Badrilal and anr. Vs. Sunil and anr. - Court Judgment

Excerpt:
civil procedure code, 1908 - order 43 rule 1 and section 115--miscellaneous appeal and revision--encroachment of public lane--even after staying the operation of order to return the plaint to court of lowest grade, trial court consigned the file to records--held, after the order to return the plaint was stayed by high court, the position would be that order passed by trial court had never come in existence--consigning the file to records is perverse and illegal--impugned order quashed and set aside--trial court directed to proceed with suit and application filed under order 39 rules 1, 2 and 7--parties directed to maintain status quo as it existed before impugned order.;miscellaneous appeals & revision allowed - - the plaintiff-appellants field an application before the trial court that the operation of the order directing return of the plaint has been stayed by the hon'ble high court and, therefore, the trial court should proceed with the suit as well as the application filed by the plaintiff-appellantsunder order 39 rules 1 and 2 and order 39 rule 7 c. provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff. in the instant case, according to the trial court, it had territorial as well as pecuniary jurisdiction to try the suit and, therefore, as envisaged in section 15 c. once the trial court has returned the original suit, thereafter the trial court has no jurisdiction to pass any order on the application filed in the suit like the application under order 39 rule 2 c.panwar, j.1. s.b. civil misc. appeals no. 572/94, 598/94, 668/94 and s.b. civil revision no. 1224/94 arise out of same suit and between the same parties and involve common questions of law and facts and, therefore, for convenience they are decided jointly.2. s.b. civil misc. appeal no. 572/94 is directed against the order dated 24.10.94 passed by district judge, udaipur on an application filed by the respondents under section 15 c.p.c. read with sections 10 and 49 of the rajasthan court fees & suits valuation act, 1961 (hereinafter referred to as 'the act') whereby the trial court allowed the application filed by the respondent-defendants and directed the suit to be returned to the plaintiff-appellants for presentation to a proper court on the ground that the suit was not properly valued.3. s.b. civil misc. appeal no. 598/94 is also directed against the order dated 24.10.94 whereby the trial court dismissed the application filed by the plaintiff-appellants seeking temporary injunction under order 39 rule 2 c.p.c.4. s.b. civil misc. appeal no. 668/94 is directed against the order dated 21.11.94 passed by the trial court whereby the trial court dismissed the application filed by the dismissed the application filed by the plaintiff-appellants seeking appointment of commissioner under order 26 rule 10 c.p.c. read with order 39 rule 7 c.p.c.5. s.b. civil revision no. 1224/94 is directed against the order dated 21.11.94 whereby the trial court instead of proceeding with the suit in compliance of ad-interim stay order passed by this court in s.b. civil stay petition no. 334/97 in s.b. civil misc. appeal no. 572/94 considered the file to the record.6. briefly stated facts to the extent they are relevant for decision of these appeals and revision are that the appellant- plaintiffs filed civil original suit no. 94/94 for permanent injunction before the learned trial court. the suit was valued at rs. 51,000/-and accordingly, the court fee of rs. 2740/- was paid by the appellants. the trial court prima facie came to the conclusion that the cause of action to the appellant-plaintiffs arose and the property in dispute is situated within the territorial jurisdiction of the trial court. the trial court further came to the conclusion that it is vested with the pecuniary jurisdiction as the valuation of the suit is above rs. 50.000/-. summonses for settlement of issues were issued to the respondent- defendants. the respondents-defendants instead of filing written statement, filed an application under section 15 c.p.c. read with sections 10 and 49 of the act and requested the trial court that suit valued by the plaintiff-appellants should be filed before a court of lowest grade competent to try it. it was also alleged that the valuation of the suit determined by the plaintiffs is excessive and, therefore, the defendant-respondents prayed that the plaint be returned to the plaintiff-appellants to file in the court of lowest grade. by the order impugned dated 24.10.94, the trial court allowed the application filed by the defendant-respondents and directed to return the plaint to the plaintiff- appellants to be presented in the proper court in the lowest grade. in the same sequence, the trial court dismissed the application filed by the plaintiff-appellants under order 39 rules 1 and 2 c.p.c. seeking temporary injunction as also an application for appointment of commission under order 26 rule 9 and order 39 rule 7 c.p.c. the order impugned dated 24.10.94 was challenged by the plaintiff-appellants before this court. on 16.11.94, the appeal filed by the appellants was admitted by this court and the operation of the order directing