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Go. Neelahram v/s K. Sivaraman Alwa & Another

    O.S.A. No. 151 of 2014 & C.M.P. No. 9970 of 2017

    Decided On, 24 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. VENUGOPAL & THE HONOURABLE MR. JUSTICE M. NIRMAL KUMAR

    For the Appellant: N.C. Ramesh, Senior Counsel for E.J. Ayyappan, Advocate. For the Respondents: R. Yashod Varadhan, Senior Counsel for K. Rajasrinivas, Advocate.



Judgment Text

(Prayer: Appeal filed under Order 36 Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the Judgment and Decree dated 31.01.2014 passed by this Court in C.S.No.857 of 2009.)

M. Venugopal, J.

1. The Appellant/Plaintiff has preferred the instant Original Side Appeal (as an affected person) as against the Judgment dated 31.01.2014 in C.S.No.857 of 2009 passed by the Learned Single Judge in dismissing the Civil Suit.

2. The Learned Senior Counsel for the Appellant/Plaintiff submits that the Learned Single Judge in the main suit in C.S.No.857 of 2009 for the Issue No.1 viz., Whether this Court has territorial jurisdiction for deciding and trying the suit?, at para 10 of the Judgment had observed the following:

'10. In the present case, it is the case of the Plaintiff that the sale agreements Ex.P3 and Ex.P4 were executed at Chennai. In his evidence, he admitted that the agreements Ex.P3 and Ex.P4 do not state that they were signed at Chennai. Quite contrary to his statement, PW.2 Perumal one of the attestors to the agreements Ex.P3 and Ex.P4 has admitted in his cross examination that Ex.P3 and Ex.P4 were executed in Pondicherry. At this juncture, it has to be pointed out that the earlier suit filed by the Plaintiff in respect of the suit properties, on the basis of Ex.P3 and Ex.P4 was filed in Pondicherry Court. The Defendants neither resided nor carried on business nor did any part of the cause of action arise within the local limits of the jurisdiction of this Court. The Defendants have raised objection even at the first instance as to the place of suing and in spite of such objection, the Plaintiff proceeded with the suit.'

and resultantly, came to the conclusion that the contention of the Respondents/Defendants in the main suit as lack of territorial jurisdiction of this Court, was all merits and rendered a finding in favour of the Respondents and as against the Appellant/Plaintiff.

3. The Learned Senior Counsel for the Appellant refers to Order VII Rule 10 of the Civil Procedure Code and contends that as per Order V

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II Rule 10(1) under the caption 'Return of Plaint', subject to the provisions of rule 10A, 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. Furthermore, as per explanation to Order VII Rule 10(1) C.P.C. a Court of Appeal or Revision may direct, after setting aside the decree passed in a suit, the return of the Plaint under the sub-rule. In fact, Order VII Rule 10(2) C.P.C., enjoins 'Procedure on returning Plaint'.

4. To lend support to the contention that the Learned Single Judge, after rendering a finding to and in favour of the Respondents /Defendants for the Issue No.1 to the effect that 'the High Court lacks territorial jurisdiction to try the suit, ought to have passed an order for 'Return of Plaint' and in this regard, an opportunity should have been given to the Appellant/Plaintiff to take the 'Return of Plaint' as specified under Order VII Rule 10 C.P.C., but, unfortunately, in the present case, the Learned Single Judge had not passed necessary orders for the 'Return of Plaint' for the reasons aforestated and in this connection, the Learned Senior Counsel for the Appellant cites the decision of the Hon'ble Supreme Court in Kiran Singh and others V. Chaman Paswan and others, A.I.R. 1954 S.C. 340 at special 342 (Vol. 41, C.N. 82) wherein at paragraph 6, it is, inter alia, observed as follows:

'6.... It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, & that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice', and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position.'

5. The Learned Senior Counsel for the Appellant projects an argument that when once the Learned Single Judge in the main suit in C.S.No.857 of 2009 for the Issue No.1 had held that 'the High Court lacks territorial jurisdiction to try the suit', then, the Learned Single Judge should not have proceeded to deal with the other Issues viz., 2 to 8 and answered the same against the Appellant/ Plaintiff and resultantly, ought not to have dismissed the Civil Suit.

