1. This is a Civil 2nd Appeal.

2. Heard. I have perused the record.

3. The question raised in this appeal is whether the trial Court after finding lack of jurisdiction to hear the suit should have returned the plaint to the appellant (plaintiff) in terms of the Order VII Rule 10 CPC?

4. Ld. trial Court has dismissed the suit for want of jurisdiction and Id. 1st Appellate Court has upheld the order.

5. Briefly, facts relevant for this appeal are that appellant filed a suit before the Id. Sub-Judge, Kulgam seeking declaratory decree, declaring that the land measuring 02 kanals 09 marlas falling under survey no.123 min of village, Munand Goffan, Tehsil; Kulgam is Wakaf property and respondents (defendants) have no right to make any encroachment in that land. Respondents contested this suit contending inter alia that in an application filed by inhabitants of the village on 24. 01. 2005, Special Officer, Auqaf, J & K Government, vide his order dated 16. 03. 2006 has declared that only land measuring 01 kanal and 13 marlas under Survey No. 132, comprising 05 marlas as Masjid and 01 kanal 08 marlas as Eidgah, was the Wakaf property.

6. Ld. trial Court framed six issues in the case and took up issue no.5, which reads,

"Whether this Court lacks jurisdiction to adjudicate upon the suit?"

as preliminary issue.

7. Ld. trial Court after hearing both sides came to the conclusion that under sec.5(1) of the J & K Wakfs Act (for short the Act), the decision of the Special Officer is final subject to appeal before the Government, which has not been filed, and that under sec. 5(3) of the said Act, civil court has no jurisdiction to settle, decide or deal with any question or to determine any matter which by or under that Act is required to be settled, decided or dealt with or to be determined by Special Officer. Ld. trial Court by its order dated 25. 4. 2009, therefore, dismissed the suit for want of jurisdiction.

8. Appellant challenged the order passed by ld. trial Court in appeal before ld. Principal District Judge, Kulgam, Appellate Court, however, by its order dated 1.7.2011 upheld the order of the trial Court on similar grounds and dismissed the appeal.

9. Appellant has challenged the orders passed by the ld. trial Court and the ld. appellate Court in this civil 2nd appeal.

10. Mr. M. M. Iqbal, ld. counsel for the appellant sought to project that ld. trial Court having found lack of jurisdiction to hear the suit was required to return the plaint for its presentation before the competent court to the appellant in terms of O. VII R. 10 CPC. He argued that order of dismissal passed by the ld. trial Court is illegal being contrary to the mandate of O. VII R. 10 CPC. In support of his argument, he relied upon judgment reported as AIR 1965 SC 338. Per contra, Mr. H. A. Wani, ld. counsel for respondents supported the orders. He argued that, having found that the order passed by the Special Officer was appealable before the Government, plaint could not have been returned to the appellant because such a suit did not lie before any other court or forum.

11. Order VII Rule 10(1) reads,

"Subject to the provisions of rule 10-A, 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."

12. Rule 10(1) of Order VII CPC on plain but careful reading would show that return of plaint by the court, on account of lack of jurisdiction to hear the suit, is not ceremonial to be followed in every such case. Plaint is required to be returned not simply because the court has no jurisdiction to hear the suit. It is returned for being presented to the court in which the suit should have been instituted. The underlying purpose of returning a plaint precisely is to enable the plaintiff to present the same plaint to the court of competent jurisdiction. This underlying purpose would give two fold jurisdictions even to the court which has no jurisdiction to hear a suit, that is, the court in which the suit has been

Click Here to Read the rest of this document