No interest shoudl be awarded - On presentation of a suit on the point of Jurisdiction after return under Or. VII, rule 10 C.P.C., Court should not grant interest from the date of filing of suit in earlier court as it is not presented on transfer. Hence any decree granting interest from the date of presentation in previous court - non-est in eye of law-
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play. =
The judgment and order dated 21.9.2006 shows
that the plaints were received and registered on 24.3.1986.
The
respondent cannot be permitted to take advantage of a mistake made by
the court and raise a technical objection to defeat the cause of
substantial justice.
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play.
The judgment and decree dated 21.9.2006 clearly provided for
future interest at the rate of 12 per cent per annum from the date of
filing of the suit till the realisation of the amount.
The Executing
Court vide judgment and decree dated 28.9.2007 rejected the claim of
the respondent observing that the respondent had wrongly filed suit at
Mehsana and the said court had no jurisdiction, and the “wrong doer
cannot get benefit of its own wrong” i.e. the benefit of interest on
the amount from the date of filing the suit in Mehsana court.
The
Appellate Court in its order dated 12.3.2010 reiterated a similar view
rejecting the appeal of the respondent observing that “a public
undertaking cannot be penalised for the mistake committed by the
plaintiff by choosing a wrong forum”.
Before the High Court when the
matter was taken up on 14.9.2010, a similar view had been reiterated
that the respondent cannot be allowed to take advantage of the words
“from the date of the suit”, and conveniently overlook its own wrong
of initially filing the suit in 1986 in the court at Mehsana.
Though
the court did not have jurisdiction, the plaintiff/respondent is now
claiming interest for the period from 1986 to 1999 i.e. for 13 years
by taking advantage of its own wrong and for that purpose, the
plaintiff/respondent is trying to misconstrue the words mentioned by
the learned trial court in the operative portion of the judgment dated
21.9.2006, viz., from the date of filing of the suit.
However, while
passing the impugned order, the High Court has used the language that
the case stood transferred from the Mehsana court to the court at
Surat and, therefore, interest has to be paid from the date of
initiation of the suit at Mehsana i.e. from 1986 and in view thereof,
allowed the claim.
19. We are of the considered view that once the plaint was presented
before the Civil Court at Surat, it was a fresh suit and cannot be
considered to be continuation of the suit instituted at Mehsana. The
plaintiff/respondent cannot be permitted to take advantage of its own
mistake instituting the suit before a wrong court. The judgment and
order impugned cannot be sustained in the eyes of law.
20. In view of the above, appeals are allowed. The judgment and
decree impugned are set aside. The judgments and orders of the
Trial/Executing Court as well as of the Appellate Court are restored.
There shall be no order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.8957-8958 of 2013
ONGC Ltd. … Appellant
Versus
M/s. Modern Construction and Co. …
Respondent
J U D G M E N T
Dr.B.S.Chauhan, J.
1. These appeals have been preferred against the impugned judgment
and order dated 10.12.2010 passed by the High Court of Gujarat at
Ahmedabad in Special Civil Application Nos.5036-5037 of 2010,
reversing and setting aside the order dated 12.3.2010, passed by the
Addl. District Judge, Fast Track Court, Surat in Misc. Civil Appeal
Nos.29 and 30 of 2008 as well as the order dated 28.9.2007, passed in
Special Execution Petition Nos.17 and 18 of 2007, passed by the 2nd
Additional Senior Civil Judge, Surat.
2. Facts and circumstances giving rise to these appeals are that:
A. A contract for re-construction of cement godown, site office and
warehouse for LPG Plant at Kawas in Surat District was awarded
by the appellant to the respondent to be completed on or before
8.8.1984 vide agreement dated 9.2.1984. The respondent
completed the work with an inordinate delay and possession could
be taken by the appellant only on 31.6.1985. The respondent
filed Civil Suit Nos.60, 61 and 62 of 1986 against the appellant
in the Civil Court at Mehsana to recover the outstanding dues
from the appellant.
B. The Civil Court vide judgment and decree dated 31.1.1994 allowed
Civil Suit Nos.61 and 62 of 1986 in favour of the respondent.
C. Aggrieved, the appellant filed First Appeal Nos.1451, 1452 and
1453 of 1994 before the High Court of Gujarat challenging the
said judgment and decree dated 31.1.1994. The High Court vide
common judgment and order dated 18.3.1997 held that the Civil
Court at Mehsana did not have territorial jurisdiction to
entertain the suits. Therefore, the said judgment and decrees
passed in the civil suits were set aside and the Civil Court at
Mehsana was directed to return the plaints to the respondent so
that the same may be presented before the appropriate court
having jurisdiction.