return of the plaint, was stayed. the plaintiff-appellants field an application before the trial court that the operation of the order directing return of the plaint has been stayed by the hon'ble high court and, therefore, the trial court should proceed with the suit as well as the application filed by the plaintiff-appellantsunder order 39 rules 1 and 2 and order 39 rule 7 c.p.c. seeking temporary injunction. instead of proceeding with the suit and the application under order 39 rules 1 and 2 c.p.c,, the trial court consigned the file to the record. the order dismissing the application under order 39 rules 1 and 2 c.p.c. was challenged before this court in s.b. civil misc. appeal no. 598/94, which was admitted by this court. vide order dated 25.11.94, this court passed the following order:-in the meanwhile the non-petitioners are restrained from putting up any further construction in the disputed lane and from interferring with the petitioners user of the disputed lane till the disposal of the said application. the parties shall maintain status-quo as regards the construction in the disputed lane as it stands today. list the case for hearing on 21st dec. 1994 alongwith civil misc. appeal no. 572/94 and if in the meanwhile the revision against order dated 21.11.94 in suit no. 94/94 is filed that also shall be heard together this case.'7. after passing the order dated 24.10.94 in civil original suit no. 94/94, the subsequent orders as noticed above, were consequential orders.8. 1 have heard the learned counsel for the parties. perused the various orders impugned.9. the case as set up by plaintiff-appellants is that the respondent-defendants are threatening to encroach upon the public lane and raise construction thereon and have collected the material and even started raising construction. the plaintiff- appellants filed the suit for injunction and valued the suit as provided in section 26 of the act, which reads as under:-'26. suits for injunction.-in a suit for injunction- (a) where the relief sought is with reference to any immovable property, and where the plaintiff alleges that his title to the property is denied, fee shall be computed on one- half of the market value of the property or on rupees three hundred, whichever is higher;(b) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive rights, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees five hundred, whichever is higher;(c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher.' 10. the case of the plaintiff-appellants falls in sub-section (c) of section 26 of the act, which provides that in any other case, whether the subject matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. the appellant-plaintiffs valued the suit at rs. 51,000/- as per the elaborate details given in the plaint. thus, the suit was valued for more than rs. 400/-. no other mode of computation of the fees is provided except under section 26 as noticed above. the only requirement is that the plaintiff has to compute the fee, which shall be computed on the basis of which the relief sought is valued in the plaint or rs. 400/- whichever is higher. obviously, the suit valued at rs. 51.000/- is higher than rs. 400/- and accordingly, the plaintiff-appellants paid the court fee. section 15 of the civil procedure code provides the place of suing. it provides the courts at which the suit is to be instituted. it says that every suit shall be instituted in the court of the lowest grade competent to try it. in the instant case, the suit was valued at rs. 51,000/- and on the relevant date and time, the competent court to try such suit was the court of district judge.11. next comes the question of territorial jurisdiction. undisputedly, the property is situated within the territorial jurisdiction of the district judge, udaipur. the other provision in the civil procedure code for return of plaint is envisaged under order 7 rule 10 c.p.c.p order 7 rule 10 c.p.c. provides that subject to the provisions of rule 10-a, 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. rule 10-a further provides that where, in any suit, after the defendant has appeared, the court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. sub-rule (3) of rule 10-a provides that where an application is made by the plaintiff under sub-rule (2), the court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit.-(a) fix a date for the appearance of the parties in the court in which the plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date for appearance. rule 11 of order 7 provides for rejection of the plaint. according to this rule, a plaint shall be rejected in the following cases:-(a) where it does not disclose a cause of action;(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so;(d) where the suit appears from the statement in the plaint to be barred by any law;provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.12. section 10 of the act deals with statement of particulars of subject-matter of suit and plaintiff's valuation thereof. it says that in every suit in which the fee payable under this act, on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint a statement in the prescribed form