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ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Smt. Khursheeda —Petitioner
versus
State of U.P. and Ors. —Respondents
Matters under Article 227 No.3552 of 2017
Decided on 17.7.2017
Counsel for the Parties:
For the Petitioner:Akhilesh Chandra Shukla, Advocate
For the Respondents: S.C.
IMPORTANT POINT
Date of presentation of plaint in Court of competent jurisdiction would be date of institution of suit.
Headnote:Civil Procedure Code, 1908—Section 24(5) and Order VII Rule 10—Return of plaint—Date of presentation of plaint in Court of competent jurisdiction would be date of institution of suit—Defendants raised objections with regard to valuation of suit and said objections have been sustained by Court of Civil Judge, (Junior Division)—Presentation of a plaint in proper Court after it is returned by an earlier Court is not a continuation of suit which was instituted in wrong Court—Date of institution of earlier suit filed before Court which lacked jurisdiction cannot be treated as the date of institution of second suit which would be the date of presentation of plaint in Court of competent jurisdiction, after return of plaint—Subsequent suit after return of plaint cannot be treated as continuation of previous suit—Institution of suit by plaintiff before Court of Civil Judge (Junior Division) cannot said to be a proper presentation of plaint—Question of transfer under Section 24 (5) of CPC does not arise at all—Transfer petition dismissed—It would be open for petitioner to plead for return of plaint Order 7, Rule 10 of CPC before Court for its presentation to proper Court. (Paras 3, 4, 6, 7, 8 and 10)
Result: Petition dismissed.
Sunita Agarwal, J.—The order dated 25.4.2017 passed by the District Judge, Baghpat in the transfer application filed under section 24 of the Civil Procedure Code namely Misc. Case No. 35 of 2017 (Smt. Khursheeda v. Smt. Santosh and others), is under challenge. The contention of the learned Counsel for the petitioner is that the District Judge, Baghpat had jurisdiction to transfer the suit before the appropriate Court i.e. the Court of Civil Judge, (Senior Division), Baghpat, in exercise of powers under section 24 (5) of the Code of Civil Procedure. There was no justification to ask the petitioner to request for return of plaint under Order 7, Rule 10 and institute the same before the appropriate Court. Reliance is placed upon the judgment of Kandarp Construction India Pvt. Ltd. v. Brijesh Pathak and others reported in 2016 (11) ADJ 118.
2. On a question of jurisdiction being raised by the defendant, an application under Order 7, Rule 10 C.P.C. was moved by the plaintiff which was kept pending and order of status quo had been passed by the Court of Civil Judge, (Junior Division), Court No. 1, Baghpat. Ultimately, it was found by the Civil Judge, (Junior Division), Baghpat that the valuation of suit was approximately 14 lakhs and, therefore, it was incompetent to try the same. The plaintiff instead of asking for return of the plaint, moved a transfer application under section 24 of Code of Civil Procedure. The District Judge, Baghpat has rejected the same saying that as the suit itself was incompetent, it cannot be transferred.
3. Considering the submissions of learned Counsel for the petitioner and having perused the record, it is more than apparent that the defendants raised objections with regard to the valuation of the suit and the said objections have been sustained by the Court of Civil Judge, (Junior Division), Baghpat.
4. Order 4, Rule 1 C.P.C. provides for the institution of the suit by presenting a plaint to the Court. The “Court” means the Court of competent jurisdiction. When a plaint is presented in a Court lacking in jurisdiction or proper valuation of the plaint is not disclosed, the Court may reject the plaint under Order 7, Rule 11 or return it for presentation under Order 7, Rule 10 before the appropriate Court wherein the suit ought to have been instituted as the valuation of the suit is directly linked with the jurisdiction of the Court. It is only on the presentation of the plaint in the Court of competent jurisdiction, it will be deemed that the suit had been instituted. The date of presentation of the plaint in the Court of competent jurisdiction would be the date of institution of the suit.
5. Learned Counsel for the petitioner though denied the fact of filing of the application under Order 7, Rule 10 C.P.C., however, looking to the admitted fact of the case that the suit itself was incompetent and ought to have been instituted before the Civil Judge, (Senior Division), Baghpat, this Court does not find any justification to interfere. It is open for the petitioner/plaintiff to plead the Court concerned for return of the plaint for its proper presentation/institution before the Court of competent jurisdiction.
6. It is held by the Apex Court in the case of Amar Chand Inani v. Union of India, AIR 1973 SC 313, that presentation of a plaint in proper Court after it is returned by an earlier Court is not a continuation of the suit which was instituted in the wrong Court. The word “Court” means a proper Court which has jurisdiction to entertain the suit. In Hanamanthappa and another v. Chandrashekharappa and others, 1997 (2) Supreme 610: (1997) 9 SCC 688 it has been held that the plaint was returned for presentation to the proper Court, it would be a fresh plaint and not a continuation of the earlier proceeding.
7. In ONGC v. Modern Constructions & Co., 2013 (7) Supreme 247: (2014) 1 SCC 648, the Supreme Court has said that after return of plaint, presentation thereof before the Court of competent jurisdicti
