Advocates:
['Shriya Mishra', '', 'KISHORE BHADURI', 'PAWAN KESHARWANI', 'Swati Upadhyay', 'Sunny Agrawal', 'ASHISH SHRIVASTAVA', '', 'ANURAG VERMA', 'Ankur kashyap', 'ANIMESH VERMA', 'KRISHNARAJ MISHRA', 'ANSHUMAN RABRA', 'AFROJ KHAN', 'SOUMYA RAI', 'MEDHA SHRIVASTAVA']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WP227 No.431 of 2018

Subhash Pandey, S/o Late Jainarayan Pandey, Aged about 60 years, R/o

Nayapara, District and Tehsil Raipur (CG)

----Petitioner

Versus

1. Ram Kumar Dewangan, S/o Late Tavar Singh Dewangan, R/o Village

Post Kunwargarh (Kunra), Abadi kshetra, Opposite Sardar Jeet

Singh's house, Former Tehsil Dharsinwa, District Raipur (CG)

2. Smt. Usha Pandey, W/o Late Suryanarayan Pandey, aged about 65

years, R/o Nayapara, District and Tehsil Raipur (CG)

---- Respondents

For Petitioner

:

Ms Shriya Mishra, Advocate

For Respondent No.1

:

Ms Medha Shrivastava, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board

28/08/2018

1.

The suit was originally instituted by the petitioner/plaintiff before

the Second Civil Judge Class-I, Raipur for eviction, recovery of

possession and damages, in which the plaintiff led his evidence

and concluded his evidence. Thereafter, on 28.2.2013 the trial

Court returned the plaint finding it beyond its pecuniary jurisdiction

for Re-presentation to the court having jurisdiction. Thereafter, it

was Re-presented before the Fourth Additional Judge to the Court

of First Additional District Judge, Raipur in accordance with law.

That suit was entertained and thereafter defendant No.2 was also

noticed. During pendency of the suit, the petitioner/plaintiff filed

an application under Section 151 of the CPC stating inter-alia that

he has already led his evidence, therefore, further evidence is not

necessary and the suit be disposed of so far as the plaintiff is

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concerned on the basis of evidence adduced by him, which was

opposed by defendant No.1 by filing reply stating inter-alia that the

suit has been Re-presented after return of plaint in the Court of

competent jurisdiction. Firstly, it should be treated as freshly

presented suit and secondly, evidence is required to be taken

afresh. The trial Court by its impugned order rejected the

application filed by the petitioner/plaintiff under Section 151 of the

CPC by holding that since the suit has been Re-presented in the

Court of competent jurisdiction after return of plaint, it should be

treated as freshly presented suit and therefore, the plaintiff is

required to lead his evidence afresh. Feeling aggrieved against that

order, this writ petition has been filed by the petitioner/plaintiff

herein.

2.

Ms Shriya Mishra, learned counsel for the petitioner/plaintiff, would

submit that since evidence has already been led by the

petitioner/plaintiff, therefore, he is not required to lead

fresh/further evidence and the trial Court be directed to proceed

from the stage at which the suit stood transferred to the present

Court and the impugned order passed by the trial Court deserves

to be set aside.

3.

Ms Medha Shrivastava, learned counsel for the respondent

No.1/defendant No.1, would submit that since it is freshly

presented suit and normally when the plaint is directed to be

returned for presentation to the proper court, it has to start from

the beginning and the parties are required to lead their evidence

afresh as defendant No.2 also be arrayed in the suit, as such, the

trial Court is absolutely justified in directing for trying the suit

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denovo.

4.

I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

records with utmost circumspection.

5.

It is well settled that return of the plaint for presentation before the

court of competent jurisdiction amounts to institution of fresh suit,

requiring commencement of trial afresh even if same had

concluded before court which had no jurisdiction and the latter suit

cannot be considered a continuation of earlier suit and trial is to be

concluded de novo. The Supreme Court in the matter of Oil and

Natural Gas Corporation Limited v. Modern Construction

and Company¹