An order returning a plaint for lack of jurisdiction under Order 7 Rule 10 of the CPC is not a decree and thus not appealable via a regular first appeal under Section 96 CPC, but rather must be challenged through a miscellaneous appeal under Order 43 Rule 1(a) of the CPC.

Hon’ble Shri Justice Rakesh Mohan Pandey

CAV JUDGMENT

1. The defendants No.1 to 10 have filed this appeal against judgment and decree passed by the learned IVth Additional District Judge, Ambikapur, Surguja in Civil Appeal No. 146A/2002 dated 31.03.2003, whereby appeal preferred by the plaintiffs was decreed and judgment passed by the learned Trial Court dated 01.04.2000 was set-aside.

2. This appeal was admitted for hearing vide Order dated 26.10.2017 on following substantial question of law :-

“Whether the lower appellate Court has erred in entertaining appeal preferred under Section 96 of the CPC against order for return of plaint under Order 7 Rule 10 of the CPC?”

3. The original plaintiff Badi Kanwar filed a civil suit for declaration of title to the extent of ½ share of the property described in Schedule A of the plaint and also sought relief of partition and separate possession. Further relief was sought that sale deeds executed by late Baldev in favour of different individuals to be declared inoperative and not binding upon him and the order of partition passed in the revenue Case No. 17-A 27/84-85 dated 12.06.1985 be declared bad in law.

4. The original plaintiff pleaded that the suit property was joint property along with plaintiff and ancestors of defendant No. 1 & 2 namely Baldev Kanwar.

5. The plaintiff Baldev Kanwar had acquired suit property as joint property, as a settlement patta was issued in their joint names showing their right and title to the extent of ½ – ½ share. Baldev died in the year 1986 and after his death, the plaintiff came to know that 24.13 acre of land was sold by Baldev Kanwar to the defendants No. 4 to 11. The defendants pleaded that the plaintiff was servant of Baldev Kanwar & he was looking after his agriculture work but his name was entered in the settlement patta. They pleaded that the purchasers of the suit property are in possession and they have perfected their title by way of adverse possession. They also pleaded that 5 houses are built over the part of the suit property and value of those houses are near about Rs. 80,000, therefore, the trial Court has no pecuniary jurisdiction to try the suit. Further, on account of improper valuation and non-payment of requisite Court fee the suit is not maintainable. The trial Court framed 9 issues; parties led evidence and thereafter plaint was returned while deciding issue No.7 with regard to valuation of the suit.

6. Trial Court recorded specific finding that suit was not properly valued and it affect pecuniary jurisdiction of the Court, therefore, no decree can be passed and drawn the following decree:-

“Okkn dk ewY;kadu mfpr :Ik ls ugh fd;k x;k gS] ewY;kadu ds vuqlkj bl U;k;ky; dks okn lquokbZ djus dk {ks+=kf/kdkj ugh gS blfy, okn esa dksbZ vkKfIr iznku fd;k tkuk mfpr gksxk cfYd l{ke U;k;ky; esa is’k djus gsrq vkns’k 7 fu;e 10 ok0 iz0 la0 ds rgr okil fd;k tkuk mfpr gksxkA rn~uqlkj fuEufyf[kr vkKfIr iznku dh xbZ :- 1. oknh 7 fnu ds vanj okn okil izkIr dj l{ke U;k;ky; esa is’k dj lDsgk A vr% okn oknh dks okil fn;k tkos A 2. bl okn dk okn O;; oknhx.k viuk Lo;a ogu djsaxsA rFkk izfroknh x.k dk Hkh leLr okn O;; vnk djsaxsA”

7. The learned Trial Court invoking power contemplated under Order 7 Rule 10 of the CPC directed the plaintiff to present the plaint before the proper Court within a period of 7 days. The plaintiff filed regular appeal under Section 96 of the CPC before the Court of IVth Additional District Judge, Ambikap