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CPC O 7 R 10

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Civil Procedure Code, 1908, (V of 1908) Order VII Rule 10 and 10A - If a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint – Suit has to proceed afresh before the proper court.

Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502, distinguished. Supreme Court directed High court to proceed from that stage at which the suit stood transferred. The directions came to be made more in the peculiar facts of the case in exercise of the discretionary jurisdiction under Article 136 of the Constitution. [Para 13] 

Oriental Insurance Company Ltd. v. Tejparas Associates and Exports Pvt. Ltd., (2019) 9 SCC 435, following Joginder Tuli, does not lay down the correct law and over­rule the same.  [Para 21]

Oil and Natural Gas Corporation Ltd. v. Modern Construction & Co., (2014) 1 SCC 648, upheld. Wherein it was held that ““17. 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 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. .......... 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.” Was pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli (supra). Modern Construction (supra) lays down the correct law. [Para 15, 16]

Facts,

Suit for recovery filed at Gurgaon - Exclusion clause in the agreement –  Appellant did not raise the objection under clause 16B of the agreement at the very first opportunity, the first order of rejection attained finality, the objection under clause 16B was raised more as an after­thought, the second application under Order VII Rule 10 had to be preferred by the respondent, that pleadings of the parties have been completed, evidence led, and that the matter was fixed for final argument on 03.07.2017 -  In second application , plaint was returned holding that the court at Gurgaon lacked territorial jurisdiction and that the court at Delhi alone had jurisdiction in the matter - High Court in revisional jurisdiction  held that the suit at Delhi shall proceed from the stage at which it was pending at Gurgaon before return of the plaint and not de novo - High Court directed for return of the file and not return of the plaint – Suit at stage of final arguments as evidence of the parties had been closed –  In the peculiar facts and circumstances of the case,  we are of the considered opinion that despite having concluded that the impugned order is not sustainable in view of the law laid down in the Modern Construction (supra), in exercise of our discretionary jurisdiction under Article 136 of the Constitution and in order to do complete and substantial justice between the parties under Article 142 of the Constitution in the peculiar facts and circumstances of the case nonetheless we decline to set aside the impugned order of the High Court holding that the suit at Delhi shall proceed from the stage at which it was pending at Gurgaon before return of the plaint and not de novo. 

 

(ii) Civil Procedure Code, 1908, (V of 1908) Order VII Rule 10 and 10A – Return of file or Return of the plaint - High Court in revisional jurisdiction  held that the suit at Delhi and not Gurgaon shall proceed from the stage at which it was pending at Gurgaon before return of the plaint and not de novo - High Court directed for return of the file – Mere use of the words ‘return the file’ cannot enlarge the scope of jurisdiction under Order VII Rule 10 to mean that the High Court has directed so with the intention for continuance of the suit - Order itself stated that the file be returned under Order VII Rule 10 and 10A of the Code -  Clearly what the High Court intended was the return of the plaint. 

 

(iii) Civil Procedure Code, 1908, (V of 1908), Order VII Rule 10-A and Section 24(2) and Section 25(3)  - Distinction - In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo. 

 

(iv) Constitution of India, Article 136 – Civil Procedure Code, 1908, (V of 1908) Order VII Rule 10 and 10A – In the peculiar facts and circumstances of the case, because the appellant did not raise the objection under clause 16B of the agreement at the very first opportunity, the first order of rejection attained finality, the objection under clause 16B was raised more as an after­thought, the second application under Order VII Rule 10 had to be preferred by the respondent, that pleadings of the parties have been completed, evidence led, and that the matter was fixed for final argument on 03.07.2017, we are of the considered opinion that despite having concluded that the impugned order is not sustainable in view of the law laid down in the Modern Construction (supra), in exercise of our discretionary jurisdiction under Article 136 of the Constitution and in order to do complete and substantial justice between the parties under Article 142 of the Constitution in the peculiar facts and circumstances of the case nonetheless we decline to set aside the impugned order of the High Court dated 13.03.2018. 

 

 

(v) Contract  - Exclusive jurisdiction  - No more res ­integra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013-3)171 PLR 789 (SC),  (2013) 9 SCC 32, relied. State of West Bengal v. Associated Contractors, (2015) 1 SCC 32, referred. 

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