6. Advancing his arguments, the Learned Senior Counsel for the Appellant points out that the words 'at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted' under Order VII Rule 10(1) unerringly points out that a Plaint may be returned to be presented before the proper/ competent Court at any stage of the suit even after the trial has been commenced and concluded. To put it precisely, the words 'at any stage of the suit' would include within its purview the stage before filing of the written statement.

7. Per contra, it is the submission of the Learned Senior Counsel for the Respondents that the 1st Respondent/1st Defendant, in his Written Statement at paragraph 3(a), had taken a plea that 'the relief sought in the suit is in respect of immovable properties which are situated in Puducherry outside the territorial jurisdiction of the Hon'ble High Court'. Further, the 1st Respondent/1st Defendant, in the Written Statement, had also taken a plea that the suit filed by the Appellant/Plaintiff is barred under Order II Rule 2 C.P.C. Apart from that, the 1st Respondent/1st Defendant, in his Written Statement, had also inter alia averred at para 3(c) that the suit was instituted by the Appellant/Plaintiff in his individual capacity and not as an agent of Mrs.Manju Bonke and M/s.Aditi Diamonds Private Limited and hence, the suit is not maintainable as per provisions of Section 230 of the Contract Act, 1872.

8. The Learned Senior Counsel for the Respondents/ Defendants also brings it to the notice of this Court that the 1st Respondent/1st Defendant, in his Written Statement, had taken a stand that the registered General Power of Attorney dated 09.08.2006 executed by M/s.Aditi Diamonds Private Limited, an incorporated company, represented by its Chairman, Saphal Jhunjhunwala to and in favour of the Appellant/Plaintiff does not authorise the Plaintiff to institute the present suit. Moreover, the 1st Respondent/1st Defendant, in the Written Statement, had averred that 'even assuming that the suit has been instituted in Plaintiff's capacity as an erstwhile agent of Mrs.Manju Bonke and M/s.Aditi Diamonds Private Limited as on the date of the suit, the Plaintiff (Appellant) did not have the authority of Mrs.Manju Bonke and M/s.Aditi Diamonds Private Limited for instituting the suit.

9. Proceeding further, the Learned Senior Counsel for the Respondents/Defendants emphatically submits that there is no cause of action for the suit and the cause of action for the suit is a false, imaginary and invented one for the purpose of filing of the suit.

10. Be it noted that it is the prime duty of a Court of Law under Order VII of the Civil Procedure Code to examine a Plaint before issuing summons and to find out whether any cause of action was pleaded and whether any relief was claimed against the Defendants and to decide whether the Plaint should be rejected or returned for amendment as the case may be. For determining whether the Plaint discloses any cause of action or otherwise, a Court of Law is to take into consideration the averments made in the Plaint and the accompanying documents relied upon in the Plaint and the facts ascertained from the Plaintiff by examining him under Order X C.P.C.

11. It is to be pointed out that when the trial Court came to the conclusion that there is no territorial jurisdiction to try the suit before it, then, it ought to have provided an opportunity to the concerned Plaintiff to take the Return of the Plaint as per Order VII Rule 10 of the Civil Procedure Code.

12. It is to be pointed out that the ingredients of Section 16 of the Civil Procedure Code runs as under:

'16. Suits to be instituted where subject-matter situate.-

Subject to the pecuniary or other limitations prescribed by any law, suits –

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.'

13. Further, in respect of a suit for recovery of money for the construction works and damages, in a given case where the suit property is situated outside the jurisdiction of the Court, then, the Court has no jurisdiction to decide the suit. Moreover, a declaratory relief involving determination of rights to or interest in immovable property, then, the suit lies in the Court within whose local jurisdiction the property is situated, as per decision Priyanka Vivek Batra V. Neeru Malik & others, AIR 2009 (NOC) 260 (Delhi).

14. It may not be out of place for this Court to make a pertinent mention that an Agent holding Power of Attorney must be allowed to appear and act. But the Defendants may question his 'Authority'. A Power of Attorney Holder of Plaintiff can appear as a witness only in his personal/individual capacity. However, he cannot appear as a witness on behalf of the Plaintiff, in the capacity of Plaintiff, as per decision S.Padmavathamma V. S.Sudha Rani and others, AIR 2004 Andhra Pradesh 309, 310.