of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. section 49 of the act deals with procedure where objection is taken on appeal or revision that suit or appeal was not properly valued for jurisdictional purposes. thus, in the instant case, as evidenced from the suit construed and the plaint, the suit is for permanent injunction and has to be valued by the plaintiff-appellant in accordance with section 26 of the act. there is no higher limit between which the suit for injunction can be computed. what is required is that the suit has to be valued at rs. 400/- or on higher amount thereto involving the amount higher than rs. 400/- the suit is required to be valued to higher amount. in the instant case, the suit is valued at rs. 51,000/- by giving details in the plaint on which the appellant-plaintiff have value the suit. the trial court can return the plaint either the suit is instituted before the court, which has neither territorial jurisdiction nor the pecuniary jurisdiction. in the instant case, according to the trial court, it had territorial as well as pecuniary jurisdiction to try the suit and, therefore, as envisaged in section 15 c.p.c. the lowest court to try such a suit is the court of district judge competent to try it. had the suit been filed before the court of civil judge (junior division), then definitely the civil judge (junior division) would not have the pecuniary jurisdiction as the jurisdiction of civil judge (junior division) is only for suit valued upto rs.25,000/-. thus, the suit which has been valued at rs. 51,000/- cannot be tried by the civil judge (junior division), which can be said to be a court of lowest grade. in this view of the matter, the impugned order dated 24.10.94 of the trial court directing to return the plaint to the plaintiffs, cannot be sustained and is liable to be set aside. s.b, civil misc. appeal no. 598/94 is directed against the order dated 24.10.94 passed in civil misc. case no. 28/94 whereby the trial court dismissed the application filed by the plaintiff-appellants under order 39 rules 1 and 2 c.p.c. on the ground that since original suit no. 94/94 filed by the appellants has already been directed to be returned to the plaintiffs, therefore, the application seeking temporary injunction is also rejected. once the trial court has returned the original suit, thereafter the trial court has no jurisdiction to pass any order on the application filed in the suit like the application under order 39 rule 2 c.p.c. and the application under order 26 rule 9 read with section 7 c.p.c. without deciding whether or not the plaintiffs have a prima facie case; balance of convenience or what irreparable injury would result to the plaintiffs in case the temporary injunction is not granted. the trial court has dismissed the application seeking temporary injunction without assigning any sound and plausible reason. thus, the order appears to be ex- facie perverse and cannot be sustained and is liable to be set aside. thus, the order passed by the trial court rejecting the application for temporary injunction and the application seeking appointment of commission are perverse, erroneous and illegal and liable to be set aside. by interim order, this court stayed the operation of the order dated 24.10.94 by which the trial court directed to return the plaint to the plaintiff-appellants in s.b. civil misc. appeal no. 572/94. after the operation of the order of the trial court has been stayed by this court, the position would be that the order passed by the trial court had never come in existence and the trial court shall proceed with the suit as if it has not passed any such order directing to return the plaint. the trial court instead of proceeding with the suit vide order dated 21.11.94 consigned the file to record, which was challenged by the plaintiff-petitioners before this court in s.b. civil revision no. 1224/94. the order directing consignment of file to record, is also perverse and illegal. the trial court at any rate could not have consigned the file to record when the operation of the order for return of the plaint had been stayed by this court, then the trial court could have proceeded with the suit as if no such order of return of plaint has been passed. in this view of the matter, the order impugned in this revision also is liable to be set aside.13. in view of the aforesaid discussion, the aforesaid three appeals and the revision filed by the plaintiff-appellants are allowed. the orders passed by the trial court dated 24.10.94, 24.10.94, 21.11.94 and 21.11.94 are hereby quashed and set aside. the trial court is directed to proceed with the suit and the applications filed thereunder, plaintiffs' civil original suit no. 94/94 and civil misc. application numbers 28/94 and 53/94 are restored to its original numbers. the trial court is directed to proceed with the suit expeditiously and to complete the trial within a period of one year from the receipt of this order. the parties are further directed to maintain status quo as it existed on 25.11.94 as directed by this court in s.b. civil misc. appeal no. 598/94 till the decision of the application filed by the plaintiff-appellants under order 39 rules 1 and 2 c.p.c. no order as to costs.