Important Point: If the Court have no territorial jurisdiction, Denovo trial is necessary.

1. Rule. Rule made returnable forthwith.

2. Heard finally by consent of learned counsel for the respective parties.

3. This order assails order dated 4th April, 2015, passed by the learned 2nd Joint Civil Judge Senior Division, Beed in Special Civil Suit No. 8/2013 thereby rejecting the application (Exh. 64) filed by petitioners, original defendants, seeking direction for returning of proceedings in Special Civil Suit No. 115/2009 to the Court of Civil Judge Senior Division, Barshi, directing the plaintiffs to furnish copies of documents and also permitting the petitioners to file written statement afresh.

4. The question raised in this petition is whether the suit instituted upon presentation of plaint to a correct Court after its return from the Court not having jurisdiction should be tried denovo or should be tried from the stage at which it has been pending earlier before the Court not having jurisdiction over the subject matter. In the opinion of learned counsel for petitioners, the answer to this question has to be in favour of denovo trial and, according to learned counsel for respondents, if much water has flown and the evidence has also been recorded before the earlier Court, the interest of justice would demand that the suit be allowed to proceed from the stage at which it was pending before the earlier Court.

5. The issue raised in this matter is no longer res integra. In the case of Harshad Chimanlal Modi (II) Vs. DLF Universal Ltd and another (2006) 1 SCC 364, on which heavy reliance has been placed by the learned counsel for petitioners, the Honourable Apex Court has held that when the plaint is returned by the Court not having jurisdiction to be presented before the Court having jurisdiction, it is not a case of “transfer” and it is a case of lack of jurisdiction of the first Court and that, in such an event, there is in the subsequent Court, no continuation of proceeding initiated in the wrong Court. The Honourable Apex Court has further held that this is for the reason that the proceedings initiated in the wrong Court were the proceedings taken by the Court not having jurisdiction over the subject matter of the proceeding and, therefore, would stand vitiated in the eye of law. This is the reason why the Honourable Apex Court held that in such a case, fresh trial is necessary.

6. Learned counsel for respondents has placed reliance upon the cases of Joginder Tuli Vs. S.L. Bhatia and another (1997) 1 SCC 502, Lalita Awasthi Vs. Vidya Devi and others CM(M) No. 577/2012 decided by learned Single Judge of the Delhi High Court on 24th September, 2013, and, Narendar Singh and others Vs. The Indian Institute of Architects FAO (OS) 64/2013 C.M. Appl. No. 1784/2013 decided on 28th November, 2013. In the case of Joginder Tuli, the facts were that when the suit was tried by the first Court, the first Court did have jurisdiction over the subject matter of the suit and had lost its jurisdiction only when there were amendments in the plaint and the valuation of the subject matter of the suit went beyond its pecuniary jurisdiction which prompted the first Court to return the plaint for being presented to the correct Court. In the light of these facts, the High Court directed the trial Court to proceed from that stage at which the suit stood transferred and, therefore, the Honourable Apex Court saw no illegality in the order passed by the High Court warranting its interference. These facts of Joginder Tuli's case were considered by the Honourable Apex Court in the case of Harshad Modi (supra) and it found that these facts being peculiar and restricted to that case, same would have to be appreciated in that manner only. Relevant observations of the Honourable Apex Court in paragraph no. 11 of the judgment are reproduced thus :

11. Reliance placed on behalf of the applicant on a decision in Joginder Tuli v. S.L. Bhatia does not carry the case any further. In that case, the suit when filed was within the jurisdiction of the Co