D. The plaints were returned to the respondent in the aforesaid
civil suits, who instituted the same before the Civil Court at
Surat on 3.2.1999 being Civil Suit Nos.56, 57 and 58 of 1999.
The said suits were allowed by the 3rd Additional Senior Civil
Judge vide judgment and decree dated 21.9.2006 holding that the
respondent was entitled to receive an amount of Rs.1,29,138/-,
Rs.1,69,757/- and Rs.58,616/- in the respective suits with a
future interest @ 12% per annum from the date of filing of the
suit till realisation.
E. The appellant complied with the decrees passed by the 3rd Addl.
Senior Civil Judge and made the payment of decretal amount to
the respondent calculating the interest on the principal sum
from 3.2.1999, i.e. the date on which the respondent had
presented the plaints in the court of competent jurisdiction at
Surat.
F. The respondent after receiving the said amount filed Special
Execution Petition Nos. 17 and 18 of 2007 on 5.3.2007 claiming
interest for the period 1986 to 1999, i.e. during the period
when the suit remained pending before the court at Mehsana which
had no jurisdiction. The Executing Court vide order dated
28.9.2007 dismissed the Execution petition observing that
respondent was entitled to interest from the date of filing of
the suit at Surat and not from the date on which the plaint was
presented at Mehsana.
G. Aggrieved, the respondent preferred Misc. Civil Appeal Nos.29,
30 and 35 of 2008 before the District Court at Surat and the
same were dismissed vide order dated 12.3.2010.
H. Aggrieved, the respondent challenged the said order dated
12.3.2010 by filing Special Civil Application Nos.5036 and 5037
of 2010 before the High Court of Gujarat at Ahmedabad and the
said applications have been allowed vide order dated 10.12.2010
holding that the respondent was entitled to interest from the
date of institution of the suit at Mehsana Court.
Hence these appeals.
3. Shri Parag P. Tripathi, learned Senior counsel appearing for the
appellant duly assisted by Shri Nishant Menon, Advocate has submitted
that the plaints had initially been instituted at Mehsana Court which
had no territorial jurisdiction to entertain these suits and even
after being decreed, the High Court vide order dated 18.3.1997 had
rightly set aside the judgment and decrees and asked the court at
Mehsana to return the plaints to the respondent so that the plaintiff
could present them before the court of competent territorial
jurisdiction.
Therefore, the order of the High Court has to be
understood to have been passed in view of the provisions of Order VII
Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to
as ‘CPC’) and not a case of transfer of a suit from the Court at
Mehsana to the Civil Court, Surat.
Once the plaint is presented after
being returned from the court having no jurisdiction, it is to be
treated as a fresh suit and even if the trial was conducted earlier,
as in the instant case, it had to be done de novo.
The only
protection could be to take advantage of the provisions of Section 14
of the Limitation Act, 1963 (hereinafter referred to as the
‘Limitation Act’) and the court fees paid earlier may be adjusted but
by no stretch of imagination it can be held to be a continuation of
the suit. Had it been so there would be no occasion for the High
Court to set aside the judgment and decree of the civil court at
Mehsana at such a belated stage.
Thus the impugned judgment and order
is liable to be set aside.
4. Per contra, Shri Santosh Krishnan, learned counsel appearing for
the respondent has submitted that in fact, the suits had been
instituted at Mehsana Court in 1986 and the civil court therein had
decreed the suit.
The High Court in the impugned order has clearly
stated that the suits were transferred from Mehsana Court to Civil
Court at Surat and therefore, the respondent was entitled for interest
from the date of institution of suit at Mehsana.
The judgment and
decree dated 21.9.2006 clearly reveals that the suits were received
and registered on 24.3.1986.
