By the present appeal from order i.e. A.O., the petitioners/original plaintiffs have challenged the order passed by the 3rd Jt. Civil Judge, Senior Division, Aurangabad in Spl.C.S. No.7312004 dated 08/03/2005, by which the plaint was returned to the plaintiffs for presentation to the Court. in which the suit should have been instituted without disclosing the name of that Court under the provisions of Order 7, Rule 10 of CPC. This order is impugned in this A.O..

2. Vide order dated 15/04/2009, after hearing the counsel for appellants and respondent, this Court has admitted the present appeal.

3. Today, when the A.O. came on board for final hearing, heard learned counsel for appellants followed by the submissions of respondent. During the course of submissions across the bar, my attention is drawn towards the order impugned, as well as the plaint filed in the Court of Civil Judge, S.D. Aurangabad, which is numbered as Spl.C.S. No.7312004. It is not under dispute that the appellants who are plaintiffs before Lower Court are transporters and dealing in transport business. They have entered into contract with one Gangapur Cooperative Sugar Factory to move the molasses from the premises of respondent defendant Dr. Babasaheb Ambedkar Sahakari Sakhar Karkhana, Osmanabad and to transport the molasses to the factory site of Gangapur Cooperative Sugar Factory, within the local jurisdiction of Aurangabad District. It is to be noted that while the trucks of appellants are transporting the molasses, they were detained by the respondent, the defendant before the Lower Court and also recovered an amount of Rs.7,00,000/- under receipt of which reference is given in para no.10. These trucks were detained on 22/11/2003, hence the suit for compensation for the wrong committed at the hands of respondent defendant for the decree of compensation in the sum of Rs. 10,78,335/with future interest and damages @ 4,000/- per day from 16/02/2004 till the release of trucks. The dates of institution of the suit is not under dispute as 22/02/2004. It is informed across the bar that after the suit was filed, under the directions of the Court on application by the appellants, those vehicles were released by consent of respondent/defendant. In the premise, release of trucks by way of mandatory orders now do not survive, at least at this juncture. It further appears that after service of summons, the respondents appeared before the Trial Court and filed an application vide Exh.24 to frame the preliminary issue about the territorial jurisdiction in which the suit to be instituted and to be tried as the competent civil court is the authority to decide the dispute between the parties. It appears that vide order below Exh.24, passed on 25/01/2005, the learned Lower Court was pleased to frame the preliminary issue in respect of territorial jurisdiction in which the suit to be tried. It is not under dispute that this order of framing of preliminary issue is neither impugned in this AO nor was challenged by either of the parties by preferring the necessary AO. Hence that topic is now closed. Subsequent to framing of preliminary issue, after hearing the submissions of the parties, the learned Lower Court passed order below Exh.1 dated 08/03/2005, which is as stated earlier impugned in this AO by which the learned Trial Court is of the view that the territorial jurisdiction to try and entertain the suit is Civil Judge, S.D. Osmanabad, hence returned the plaint under Order 7, Rule 10 of CPC.

4. At the opening of the submissions, learned counsel appearing for the appellant placed in my hand the order passed in AO 92/2005 of this Court dated 22/02/2007. Parties to that AO are same. The identical order was under challenge and by the same order, the order passed about the return of plaint under Order 7, Rule 10 of CPC was set aside by this Court and Spl. Suit No.74/2004 was returned back to the Court of Civil Judge, S.D.

Aurangabad to try and dispose of in accordance with