15. In so far as Section 230 of the Indian Contract Act, 1872 is concerned, it is to be mentioned that this Section in general speaks to the effect that no agent can maintain an action in his own name on any contract made by him as such, nor can he be personally sued on them, unless there is a contract to the contrary. Of course, an agent may sue, and be sued, in his own name on contracts made by him on behalf of his principal: (i) where he contracts personally; (ii) where he has a special property in, or lien upon the subject- matter of the contract, or has a beneficial interest in the completion thereof, the case of factors and auctioneers may be cited as instances; (iii) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (iv) where the agent does not disclose the name of the principal; (v) where the principal, though disclosed, cannot be sued. Besides this, an agent is not liable for the acts of a disclosed principal subject to a contract of the contrary.

16. Ordinarily, an 'Agent' contracting in the name of his principal and not in his own name is not entitled to sue nor he can be sued on such contract. But, the core issue is that whether an Agent, apart from the cases mentioned in Section 230 of the Indian Contract Act, 1872, is personally liable, depends on the intention of parties and the contract between the principal and the Agent, as per decision Orissa Textile Mills Limited V. Ganesh Das Ramkishan, AIR 1961 Patna 107.

17. At this stage, this Court worth recollects and recalls the decision in Md.Munawar Hussain V. M/s.Usha Kiran Chit Funds and others, AIR 2004 Andhra Pradesh 63 at special page 64, wherein at paragraphs 3, 6 & 7, it is observed as follows:

'3. The main point urged by the learned Counsel for the petitioner Mr. Kilaru Khader Baba is that the very institution of the suit by the respondents herein is contrary to Rule 32 of the Civil Rules of Practice. According to the learned Counsel for the petitioner, when once a suit is instituted by the agent on behalf of the principal as contemplated under Rule 32, an affidavit is to be filed and the Court below, only after permitting the said agent, can proceed further with the suit, and in this connection the learned Counsel has drawn my attention to Rule 32 of Civil Rules of Practice.

6. Before deciding the revision, it is necessary to extract Rule 32 as it is:

"Rule 32 - Party appearing by Agent :

(1) When a party appears by any agent, other than an advocate, the agent shall, before making of or doing any appearance, application, or act, in or to the Court, file in Court the power of attorney, or written authority, thereunto authorizing him or a properly authenticated copy thereof together with an affidavit that the said authority still subsisting, or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorized to make or do such appearance, application, or act.

(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and unless and until the said permission is granted, no appearance, application, or act, of the agent shall be recognized by the Court".

7. From the above said Rule it is clear that the agent, if he wants to prosecute any lis on behalf of the principal, has to file an affidavit initially and it is only after accepting the affidavit and permitting the said agent the Court can proceed further. Keeping the said Rule in mind, now I proceed to deal with the present revision.

18. Also, this Court aptly points out the decision of the Hon'ble Supreme Court in Ram Narain Prasad V. Atual Chander Mitra reported in 1994 (4) SCC 349 wherein it is observed and held that 'For computing the Court fee, the pleadings in the Plaint are to be taken into account and the defence projected in the statement is not a relevant factor'.

19. Indeed, the power of return in respect of a Plaint can be exercised only in regard to the pending cases. The Appellate Court has same power as trial Court. In this connection, this Court cites the decision Jugal Kishore Bhadani V. Union of India reported in AIR 1965 Patna 196 wherein it is observed as follows:

It is well established principle of law that unless the statute otherwise provides an appellate Court has the same power of dealing with all questions, either of fact or of law, arising in the appeal before it, as that of the Court whose judgment is the subject of scrutiny in the appeal.

20. Moreover, in the decision Ajit Kumar Roy V. Surendra Nath Ghose, AIR 1954 Calcutta 365 (Vol.41, C.N.123) wherein it is held as under:

The powers contemplated by S.107(2) have to be exercised by the appellate Court at the date when it decides the appeal. Necessarily the powers which the appellate Court will exercise, must be determined in relation to the state of facts at the time when the appellate Court is called upon to exercise the powers under S.107.

21. It is to be noted that where the Plaint was ordered to be returned under the orders of the concerned Competent Court for presentation before the competent jurisdiction, such return cannot be termed as transfer of suit either as per Section 24 of the Civil Procedure Code or owing to any other statutory change.