The appellant had not applied for
correction of the said judgment and order by filing an application
under Section 152 CPC. Therefore, no interference is called for and
the appeals are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. The High Court while passing order dated 18.3.1997, did not
exercise its power of transfer under Section 24 CPC; rather the
language used in the said judgment makes it clear that the return of
the plaints was required in view of the provisions of Order VII Rule
10 CPC.
The relevant part of the order reads as under:
“Therefore, the impugned judgments and decrees in all the three
appeals are allowed only on the limited ground that civil court
at Mehsana had no jurisdiction to entertain the suits with the
result, the plaints are required to be returned to the Plaintiff
for filing suits in appropriate forum or court at appropriate
place in view of provisions of O. 7, R 10 of the CPC. Therefore,
the plaints are ordered to be returned to the Plaintiff or (sic)
presentation to proper court having territorial jurisdiction. No
doubt, we cannot resist temptation of mentioning the fact that
the controversy is very old. It pertains to money on the basis
of breach of contract. Therefore, the proper court on
presentation of plaints will expeditiously determine and decide
the dispute between the parties. We have not entered into merits
of other issue decided by the trial court as decisions rendered
in respect of other issues as they are examined and adjudicated
upon by the trial court without jurisdiction. In the result, all
the three appeals are allowed and impugned judgment and decree
are quashed and set aside. The appeals are allowed. The plaints,
therefore, shall be returned to the Plaintiff for presentation
to proper court.” (Emphasis added)
7. In Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., AIR 1929 PC
103, a Bench of Privy Council held:
"…..It is quite clear that where a suit has been instituted in a
court which is found to have no jurisdiction and it is found
necessary to raise a second suit in a court of proper
jurisdiction, the second suit cannot be regarded as a
continuation of the first, even though the subject matter and
the parties to the suits were identical……"
(Emphasis added)
8. In Sri Amar Chand Inani v. Union of India, AIR 1973 SC 313, the
issue involved herein was considered and this Court held that in such
a fact-situation, where the plaint is returned under Order VII Rule 10
CPC and presented before the court of competent jurisdiction, the
plaintiff is entitled to exclude the time during which he prosecuted
the suit before the court having no jurisdiction in view of the
provisions of Section 14 of the Limitation Act and by no means it can
be held to be continuation of the earlier suit after such
presentation.
9. In Hanamanthappa & Anr. v. Chandrashekharappa & Ors., AIR 1997
SC 1307, this Court reiterated a similar view rejecting the contention
that once the plaint is returned by the court having no jurisdiction
and is presented before a court of competent jurisdiction, it must be
treated to be continuation of the earlier suit. The Court held:
“In substance, it is a suit filed afresh subject to the
limitation, pecuniary jurisdiction and payment of the Court fee.
…. At best it can be treated to be a fresh plaint and the
matter can be proceeded with according to law.”
10. In Joginder Tuli v. S.L. Bhatia & Anr., (1997) 1 SCC 502, this
Court dealt with a case wherein the landlord had terminated the
tenancy and filed a suit for possession. An application for amendment
of the plaint to recover damages for the use and occupation was also
filed. On that basis, the pecuniary jurisdiction of the Trial Court
was beyond its jurisdiction and accordingly the plaint was returned
for presentation to proper court. On revision, the High Court
directed the Court to return the plaint to the District Court with a
direction that the matter would be taken up by the District Court and
proceeded with from the stage on which it was returned. This Court
disposed of the case observing:
“Normally, when the plaint is directed to be returned for
presentation to the proper court perhaps it has to start from
the beginning but in this case, since the evidence was already
adduced by the parties, the matter was tried accordingly. The
High Court had directed to proceed from that stage at which the
suit stood transferred. We find no illegality in the order
passed by the High Court warranting interference.”
11. This Court in Harshad Chimanlal Modi (II) v. D.L.F. Universal
Ltd. & Anr., AIR 2006 SC 646 has approved and followed the judgment of
this Court in Sri Amar Chand Inani (supra) and distinguished the case
in Joginder Tuli (supra) observing that:
“The suit when filed was within the jurisdiction of the Court
and it was properly entertained. In view of amendment in the
plaint during the pendency of the suit, however, the plaint was
returned for presentation to proper court taking into account
the pecuniary jurisdiction of the court. Such is not the
situation here.”
12. Section 14 of the Limitation Act provides protection against the
bar of limitation to a person bonafidely presenting his case on merit
but fails as the court lacks inherent jurisdiction to try the suit.
The protection also applies where the plaintiff brings his suit in the
right court, but is nevertheless prevented from getting a trial on
merits because of subsequent developments on which a court may loose
jurisdiction because of the amendment of the plaint or an amendment in
law or in a case where the defect may be analogous to the defect of
jurisdiction.
13. 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 VII Rule 10 CPC and
the plaintiff can present it before the court having competent
jurisdiction.
In such a factual matrix, the plaintiff is entitled to
exclude the period during which he prosecuted the case before the
court having no jurisdiction in view of the provisions of Section 14
of the Limitation Act, and may also seek adjustment of court fee paid
in that court.
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.
