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Lal Bahadur Singh and anr. Vs. Bagesara and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 15 and 477 of 1978
Judge
Reported inAIR1984All231
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 - Order 7, Rules 10 and 11
AppellantLal Bahadur Singh and anr.
RespondentBagesara and ors.
Appellant AdvocateSankatha Rai, Adv.
Respondent AdvocateR.N. Singh, Adv.
DispositionAppeal dismissed
Excerpt:
.....in the suit. the suit was contested by the defendants on fads as well as on various legal groundsbut two main questions raised were about jurisdiction of civil court and abatement of the suit in view of section 5, u. 10. in the result both the appeals fail and are accordingly..........(supra) is that while holding that the court had no jurisdiction to decide the particular suit, no decision on merit on any point involved therein should be made. it, however, does not lay down that if the court has no jurisdiction then it had no right to dismiss the suit and must necessarily direct return of the plaint for presentation to the proper court. the view taken to the contrary in 1983 rev dec 185 : (air 1983 all 145), therefore, does not appear to be wholly correct. in every case, it has to be seen whether on the allegations made in the plaint the suit was not maintainable in the civil court if so, the plaint had to be returned. but if the question of jurisdiction depends on decision of other questions on merit, then it is not necessary that the court should always.....
Judgment:

N.N. Mithal, J.

1. At the very outset, I may dispose of an application for permission to file additional evidence in appeal. The document which is sought to be brought on record may be relevant on the merits of the controversy but has no relevance for the decision of the appeals before me which only involve question of jurisdiction. In the circumstances, the application is dismissed and the document be returned to the defendant-appellant.

2. According to the plaintiffs' allegations, the land in dispute was fixed rate tenancy of their mother prior to the abolition of Zamindari. On her death, the plaintiffs became her sole heirs. On 1-12-1946, a registered agreement was executed between the plaintiffs' father and the defendants according to which the defendants were permitted to plant some trees over the land and the produce and the wood thereof was to be shared amongst them equally. After the Zamindari abolition, the plaintiffs claimed to have become Bhumidhars of the land. As the defendants had failed to pay plaintiffs' share in the produce, a decree for Rupees 1,100/- and a declaration that they were the Bhumidhars of the land and that revenue entry in defendants' favour was incorrect were prayed for in the suit. The suit was contested by the defendants on fads as well as on various legal groundsbut two main questions raised were about jurisdiction of Civil Court and abatement of the suit in view of Section 5, U. P. Consolidation of Holdings Act,

The trial Court framed as many as 8 issues and recorded findings on all of them. It also came to the conclusion that the Civil Court had no jurisdiction to try the suit. In view of this finding, the plaintiffs' suit was dismissed. In appeal the lower appellate Court did not enter into discussion on any other issue and merely decided the issue of jurisdiction. It too came to the conclusion that the suit was not triable by the Civil Court. Accordingly it directed return of the plaint for presentation to the proper Court. Against this decision, both the parties have felt aggrieved and have filed those first appeals from order.

3. Sri Sankatha Rai, learned counsel appearing for the plainitffs-appellants, has, very rightly, not seriously urged on the merits of the finding that Civil Court had no jurisdiction to try the suit. He has only confined his submissions to defend and justify the order passed by the lower appellate Court and for this he has placed reliance on a single Judge decision of this Court in Gulab v. Jaggan Ram Singh, 1983 Rev Dec 185 : (AIR 1983 All 145). On the other hand, Sri R.N. Singh, learned counsel for the defendant-appellant, has urged that where any suit had been heard on merits by the trial Court and all the issues had been thrashed out, the Court cannot direct return of the plaint and the only course open to it then was to dismiss the suit even if it finds that it had no jurisdiction to take cognizance of the suit. He assailed the correctness of the order under appeal on this ground. He relies upon another single Judge decision of this Court in Devi Datt Sharma v. Teg Singh, 1979 All LJ 1086 and an unreported decision by Hon'ble the Chief Justice in F.A.F.O. No. 483 of 1982 Sukhraj v. Nageshwar Ram decided on 11-8-1982. In both these cases having held that Civil Court had no jurisdiction the suit itself was dismissed instead of ordering return of the plaint.

4. I have heard learned counsel for the parties at length. Ordinarily it is for the plaintiff in each case to choose his own forum for filing the suit. In doing so he must allege such material facts as will, on proof thereof, enable the Courtto sustain it. If on the basis of those allegations, a suit can prima facie be maintained in the Civil Court, the Court will proceed further with such a plaint and give an opportunity to the defendant to contest it. If, however, on the basis of the evidence led before it, the Court ultimately finds that the plaintiff had succeeded in proving essential jurisdictional facts, it would proceed to decide the controversy on merits. If, on the contrary, the Court finds that plaintiffs allegations were not true and the suit was not cognizable by the Civil Court, it would normally dismiss the same.