22. It is to be remembered that on return of the Plaint, the suit should be instituted when the Plaint is presented in the proper Court. It cannot be termed, by any stretch of imagination, as a continuation of the old suit. It is to be treated as a fresh Plaint subject to pecuniary jurisdiction, limitation and payment of requisite Court Fees as the case may be. If a Plaint is returned under Order VII Rule 10 C.P.C. and is represented before the Competent Court of Law of Jurisdiction, then, it is only a fresh suit instituted before that Court and should be tried 'De Novo'. Where an Appellate Court passes an order in directing the Plaint to be presented before the proper Court, then, it should not record its findings on merits on the issues involved in the case, as per decision T.R.S.Mani V. R.P.Radio Private Limited, AIR 1963 Madras 30.

23. In fact, the Hon'ble High Court, by virtue of its inherent jurisdiction, can pass an order for return of the Plaint. Although Order VII Rule 10 C.P.C. does not apply ordinary or extraordinary civil jurisdiction of the High Courts, but it could be pressed into service to meet the ends of Justice, as per decision Amal Kumar Ghatak V. S.K.Enterprise Private Limited, AIR 1995 Cal 91 (DB).

24. In view of the foregoings, this Court, considering the respective contentions advanced on either side, without expressing any opinion on the merits of the subject matter in issue revolving around the parties in the present case, is of the considered view that the Learned Single Judge, after coming to the conclusion for Issue No.1 that the Hon'ble High Court has no territorial jurisdiction to try the suit, should not have ventured to deal with the other Issues viz., 2 to 8 on merits and to render findings, which had resulted in dismissal of the main suit. In fact, the Learned Single Judge should have returned the Plaint in C.S.No.857 of 2009 on the file of this Court, as per Order VII Rule 10 C.P.C. directing the Appellant/Plaintiff to present the said Plaint before the competent/ concerned Court where such suit should have been filed. Unfortunately, the Learned Single Judge had not resorted to such a procedure and after answering the Issue No.1 to the effect that this Court lacked territorial jurisdiction to deal with the main suit, had proceeded to deal with the issues beginning from Issue Nos.2 to 8 and rendered findings, which, in the considered opinion of this Court, is an incorrect and invalid one, in the eye of Law. At the risk of repetition, this Court points out that Order VII Rule 10 C.P.C. unerringly points out that subject to the provision of Rule 10(1)A C.P.C., 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 and in short, the ingredients of Order VII Rule 10(1) are absolutely unambiguous. To put it precisely, no Court of Law can accept any Plaint without any prima facie subjective satisfaction of its jurisdiction to entertain the matter. Viewed in that perspective, this Court interferes with the findings of the Learned Single Judge in respect of Issues No.2 to 8 and sets aside the same, to prevent an aberration of Justice and to promote substantial cause of Justice.

25. In view of the fact that the Learned Single Judge in Issue No.1 had held that this Court lacked territorial jurisdiction to try the main suit, this Court, by keeping in mind the ingredients of Order VII Rule 10(1) C.P.C., directs the Office of the Registry to return the Plaint in C.S.No.857 of 2009 on the file of this Court, filed by the Appellant/Plaintiff before this Court together with the requisite documents filed by him, of course, after taking xerox copies of the same [for the purpose of keeping it on records of the Office of the Registry], within one week from the date of receipt of copy of this Judgment. The Appellant/Plaintiff, after taking the return of the Plaint together with the requisite papers, is directed to present the Plaint together with relevant papers and documents before the competent Court of Jurisdiction and to proceed further in the manner known to Law and in accordance with Law, within a period of two weeks from the date of taking of the return of the Plaint from the Office of the Registry. It cannot be gainsaid that the concerned competent Court shall number the Plaint so represented, subject to limitation, pecuniary jurisdiction and payment of Court fees if any and try the suit 'Afresh' / 'De novo', on the merits of the matter. It is open to the respective parties to raise all factual and legal pleas before the competent Court of Law. Also, Liberty is granted to the parties to let in oral and documentary evidence as well as to produce necessary additional documents on their side, if they so desire/advised.

26. In view of the aforesaid observations and directions, the Original Side Appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
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