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2015 Supreme(Bom) 1719
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
A.S. CHANDURKAR, J.
Shri Akola Gujrati Samaj, A public trust duly registered under the provisions of Bombay Public Trust Act, through President of the Trust– Mr. Suresh – Appellant (Ori. Plaintiff)
Versus
Akola Municipal Corporation, Through its Commissioner, Akola – Respondent (Ori. Defendant)
Appeal From Order No.80 of 2015
Decided on : 23.09.2015
Advocate Appeared:
Mr. M. G. Sarda, Advocate for the appellant.
Mr. A. R. Deshpande, Advocate for respondent.
The main legal point established in the judgment is that when a Civil Court concludes that a suit is barred by law due to the availability of a statutory remedy under a statute, there is no occasion to direct the return of the plaint for presenting before the proper forum.
Headnote:
Civil Court - Jurisdiction - Code of Civil Procedure, 1908 - [Order XLIII Rule 1(a)] - [Section 406 of the Maharashtra Municipal Corporations Act, 1949] - The court considered whether the Civil Court, after holding that it has no jurisdiction to try the suit, can direct the return of the plaint for presenting the same before the proper forum. The court discussed the provisions of Order VII Rule 10(1) of the Code and the interpretation of the term 'suit' in the context of jurisdiction and statutory remedies. The court concluded that the direction to return the plaint for presenting before the proper forum was without jurisdiction and set it aside.
Fact of the Case:
The appellant, a registered society and public trust, filed a suit against the respondent Corporation seeking declaration that a tax demand was illegal and without jurisdiction. The trial Court held that the suit was barred by law and directed the plaint to be returned for presentation before the proper forum.
Finding of the Court:
The trial Court's order dismissing the suit under Sections 9 and 9A of the Code was held to be an order against which the remedy of appeal under Section 96 of the Code is available. The direction to return the plaint for presenting before the proper forum was found to be without jurisdiction and was set aside.
Issues: The main issue was whether the trial Court's direction to return the plaint for presenting before the proper forum was valid, and whether the suit was maintainable in the Civil Court.
Ratio Decidendi: The court held that when the Civil Court concludes that the suit is barred by law due to the availability of a statutory remedy under a statute, there is no occasion to direct the return of the plaint for presenting before the proper forum. The interpretation of the term 'suit' in the context of jurisdiction and statutory remedies was crucial to the decision.
Final Decision: The court held that the order dismissing the suit was appealable under Section 96 of the Code, and set aside the direction to return the plaint for presenting before the proper forum. The appellant was given the option to file an appeal within a specified period, and no coercive steps were to be taken by the respondent during that period.
1. Admit.
2. Heard finally with the consent of the Counsel for the parties.
3. The question that arises for consideration in the present appeal is whether the Civil Court after holding that it has no jurisdiction to try the suit can direct return of the plaint for presenting the same before the proper forum.
4. This appeal filed under provisions of Order XLIII Rule 1(a) of the Code of Civil Procedure, 1908 (for short the Code) takes exception to the order passed by the trial Court whereby it has held that the Civil Court had no jurisdiction to try the suit as filed and then directed the plaint to be returned to the plaintiff for being presented before the proper forum.
5. The facts relevant for adjudication of the appeal are that it is the case of the appellant that it is a society registered under provisions of the Societies Registration Act, 1860 and is also a public trust under provisions of the Maharashtra Public Trusts Act, 1950. It is running an educational institution since last many years and the same is being run on the basis of donations received by the trust from its members and other donors. A lease of land was granted to the appellant for construction of a School by the State Government. According to the appellant, it was exempted from payment of municipal taxes under provisions of the Maharashtra Municipal Corporations Act, 1949 (for short the said Act). However, the respondent – Corporation had issued a bill for current taxes as well as arrears of taxes for a sum of Rs.21,79,957/. Being aggrieved by the aforesaid demand which according to the appellant was illegal and without jurisdiction, it filed suit for declaration that said demand was illegal and without jurisdiction. A declaration was also sought that it was not liable to pay municipal taxes as the land and building was used for charitable purposes. A decree for permanent injunction was also sought seeking to restrain the Corporation from putting any seal on the building of the appellant – trust.
6. Along with the suit, the appellant also filed an application under provisions of Order XXXIX Rules 1 & 2 of the Code seeking temporary injunction so as to restrain the Corporation from taking any coercive action for recovery of the taxes as demanded. The respondent filed an application vide Exhibit-30 under Section 9 of the Code pointing out that the Civil Court had no jurisdiction to try and entertain the suit as an alternate statutory remedy was available under Section 406 of the said Act. This application was replied by the appellant asserting jurisdiction of the Civil Court. The trial Court on 16.6.2015 framed a preliminary issue as regards its jurisdiction to try and entertain the suit. The trial Court after hearing the parties by the impugned order dated 3.8.2015 came to the conclusion that the suit as filed for declaration was barred by law and that the Civil Court had no jurisdiction to try and entertain the same. It held that remedy under Section 406 of the said Act was available and instead of filing an appeal under said provision, the suit in question had been filed which was barred by law. After coming to said conclusion, the trial Court directed the plaint to be returned to the plaintiff for being presented before the proper forum. This order is under challenge in the present appeal.
7. Shri A. R. Deshpande, the learned Counsel for the respondent raised a preliminary objection to the maintainability of the appeal on the ground that the order impugned had the effect of holding that the Civil Court had no jurisdiction whatsoever to entertain the suit as it was barred by law. In such situation, the aforesaid adjudication amounted to rejection of the plaint under Section 9A of the Code and, therefore, an appeal under Section 96 of the Code was maintainable. It was submitted that under provisions of Order VII Rule 10 of the Code, the plaint could not be directed to be returned for being presented before the proper forum and it could be returned on