14. There can also be no quarrel with the settled legal proposition
that the Executing Court cannot go behind the decree. Thus, in absence
of any challenge to the decree, no objection can be raised in
execution. (Vide: Bhawarlal Bhandari v. Universal Heavy Mechanical
Lifting Enterprises AIR 1999 SC 246; Dhurandhar Prasad Singh v. Jai
Prakash University & Ors., AIR 2001 SC 2552; Rajasthan Financial
Corpn. v. Man Industrial Corpn. Ltd., AIR 2003 SC 4273; Balvant N.
Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR
2004 SC 4377; and Kanwar Singh Saini v. High Court of Delhi, (2012) 4
SCC 307).
15. In the instant case, a copy of the decree has not been filed by
either of the parties.
The judgment and order dated 21.9.2006 shows
that the plaints were received and registered on 24.3.1986.
The
respondent cannot be permitted to take advantage of a mistake made by
the court and raise a technical objection to defeat the cause of
substantial justice.
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play. (See:
Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084; and
Bhagwati Developers Private Ltd. v. Peerless General Finance
Investment Company Ltd. & Ors., AIR 2013 SC 1690).
16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v.
Yogeshbhai Ambalal Patel & Anr., AIR 2012 SC 3285, while dealing with
the issue held:
“21. A person alleging his own infamy cannot be heard at any
forum, what to talk of a Writ Court, as explained by the legal
maxim ‘allegans suam turpitudinem non est audiendus'. If a party
has committed a wrong, he cannot be permitted to take the
benefit of his own wrong….
This concept is also explained by the legal maxims
‘Commodum ex injuria sua non habere debet’; and 'nullus commodum
capere potest de injuria sua propria'.”
17. Thus, the respondent cannot take the benefit of its own mistake.
Respondent instituted the suit in Civil Court at Mehsana which
admittedly had no jurisdiction to entertain the suit. In spite of the
fact that the civil suit stood decreed, the High Court directed the
court at Mehsana to return the plaint in view of the provisions of
Order VII Rule 10 CPC. Thus, the respondent presented the plaint
before the Civil Court at Surat on 3.2.1999.
18. The judgment and decree dated 21.9.2006 clearly provided for
future interest at the rate of 12 per cent per annum from the date of
filing of the suit till the realisation of the amount.
The Executing
Court vide judgment and decree dated 28.9.2007 rejected the claim of
the respondent observing that the respondent had wrongly filed suit at
Mehsana and the said court had no jurisdiction, and the “wrong doer
cannot get benefit of its own wrong” i.e. the benefit of interest on
the amount from the date of filing the suit in Mehsana court.
The
Appellate Court in its order dated 12.3.2010 reiterated a similar view
rejecting the appeal of the respondent observing that “a public
undertaking cannot be penalised for the mistake committed by the
plaintiff by choosing a wrong forum”.
Before the High Court when the
matter was taken up on 14.9.2010, a similar view had been reiterated
that the respondent cannot be allowed to take advantage of the words
“from the date of the suit”, and conveniently overlook its own wrong
of initially filing the suit in 1986 in the court at Mehsana.
Though
the court did not have jurisdiction, the plaintiff/respondent is now
claiming interest for the period from 1986 to 1999 i.e. for 13 years
by taking advantage of its own wrong and for that purpose, the
plaintiff/respondent is trying to misconstrue the words mentioned by
the learned trial court in the operative portion of the judgment dated
21.9.2006, viz., from the date of filing of the suit.
However, while
passing the impugned order, the High Court has used the language that
the case stood transferred from the Mehsana court to the court at
Surat and, therefore, interest has to be paid from the date of
initiation of the suit at Mehsana i.e. from 1986 and in view thereof,
allowed the claim.
19. We are of the considered view that once the plaint was presented
before the Civil Court at Surat, it was a fresh suit and cannot be
considered to be continuation of the suit instituted at Mehsana. The
plaintiff/respondent cannot be permitted to take advantage of its own
mistake instituting the suit before a wrong court. The judgment and
order impugned cannot be sustained in the eyes of law.
20. In view of the above, appeals are allowed. The judgment and
decree impugned are set aside. The judgments and orders of the
Trial/Executing Court as well as of the Appellate Court are restored.
There shall be no order as to costs.
….………………..........J. (DR.
B.S. CHAUHAN)
…...................................J.
(S.A. BOBDE)
NEW DELHI;
October 7, 2013
-----------------------
13
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play. =
The judgment and order dated 21.9.2006 shows
that the plaints were received and registered on 24.3.1986.
