court which can take cognizance of the said dispute. Objection regarding jurisdiction is to be raised by the defendant in the written statement to be filed by him and on such plea being raised, the Court is under an obligation to frame issue to that effect and then try that issue as preliminary issue. The power of the Court to return the plaint at any stage of the suit should not be confused to the right of the party to raise an objection regarding jurisdiction of the Court at any stage of the suit. The right of the party could be enforced only by pleading in the written statement or at the time of framing issues. He has no right to file an application before filing the written statement. What he could do by filing an application, he could do by pleading the same in the written statement. Therefore, the said question regarding jurisdiction which would be the subject matter of preliminary issue cannot be decided at the instance of the defendant prior to his filing the written statement by filing an application under Order VII, Rule 10 CPC. The said provision does not confer any right on the defendant to invoke the jurisdiction by filing an application under Order VII, Rule 10 CPC. An application under Order VII, Rule 10 CPC is wholly misconceived. An application under Order VII, Rule 10 CPC by the defendant is not maintainable. If such an application is filed, it is liable to be dismissed in limine without even calling for any objection from the plaintiff. If such an application is filed, before filing the written statement, it would amount to abuse of process of the Court. The Civil Court has to come down heavily upon such practice by dismissing the application with exemplary cost, so that no party would take advantages of CPC and bring bad name to the Court as well as to the Civil Procedure Code. Writ Petition dismissed with cost of Rs. 10,000/- each. Directions given to Trial Court to proceed in terms of Proviso to sub-rule (2) of Rule 1 of Order 17 and dispose of the suit within 6 months.
CODE OF CIVIL PROCEDURE, 1908 - Order 7, Rule 10-A: [Aravind Kumar, J] Return of plaint - Rule 10-A provides the procedure to be followed by the Court after the Court is of the opinion that plaint should be returned. The aforesaid provision vests in the Court the power to return the plaint to the Plaintiff to enable the plaintiff to present the plaint in the Court in which it should have been instituted. By introduction of Rule 10-A if the Court comes to the conclusion that the plaint is to be returned, an obligation is cast on the Court to intimate its decision to the plaintiff. When such an intimation is given to the plaintiff by the Court and if he accepts the said decision, then he can make an application specifying the Court in which he process to present the plaint after its return ant request the Court to fix a date for the appearance of the parties in the said Court and notice of date so fixed may be given to him and to the defendant. This provision was introduced to avoid time being spent in issue of summons by the Court where the plaint is re-presented. The object is to have speedy disposal of suits and avoid delay
N. Kumar, J.
1. These three writ petitions are preferred by the defendants challenging the order passed by the trial Court on an application filed under Order VII Rule 10 CPC for returning the plaint and directing the plaintiffs (three sisters) to present the same before the proper Court.
2. The case of the plaintiffs in all the three suits is that, they are the absolute owners of a portion of the property bearing Original Municipal No. 20, New No. 32, Seshadri Road, Bangalore-560 009 having obtained the same under a registered partition deed dated" 09.02.1977; the portion allotted to the share of each of them has been assigned a new municipal number and the property owned by each of them is as described in the respective plaint schedule.' The first defendant is a partnership firm registered under the provisions of the Partnership Act, 1932 and it is represented by its Managing Partner Sri A Prabhakar Rao, the second defendant. The plaintiffs' leased vacant land to the first defendant firm under a registered lease deed dated 31.07.1978 and the lease was for a duration of 32 years. Under the lease deed, the first defendant was permitted to construct as one composite unit, multistoried building upon the schedule property belonging to them and accordingly, the first defendant constructed the building in accordance with the sanctioned plan obtained by them. It was agreed that, on the expiry of lease period on 31.07.2010, the first defendant shall quit and deliver the vacant possession of the schedule 'A' property together with all the constructions made thereon. The first defendant has put up construction consisting of Ground floor, Mezzanine floor plus five floors on the leased property and is running a lodging business therein under the name and style "Hotel Sheetal". The tenancy is a monthly tenancy commencing from 1st day of every month and ending on the last day of the said month. Initially, the rent was fixed at Rs. 200/- and it was increased from time to time as stipulated in the lease deed. The lease granted in favour of the first defendant expired by efflux of time on 31.07.2010. The plaintiffs being not desirous to continue the tenancy, issued notice dated 17.07.2010 terminating the tenancy of the first defendant and called upon the firm to quit and deliver the vacant possession of the schedule premises on 01.08.2010. On due service of notice, defendants sent reply dated 30.08.2010 refusing to vacate and hand over possession of the suit property to the plaintiffs.
3. The plaintiffs claim that the built up area of the suit property is about 12,000/- square feet and it is situated in Anand Rao Circle, which is near the Railway Station and also Karnataka State Road Transport Corporation Bus Stand. As such its rent would be about 30/- per square at present and therefore, the defendants are liable to pay Rs. 3,60,000/- per month from 01.08.2010 till the date of handing over the possession with interest at 18% per annum. As on the date of suit, the defendants were liable to pay a sum of Rs. 7,20,000/-. Therefore, the plaintiffs filed the suits for ejectment; for a direction to the defendants to quit and deliver vacant possession of the schedule premises and to pay Rs. 7,20,000/- towards mesne profits and also to pay the sum of Rs. 3,600/- per month as future mesne profits and cost.
4. The summons were duly served on the defendants, who after entering appearance did not file the written statement, but filed an application on 26.07.2011 under Order VII Rule 10 CPC read with Section 151 CPC for return of the plaint for presentation before the proper Court. In the affidavit filed in support of this application, the defendants denied the allegations made by the plaintiffs, in particular, the claim for future mesne profits. The defendants also contended that the Hon'ble High Court of Karnataka in Abdul Wajid Vs. A Onkarappa reported in ILR 2011 KAR 229 has held that having regard to Section 9 of the Karnataka Small Causes Courts Ac
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