5. A perusal of the provisions of Civil P. C. would show that under Order 7, Rule 10, C. P. C., the Civil Court can order return of the plaint for presentation to the proper Court at any stage if, on the face of plaint allegations, it finds that it was not competent to entertain the same by reason of limitation of its territorial, pecuniary or inherent jurisdiction. Similarly, where any suit cannot be entertained due to a bar created under any statute, the Court may likewise reject the plaint in view of any of the contingencies mentioned in Rule 11. Even in a contested suit, if the defendant raises the plea of jurisdiction, the Court has two options before it; it may either frame a preliminary issue on the question if that matter can be determined on plaint allegations and dispose it of first or if this cannot be done, it may frame all other issues also and let the parties go to trial and then dispose of the suit including the question of jurisdiction. If the Court chooses the first alternative, it should not enter into the merits and should dispose of the suit only on the question of jurisdiction, either on the basis of averments made in the plaint or after recording evidence of the parties on that issue alone. However, where the second course is adopted and evidence on all issues, including that of jurisdiction, is recorded, the Court may dispose of the suit either on merits or on the question of jurisdiction.

6. The question that has been canvassed before me is about the form of the order that ought to be passed by the Court in such cases. No difficulty arises when an order for return of the plaint under Order 7, Rule 10, C. P. C., or of rejection of the plaint under Rule 11, is passed. The real difficulty arises in the other cases. According to Sri R.N.Singh, when once the Court enters upon adjudication of all the controversies of merit, the Court has no option left but to finally determine all these issues and if it finds that it has no jurisdiction in the matter, it must dismiss the suit instead of ordering return of the plaint for presentation to the proper Court. Sri Sankatha Rai, on the other hand, contended that once the Civil Court finds that it had no jurisdiction, it must stay its hands at once and should order return of the plaint without further venturing to decide any other issue or to express its opinion on merits. According to the following rule laid down in Athmanath Swami Devasthanam v. K. Gopala-swami Ayyangar : [1964]3SCR763 .

'When the Court had no jurisdiction over the subject matter of the suit, it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.'

He contended that return of the plaint was the only proper course for the Court.

7. This case was referred to by the learned single Judge who decided the case of Devi Datt Sharma (1979 All LJ 1086) (supra) also. According to the learned Judge where the Court, as a matter of caution, records all findings on issues touching merits of the controversy in addition to the issue of jurisdiction, the order has to be of return of plaint because the other findings in such a case have no legal effect. These are recorded only for facilitating the higher Courts and avoidance of a remand in case they come to a different conclusion on the question of jurisdiction. After briefly referring to the above Supreme Court decision, the learned Judge proceeded to consider an earlier Full Bench decision of this Court in Smt. Ananti v. Chhannu : AIR1930All193 and held that if after going to the trial of the suit on all the issues the Court ultimately holds that it had no jurisdiction in the matter, it must result in an order of dismissal of the suit. It may, however, be mentioned here that in Smt. Ananti's case, the controversy was raised in an altogether different manner and the facts were also quite different. There a suit had been filed in the Civil Court and after the written statement had been filed, the Munsif entertained a serious doubt as towhether the Civil Court could take cognizance of the suit. He, therefore, framed two questions and made a reference to the High Court. It was while answering the reference that the Full Bench had made the following observations which are also quoted by the learned Judge in his decision (1979 All LJ 1086).

'The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen. If he framed his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief, on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief. But we are told that although the plaintiff has chosen his forum rightly, the defendant, if he so wishes, may, merely by saying something in his defence-something the correctness of which he need not take the trouble to establish, oust the jurisdiction of the Court and compel the plaintiff to go to another Court.'

8. What has been decided by the Supreme Court in Devasthanam's case : [1964]3SCR763 (supra) is that while holding that the Court had no jurisdiction to decide the particular suit, no decision on merit on any point involved therein should be made. It, however, does not lay down that if the Court has no jurisdiction then it had no right to dismiss the suit and must necessarily direct return of the plaint for presentation to the proper Court. The view taken to the contrary in 1983 Rev Dec 185 : (AIR 1983 All 145), therefore, does not appear to be wholly correct. In every case, it has to be seen whether on the allegations made in the plaint the suit was not maintainable in the Civil Court if so, the plaint had to be returned. But if the question of jurisdiction depends on decision of other questions on merit, then it is not necessary that the Court should always return the plaint. The Court has a discretion either to dismiss the suit after recording a finding that it had no jurisdiction and may in appropriate cases also direct return of the plaint without dismissing the same. It will depend upon the facts of each case arid the broad principles have been rightly laid down In the Full Bench decision in Smt. Ananti's case (supra). Applying the principles laid down therein to the facts of the present case, I find that the order passed by the Court below was eminently justified and it was not incumbent on the Court to have dismissed the suit. The lower appellate Court has rightly directed that the plaint should be returned for presentation to the proper Court after recording a finding that the Civil Court had no jurisdiction in the matter.

9. After the arguments in the appeal had been heard, an application was moved by the defendants-appellants disclosing that rights of the parties have been finally determined by the Deputy Director of Consolidation in his decision dated 26-7-1983. The learned counsel has urged that since it has been finally determined that the defendants are the Sirdars of the land in question, no useful purpose would be served by return of the plaint now. Learned counsel for the plaintiff-appellant, however, has urged that the decision has not become final and it was proposed to challenge it in the writ petition. Be that as it may, I do not think that decision by the Deputy Director of Consolidation should either way affect the decision of this Court. If that decision becomes final and binding between the parties, after the return of the plaint, the plaintiffs' suit in the revenue Court would not be maintainable in view of the final decision in the consolidation proceedings. The application is, therefore, disposed of accordingly.

10. In the result both the appeals fail and are accordingly dismissed. However, the parties are directed to bear their own costs in both the appeals.


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