Back
2009 Supreme(Bom) 1328
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE D.B. BHOSALE
M/s Vshnu Horticultural Pvt Ltd. & Another
Versus
M/s.Shampiyan Viniyard Ltd. & Others
Writ Petition No.1163 of 2009
Decided on : 06-10-2009
For the Petitioners:A.B. Borkar, Advocate. For the Respondents:
P.S. Dani, Advocate.
Headnote:Civil Procedure Code, 1908 - Order VII, Rules 10-A and 11 - Return of plaint - Rejection of written statement then filed before Court which had no jurisdiction on ground of inconsistent averments - Presentation of suit in proper Court - Suit to be treated as fresh suit - Rejection of written statement on ground that defendant made averments in written statement which not found place in original written statement filed in suit before return of it unjustified. - In the present case, the plaint was returned by the Court of Civil Judge, Junior Division, Kolhapur for its presentation in the appropriate Court, namely, the Court at Sindhudurg. The order returning the plaint was passed on the application at Exhibit 32 filed by the plaintiff respondents under Order II, Rule 10-A(2) of the Code directing the plaintiffs to remain present before the Civil Judge, Senior Division, Oras, Sindhudurg at 11 am on 25.3.2008. The petitioner defendant therefore had a notice as contemplated by Rule 10-A of Order VII of the Code and time to the file written statement in this case would start from the date of representation of the plaint in the Court at Sindhudurg-Oras. In other words the service of summons to the defendant would be the date fixed by the Court while returning the plaint under Order VII, Rule 10. Therefore, the Court at Sindhudurg Oras in which the plaint was presented was required to follow the procedure contemplated by the provisions of the Code as if it was a fresh suit. The defendant, therefore, has a right to file a fresh written statement in the suit irrespective of the fact whether it is consistent with earlier written statement filed in the Court which had no jurisdiction to entertain the suit. The question, therefore, raised in paragraph 2 of this judgment must be answered in the affirmative. At the most the plaintiff in such a case, may be able to use the contents of earlier written statements, if it is inconsistent with the fresh written statement, for confronting the defendant’s witness during cross-examination. In the circumstances, rule is made absolute. The impugned judgment is set aside.
Civil Procedure Code, 1908 - Order VII, Rules 10-A and 11 - Return of plaint - Presentation of suit in proper Court - Cannot be treated as continuation of proceedings of Court which had no jurisdiction - Suit commence from stage of its institution on date when plaint presented to proper Court. - The law is no clear. When a plaint is returned for presentation to the proper Court and is presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint is presented in that Court. In other words after the plaint is presented in the proper Court it cannot be treated as continuation of the proceedings of the Court which had no jurisdiction but a suit would commence from the stage of its institution on the date when the plaint would be presented to the proper Court.
Oral Order:
1. Heard learned counsel for the parties.
Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. By consent of the learned counsel for the parties, the petition is taken up for hearing and final disposal at the admission stage itself.
2. Where, in any suit, after the defendant has appeared and filed written statement, the plaint is returned under Order VII Rule 10 of the Code of Civil Procedure, whether the defendant can file fresh written statement with the averments which did not find place in the original written statement filed before the Court which had no jurisdiction to entertain the suit, is the question raised in this petition.
3. The petitioners are original defendants (for short, “the defendants”). The respondents-plaintiffs (for short, “the plaintiffs”) instituted a suit being Special Civil Suit No.18 of 2008 in the Court of Civil Judge, Jr Dn, Kolhapur for recovery of an amount and in the alternative for specific performance of the agreement dated 3.3.2004. The suit was instituted in January, 2007. In February, 2007 the defendants appeared and filed written statement in the suit, raising an objection as to the jurisdiction of the court at Kolhapur. Accordingly, a preliminary issue was framed and decided vide order dated 29.2.2008 holding that the Court at Kolhapur, has no jurisdiction to entertain the suit, and as a consequence thereof the plaint was returned under Order VII Rule 10A (2) of the Code of Civil Procedure (for short, “the Code”). The plaintiffs thereafter presented the plaint in the court at Sindhudurg on 18.3.2008. There, the defendants filed fresh written statement, which, according to the plaintiffs, was not consistent with the written statement that was filed in the court at Kolhapur, where the suit was initially instituted. It was also contended that the defendants have no right to file fresh written statement. The Civil Judge, Sr.Dn., Sindhudurg-Orus, vide order dated 14.10.2008, rejected the written statement (Exh.10), holding that the defendants have no right to file fresh written statement and hence it cannot be accepted.
4. Mr Borkar, learned counsel for the petitioners, submitted that when a plaint is returned for its presentation to the proper court and is presented in that court, the suit can be deemed to be instituted in the proper court only when the plaint is presented in that court. In other words, he submitted, after the suit is presented in the proper Court, it cannot be treated as a continuation of the suit filed in the court, which returned the plaint and therefore, it being a fresh suit, the defendant is entitled to file fresh written statement, irrespective of the fact whether it is consistent with the earlier written statement. In support of his contention, he placed heavy reliance upon the Judgment of the Supreme Court in Harshad Chemical Mody (II) Vs, DLF Universal Ltd and anr, 2006 (1) SCC 364, Amar Chand Inani -vs- Union of India (AIR 1973 SC 313) and in Hanamanthappa and anr Vs. Chandrashekharappa , AIR 1997 SC 1307. Mr Dani, on the other hand, vehemently submitted that since the defendants filed written statement with the amended averments without seeking permission for amendment of the written statement as required under Order VI Rule 17 of the Code, it has been rightly rejected by the court below. He further submitted that it is not open to the defendants to file fresh written statement and at the most they could have sought amendment of the written statement after it was filed in the court at Kolhapur. In support of his submissions, Mr. Dani placed reliance upon the judgment in Sogivdan Tuli -vs S. C. Bhatia (l997), Supreme Court Cases 502.
5. The Code of Civil Procedure contains the law relating to the procedure in suits and civil proceedings. It provides the procedural formalities, which the parties to a suit require to comply with, right from the stage of institution of a suit. The lim
