The main legal point established in the judgment is that when a court finds it has no jurisdiction to try a suit, the proper course is to return the plaint for presentation to the proper court, as provided in Order 7 Rule 10 of the Code of Civil Procedure.

N.K. Agarwal, J.

1. Instant Plaintiff's first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 30-1-2002 passed by the 1st Additional District Judge, Rajnandgaon in Civil Suit No. 11-B/2001 whereby and whereunder Plaintiff's suit has been dismissed.

2. Facts of the case in brief are that the Plaintiff instituted a suit for recovery of Rs. 40,345.18 against the Respondents. The trial Court having found it had no territorial jurisdiction to decide the above suit vide its order dated 10-4-1995 directed for return of plaint. The Plaintiff preferred M.A. No. 343/ 95 before the High Court of M.P. The High Court of M.P. vide its order dated 18-2-2000 directed the trial Court to proceed with the case on merit in accordance with law by holding; it is not open to the learned Court below to decide the disputed question of fact without recording the evidence and decide the issue as to the jurisdiction as preliminary issue. If the Plaintiffs allegations are seen, that clearly amounts to giving the jurisdiction to the Rajnandgaon court.

3. The trial Court had framed thereafter several issues, decided all issues in Plaintiffs favour but dismissed the suit holding it had no territorial jurisdiction.

4. Shri Anoop Majumdar, learned Counsel for the Appellant would submit, once the trial Court had arrived at a conclusion that it had no jurisdiction to try the suit, the only course to be adopted in such circumstances was to return the plaint for presentation to proper court and not to dismiss the suit. He would further submit, the trial Court had decided all issues in Plaintiff's favour but dismissed the suit only on the above technical ground.

5. On the other hand, Shri Sanjay K. Agrawal, learned Counsel for the Respondents would submit, in view of amendment in the Code of Civil Procedure all issues both of law and fact were required to be decided together and the suit had to be disposed of as a whole based upon the finding of the trial Court on all issues both of law and fact. The trial Court after deciding all the issues having found it had no jurisdiction to try the suit had rightly dismissed the suit.

6. I have heard learned Counsel for the parties and perused the record of the court below.

7. The core question involved for decision making is while deciding the suit on merit if it is found by the court it had no jurisdiction to try the suit whether it would be appropriate for it to dismiss the suit or in such circumstance, the plaint should have been returned to the Plaintiff for its presentation to proper court in terms of Order 7 Rule 10 of Code of Civil Procedure.

8. The Supreme Court in the case of R.S.D. v. Finance Company Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. AIR 1993 SC 2094 has held if the court had arrived to the conclusion that it has no jurisdiction to try the suit, the only course open to be adopted in such circumstances was to return the plaint for presentation to proper court and not to dismiss the suit. The High Court of Orissa in case of I.D.L. Chemicals Limited, Rourkela v. Income Tax Officer (Recovery) Sambalpur and Ors. AIR 1986 Ori 136 has taken a view; when the trial Court found that it had no territorial jurisdiction it should have given an opportunity to the Plaintiff to take the return of plaint as envisaged under Order 7 Rule 10. Same view is taken by the High Court of Allahabad in the case of Kailash Chandra Agarwal v. Subhash Chand Satish Chnd Viyopari and Ors. AIR 1981 All 112 in the case of Gulab and Ors. v. Jaggan Ram Singh and Ors. AIR 1983 All 145

9. Order 7 Rule 10 of the Code of Civil Procedure reads thus:

10. Return of plaint.--(1) Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation--For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit,