Case Note & Summary
The petitioners, original defendants in Special Civil Suit No. 8/2013, challenged an order dated 4th April 2015 passed by the 2nd Joint Civil Judge Senior Division, Beed, rejecting their application (Exh. 64) seeking return of proceedings from Special Civil Suit No. 115/2009 to the Court of Civil Judge Senior Division, Barshi, and for permission to file a fresh written statement. The suit had originally been filed before the Civil Judge Senior Division, Barshi, but was returned for lack of jurisdiction and re-filed in the correct court at Beed. The petitioners argued that upon return of plaint, the suit must be tried de novo, while the respondents contended that since evidence had already been recorded before the earlier court, the suit should proceed from that stage. The court, relying on the Supreme Court decision in Harshad Chimanlal Modi (II) v. DLF Universal Ltd., held that the issue was no longer res integra and that the suit must be tried de novo by the correct court. The impugned order was quashed and set aside, and the trial court was directed to proceed with the suit de novo, allowing the petitioners to file a fresh written statement and the respondents to furnish copies of documents. The writ petition was allowed.
Headnote
A) Civil Procedure - Return of Plaint - De Novo Trial - Order 7 Rule 10, Code of Civil Procedure, 1908 - The question was whether a suit, after being returned for lack of jurisdiction and re-filed in the correct court, should be tried de novo or from the stage it had reached before the earlier court. The court held that upon return of plaint, the suit must be tried afresh by the correct court, as the earlier proceedings before a court without jurisdiction are void. The trial court's order rejecting the application for de novo trial was set aside. (Paras 4-6)
Issue of Consideration
Whether a suit instituted upon presentation of plaint to a correct court after its return from a court not having jurisdiction should be tried de novo or from the stage at which it was pending before the earlier court.
Final Decision
The writ petition is allowed. The impugned order dated 4th April 2015 is quashed and set aside. The trial court is directed to proceed with the suit de novo, permitting the petitioners to file a fresh written statement and the respondents to furnish copies of documents. Rule made absolute accordingly.
Law Points
- Return of plaint for lack of jurisdiction
- De novo trial
- Order 7 Rule 10 CPC
- Section 15 CPC
Case Details
2017 LawText (BOM) (02) 25
Writ Petition No. 7700 of 2015
Mr. G.K. Naik Thigale for petitioners, Mr. N.R. Kalshetti for respondent nos. 1 to 3
Shri Gajanan Sahakari Sakhar Karkhana Ltd. and others
M/s Yashsree Engineering Works and others
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Nature of Litigation
Civil writ petition challenging an order rejecting an application for return of proceedings and de novo trial.
Remedy Sought
Petitioners sought quashing of the order dated 4th April 2015 and direction for de novo trial, return of proceedings to the correct court, and permission to file fresh written statement.
Filing Reason
The trial court rejected the petitioners' application seeking return of proceedings from Special Civil Suit No. 115/2009 to the Court of Civil Judge Senior Division, Barshi, and for de novo trial.
Previous Decisions
The 2nd Joint Civil Judge Senior Division, Beed, rejected the application (Exh. 64) on 4th April 2015.
Issues
Whether a suit instituted upon presentation of plaint to a correct court after its return from a court not having jurisdiction should be tried de novo or from the stage at which it was pending before the earlier court.
Submissions/Arguments
Petitioners argued that upon return of plaint for lack of jurisdiction, the suit must be tried de novo by the correct court.
Respondents argued that since evidence had already been recorded before the earlier court, the suit should proceed from that stage in the interest of justice.
Ratio Decidendi
Upon return of plaint for lack of jurisdiction, the suit must be tried de novo by the correct court, as proceedings before a court without jurisdiction are void. The stage at which the suit was pending before the earlier court cannot be continued.
Judgment Excerpts
The question raised in this petition is whether the suit instituted upon presentation of plaint to a correct Court after its return from the Court not having jurisdiction should be tried de novo or should be tried from the stage at which it has been pending earlier before the Court not having jurisdiction over the subject matter.
The issue raised in this matter is no longer res integra.
Procedural History
The suit was originally filed as Special Civil Suit No. 115/2009 before the Civil Judge Senior Division, Barshi. It was returned for lack of jurisdiction and re-filed as Special Civil Suit No. 8/2013 before the 2nd Joint Civil Judge Senior Division, Beed. The petitioners filed an application (Exh. 64) seeking return of proceedings and de novo trial, which was rejected on 4th April 2015. The petitioners then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order 7 Rule 10, Section 15