The
respondent cannot be permitted to take advantage of a mistake made by
the court and raise a technical objection to defeat the cause of
substantial justice.
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play.
The judgment and decree dated 21.9.2006 clearly provided for
future interest at the rate of 12 per cent per annum from the date of
filing of the suit till the realisation of the amount.
The Executing
Court vide judgment and decree dated 28.9.2007 rejected the claim of
the respondent observing that the respondent had wrongly filed suit at
Mehsana and the said court had no jurisdiction, and the “wrong doer
cannot get benefit of its own wrong” i.e. the benefit of interest on
the amount from the date of filing the suit in Mehsana court.
The
Appellate Court in its order dated 12.3.2010 reiterated a similar view
rejecting the appeal of the respondent observing that “a public
undertaking cannot be penalised for the mistake committed by the
plaintiff by choosing a wrong forum”.
Before the High Court when the
matter was taken up on 14.9.2010, a similar view had been reiterated
that the respondent cannot be allowed to take advantage of the words
“from the date of the suit”, and conveniently overlook its own wrong
of initially filing the suit in 1986 in the court at Mehsana.
Though
the court did not have jurisdiction, the plaintiff/respondent is now
claiming interest for the period from 1986 to 1999 i.e. for 13 years
by taking advantage of its own wrong and for that purpose, the
plaintiff/respondent is trying to misconstrue the words mentioned by
the learned trial court in the operative portion of the judgment dated
21.9.2006, viz., from the date of filing of the suit.
However, while
passing the impugned order, the High Court has used the language that
the case stood transferred from the Mehsana court to the court at
Surat and, therefore, interest has to be paid from the date of
initiation of the suit at Mehsana i.e. from 1986 and in view thereof,
allowed the claim.
19. We are of the considered view that once the plaint was presented
before the Civil Court at Surat, it was a fresh suit and cannot be
considered to be continuation of the suit instituted at Mehsana. The
plaintiff/respondent cannot be permitted to take advantage of its own
mistake instituting the suit before a wrong court. The judgment and
order impugned cannot be sustained in the eyes of law.
20. In view of the above, appeals are allowed. The judgment and
decree impugned are set aside. The judgments and orders of the
Trial/Executing Court as well as of the Appellate Court are restored.
There shall be no order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.8957-8958 of 2013
ONGC Ltd. … Appellant
Versus
M/s. Modern Construction and Co. …
Respondent
J U D G M E N T
Dr.B.S.Chauhan, J.
1. These appeals have been preferred against the impugned judgment
and order dated 10.12.2010 passed by the High Court of Gujarat at
Ahmedabad in Special Civil Application Nos.5036-5037 of 2010,
reversing and setting aside the order dated 12.3.2010, passed by the
Addl. District Judge, Fast Track Court, Surat in Misc. Civil Appeal
Nos.29 and 30 of 2008 as well as the order dated 28.9.2007, passed in
Special Execution Petition Nos.17 and 18 of 2007, passed by the 2nd
Additional Senior Civil Judge, Surat.
2. Facts and circumstances giving rise to these appeals are that:
A. A contract for re-construction of cement godown, site office and
warehouse for LPG Plant at Kawas in Surat District was awarded
by the appellant to the respondent to be completed on or before
8.8.1984 vide agreement dated 9.2.1984. The respondent
completed the work with an inordinate delay and possession could
be taken by the appellant only on 31.6.1985. The respondent
filed Civil Suit Nos.60, 61 and 62 of 1986 against the appellant
in the Civil Court at Mehsana to recover the outstanding dues
from the appellant.
B. The Civil Court vide judgment and decree dated 31.1.1994 allowed
Civil Suit Nos.61 and 62 of 1986 in favour of the respondent.
C. Aggrieved, the appellant filed First Appeal Nos.1451, 1452 and
1453 of 1994 before the High Court of Gujarat challenging the
said judgment and decree dated 31.1.1994. The High Court vide
common judgment and order dated 18.3.1997 held that the Civil
Court at Mehsana did not have territorial jurisdiction to
entertain the suits. Therefore, the said judgment and decrees
passed in the civil suits were set aside and the Civil Court at
Mehsana was directed to return the plaints to the respondent so
that the same may be presented before the appropriate court
having jurisdiction.
D. The plaints were returned to the respondent in the aforesaid
civil suits, who instituted the same before the Civil Court at
Surat on 3.2.1999 being Civil Suit Nos.56, 57 and 58 of 1999.
