Delhi High Court
Vijay Kumar Sachdev And Another vs Baldev Raj Bhutani And Another on 12 February, 1992
Equivalent citations: AIR1992DELHI233, 46(1992)DLT474, 1992(22)DRJ283, 1992RLR121, AIR 1992 DELHI 233, (1992) 22 DRJ 283, (1992) CIVILCOURTC 579, (1992) 2 LANDLR 49, (1992) 1 CURCC 612, (1992) 46 DLT 474
ORDER
1. This revision petition is directed against the order dated 6th March, 1991 passed by Shri Prem Kumar, Commercial Sub Judge, Delhi whereby the suit of the plaintiff (Shri Amar Nath Sachdev) has been dismissed for want of pecuniary jurisdiction.
2. Facts leading to the revision petition are that the plaintiff (Shri Amar Nath Sachdev) filed a suit for declaration before the trial court on the ground that the plaintiff is the owner of premises No. T 29-C-1, Road No. 20, Baljit Nagar, New Delhi and for injunction restraining the defendants-respondents from selling, alienating or parting with possession of the premises in dispute. According to the plaintiff, he permitted purely on compassionate ground his daughter (defendant No. 2) and son-in-law (defendant No. 1) to live in the premises in dispute. However, the defendants have started quarrelling with him and now they are claiming that they are the owners of the house on the basis of a forged agreement to sell, stated to have been signed by the plaintiff with the defendants and the defendants now are threatening to sell the property and hence the suit.
3. The trial court framed and tried two preliminary issues, namely:
"i) Whether this court has jurisdiction to try the suit?
ii) Whether the suit as framed is maintainable?"
4. On having found that the value of suit for the purposes of court-fee and jurisdiction is Rs. 1,50,000/ -, the trial court dismissed the suit on the ground that it has no pecuniary jurisdiction to try the suit. The present revision petition has arisen out of this order of the trial court.
5. Learned counsel for the petitioners (legal representatives of deceased Shri Amar Nath Sachdev) submitted that the suit should not have been dismissed for want of pecuniary jurisdiction but under Order 7 Rule 10 of the Code of Civil Procedure, it should have returned the suit to be presented to the court in which the suit should have been instituted. Order 7 Rule 10 of the Code of Civil Procedure reads as under:
"Return of plaint.
10. (1) Subject to the provisions of rule I OA, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted."
Learned counsel for the respondents does not dispute the contention made on the behalf of learned counsel for the petitioners. However, he submitted that the present revision petition is not maintainable as appeal lies against an order passed under Order 7 Rule 10, under Order 43 Rule l(a) of the Code of Civil Procedure. Even otherwise, since the suit has been dismissed and a decree has been passed, the only remedy available to the petitioners is to prefer an appeal against the order and not -the revision petition and hence the revision petition merits dismissal.
6. -It is no doubt true that Order 7 Rule 10 provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Once the Court has held that it has no pecuniary jurisdiction, it should not have dismissed the suit but is bound to return it for presentation to proper Court. The impugned order should be construed as an Order 7 Rule 10 of the Code of Civil Procedure. In Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, , the Supreme Court in paragraph 13 has observed that 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".
7. In these circumstances I have no hesitation to hold that the trial court should have returned the plaint under Order 7 Rule 10 of the Code of Civil Procedure for presentation to proper Court in accordance with the law and it should not have dismissed the suit.
8. The next question that arises for consideration in this case is when an appeal lies against a decree passed under Order 7 Rule 10 or otherwise, whether revision petition is competent.
9. No doubt the proper remedy should be appeal but the right of the High Court to exercise its revisional jurisdiction is not taken away in appropriate cases to correct error that comes to its notice, under Section 115 of the Code of Civil Procedure or Article 227 of the Constitution. In Puranam. Venkata Lakshmamma v. T. J. Ratnam, the Andhra Pradesh High Court has also observed to the effect that "Assuming an appeal is competent, the right of the H;igh Court to exercise its revisional jurisdiction is not taken away tp correct error that comes to its notice under Section 115, C.P.C.thougyh it would hesitate to do so normally."
10. In the light of what is discussed above, therefore, set aside the impugned order, and direct the plaint to be returned to the plaintiff (petitioners - Legal representatives of the deceased plaintiff) for presentation before the appropriate Court under Order 7 Rule 10 o the Code of Civil Procedure in accordance with law.
11. Revision Petition is allowed. In the circumstances I make no order as to costs.
12. Petition allowed.