The petitioner is before this Court seeking for the

following reliefs:

i)

A writ in the nature of certiorari, quashing the impugned

order dated 28.11.2016 on I.A.No. I passed by the

Principal Civil Judge & JMFC, Mudhol in O.S.No.27/2016.

ii)

Any other writ, order or direction as deemed fit be

granted in the interest of justice.

The suit in O.S.No.27/2016 has been filed by the

petitioner herein who is the plaintiff therein against

the respondents herein who are the defendants

therein and certain other official parties seeking for

the following reliefs:

a)

Declaring that, the plaintiff is also entitle 50% share in all

legal benefit of Family Pension and (Army Group

Insurance Fund) AGI and other Legal Benefit arising out

of her son’s Death Shri. Anand Hanamant Pujer, (Army

No.6494754K Nk chef), who died on 06 Jun 2014. And by

successors to succeed and inherit the estate left by his

son along with Defendant No.1.

b)

A decree of mandatory injunction may kindly be issued to

the Defendant No.2, 3, 4, 5 and 6 directing them to pay

to plaintiff 50% share amount, as legal heir for Family

pension, AGI fund, and other legal Benefits as per legal

heirs entitle and act accordingly.

c)

Any other relief/s to which the Plaintiffs are found entitled

to;

d)

Full costs of this suit be awarded;

e)

Permission

to

amend

the

plaint

as

and

when

circumstances warrant may kindly be granted;

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In the said suit the written statement came to be

filed wherein it is contended that the said Court does

not have pecuniary jurisdiction to try the matter.

An application under Order XXXIX Rule 1 and 2 of the

Code of Civil Procedure, 1908 in I.A.No. I filed in the

said suit seeking injunction restraining the defendant

No.2 from releasing any amount to defendant No.1

from and out of the account maintained by

defendants No.2, 3, 4, 5, and 6 from disbursing any

amount from and out of the dues available out of the

account of one Anand who is the son of the plaintiff

and husband of the defendant No.1.

The Trial Court vide its order dated 28.11.2016

rejected I.A.No. I on the ground that it had no

pecuniary jurisdiction. It is aggrieved by the same

the petitioner is before this Court.

Sri. S.B.Hebballi, learned counsel for the petitioner

would submit that the Trial Court could not have

- 5 -

rejected I.A.No. I and thereby, virtually dismissed

the suit without following the requirements of Rule

10 of Order VII of the CPC as also of Rule 10A of

Order VII of the CPC. The impugned order having

rejected I.A.No.I, no further date has been passed in

the matter amounting to dismissal of the suit itself

which should not have been done only on the basis

of the said Court not having pecuniary jurisdiction. At

the most, the plaint could have been returned on the

ground of lack of pecuniary jurisdiction and to be

presented before the Court of proper jurisdiction.

7.

Per contra, Sri. Gurudev Gachchinmath, learned

counsel for respondent No.1 would submit that the

order passed by the Trial court is proper and correct

and there is interference required of this Court.

8.

Sri. M.B.Kanavi, learned counsel for respondents

No.3, 5 and 6 submits that they are formal official

parties and any order passed by this Court would be

followed by them.

- 6 -

9.

Heard Sri. S.B.Hebballi, learned counsel for the

petitioner, Sri. Gurudev Gachchinmath,

learned

counsel for respondent No.1 and Sri. M.B.Kanavi,

learned counsel for respondents No.3, 5 and 6.

Perused papers.

10.

It is the peculiar case where an application filed

under Order XXXIX Rule 1 and 2 of the CPC has been

rejected on the ground that the Court does not have

pecuniary jurisdiction. While doing so, no further

date has been passed. It is deemed that the suit

itself has been dismissed.

11.

Rule 10 of Order VII of the CPC is reproduced

hereunder for easy reference:

“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 b