TMI Blog2013 (10) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Respondent to be completed on or before 8.8.1984 vide agreement dated 9.2.1984. The Respondent completed the work with an inordinate delay and possession could be taken by the Appellant only on 31.6.1985. The Respondent filed Civil Suit Nos. 60, 61 and 62 of 1986 against the Appellant in the Civil Court at Mehsana to recover the outstanding dues from the Appellant. B. The Civil Court vide judgment and decree dated 31.1.1994 allowed Civil Suit Nos. 61 and 62 of 1986 in favour of the Respondent. C. Aggrieved, the Appellant filed First Appeal Nos. 1451, 1452 and 1453 of 1994 before the High Court of Gujarat challenging the said judgment and decree dated 31.1.1994. The High Court vide common judgment and order dated 18.3.1997 held that the Civil Court at Mehsana did not have territorial jurisdiction to entertain the suits. Therefore, the said judgment and decrees passed in the civil suits were set aside and the Civil Court at Mehsana was directed to return the plaints to the Respondent so that the same may be presented before the appropriate court having jurisdiction. D. The plaints were returned to the Respondent in the aforesaid civil suits, who instituted the same bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Therefore, the order of the High Court has to be understood to have been passed in view of the provisions of Order VII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'Code of Civil Procedure') and not a case of transfer of a suit from the Court at Mehsana to the Civil Court, Surat. Once the plaint is presented after being returned from the court having no jurisdiction, it is to be treated as a fresh suit and even if the trial was conducted earlier, as in the instant case, it had to be done de novo. The only protection could be to take advantage of the provisions of Section 14 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act') and the court fees paid earlier may be adjusted but by no stretch of imagination it can be held to be a continuation of the suit. Had it been so there would be no occasion for the High Court to set aside the judgment and decree of the civil court at Mehsana at such a belated stage. Thus the impugned judgment and order is liable to be set aside. 4. Per contra, Shri Santosh Krishnan, learned Counsel appearing for the Respondent has submitted that in fact, the suits had been instituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. In Ramdutt Ramkissen Dass v. E.D. Sassoon and Co. AIR 1929 PC 103, a Bench of Privy Council held: ...It is quite clear that where a suit has been instituted in a court which is found to have no jurisdiction and it is found necessary to raise a second suit in a court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject matter and the parties to the suits were identical.... (Emphasis added) 8. In Sri. Amar Chand Inani v. Union of India AIR 1973 SC 313, the issue involved herein was considered and this Court held that in such a fact-situation, where the plaint is returned under Order VII Rule 10 Code of Civil Procedure and presented before the court of competent jurisdiction, the Plaintiff is entitled to exclude the time during which he prosecuted the suit before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act and by no means it can be held to be continuation of the earlier suit after such presentation. 9. In Hanamanthappa and Anr. v. Chandrashekharappa and Ors. AIR 1997 SC 1307, this Court reiterated a similar view rejecting the contention that once the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction. 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 Code of Civil Procedure and the Plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the Plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same. 14. There can also be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the Respondent observing that the Respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the wrong doer cannot get benefit of its own wrong i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the Respondent observing that a public undertaking cannot be penalised for the mistake committed by the Plaintiff by choosing a wrong forum . Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the Respondent cannot be allowed to take advantage of the words from the date of the suit , and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the Plaintiff/Respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