The said suits were allowed by the 3rd Additional Senior Civil
Judge vide judgment and decree dated 21.9.2006 holding that the
respondent was entitled to receive an amount of Rs.1,29,138/-,
Rs.1,69,757/- and Rs.58,616/- in the respective suits with a
future interest @ 12% per annum from the date of filing of the
suit till realisation.
E. The appellant complied with the decrees passed by the 3rd Addl.
Senior Civil Judge and made the payment of decretal amount to
the respondent calculating the interest on the principal sum
from 3.2.1999, i.e. the date on which the respondent had
presented the plaints in the court of competent jurisdiction at
Surat.
F. The respondent after receiving the said amount filed Special
Execution Petition Nos. 17 and 18 of 2007 on 5.3.2007 claiming
interest for the period 1986 to 1999, i.e. during the period
when the suit remained pending before the court at Mehsana which
had no jurisdiction. The Executing Court vide order dated
28.9.2007 dismissed the Execution petition observing that
respondent was entitled to interest from the date of filing of
the suit at Surat and not from the date on which the plaint was
presented at Mehsana.
G. Aggrieved, the respondent preferred Misc. Civil Appeal Nos.29,
30 and 35 of 2008 before the District Court at Surat and the
same were dismissed vide order dated 12.3.2010.
H. Aggrieved, the respondent challenged the said order dated
12.3.2010 by filing Special Civil Application Nos.5036 and 5037
of 2010 before the High Court of Gujarat at Ahmedabad and the
said applications have been allowed vide order dated 10.12.2010
holding that the respondent was entitled to interest from the
date of institution of the suit at Mehsana Court.
Hence these appeals.
3. Shri Parag P. Tripathi, learned Senior counsel appearing for the
appellant duly assisted by Shri Nishant Menon, Advocate has submitted
that the plaints had initially been instituted at Mehsana Court which
had no territorial jurisdiction to entertain these suits and even
after being decreed, the High Court vide order dated 18.3.1997 had
rightly set aside the judgment and decrees and asked the court at
Mehsana to return the plaints to the respondent so that the plaintiff
could present them before the court of competent territorial
jurisdiction.
Therefore, the order of the High Court has to be
understood to have been passed in view of the provisions of Order VII
Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to
as ‘CPC’) and not a case of transfer of a suit from the Court at
Mehsana to the Civil Court, Surat.
Once the plaint is presented after
being returned from the court having no jurisdiction, it is to be
treated as a fresh suit and even if the trial was conducted earlier,
as in the instant case, it had to be done de novo.
The only
protection could be to take advantage of the provisions of Section 14
of the Limitation Act, 1963 (hereinafter referred to as the
‘Limitation Act’) and the court fees paid earlier may be adjusted but
by no stretch of imagination it can be held to be a continuation of
the suit. Had it been so there would be no occasion for the High
Court to set aside the judgment and decree of the civil court at
Mehsana at such a belated stage.
Thus the impugned judgment and order
is liable to be set aside.
4. Per contra, Shri Santosh Krishnan, learned counsel appearing for
the respondent has submitted that in fact, the suits had been
instituted at Mehsana Court in 1986 and the civil court therein had
decreed the suit.
The High Court in the impugned order has clearly
stated that the suits were transferred from Mehsana Court to Civil
Court at Surat and therefore, the respondent was entitled for interest
from the date of institution of suit at Mehsana.
The judgment and
decree dated 21.9.2006 clearly reveals that the suits were received
and registered on 24.3.1986.
The appellant had not applied for
correction of the said judgment and order by filing an application
under Section 152 CPC. Therefore, no interference is called for and
the appeals are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. The High Court while passing order dated 18.3.1997, did not
exercise its power of transfer under Section 24 CPC; rather the
language used in the said judgment makes it clear that the return of
the plaints was required in view of the provisions of Order VII Rule
10 CPC.
The relevant part of the order reads as under:
“Therefore, the impugned judgments and decrees in all the three
appeals are allowed only on the limited ground that civil court
at Mehsana had no jurisdiction to entertain the suits with the
result, the plaints are required to be returned to the Plaintiff
for filing suits in appropriate forum or court at appropriate
place in view of provisions of O. 7, R 10 of the CPC. Therefore,
the plaints are ordered to be returned to the Plaintiff or (sic)
presentation to proper court having territorial jurisdiction. No
doubt, we cannot resist temptation of mentioning the fact that
the controversy is very old. It pertains to money on the basis
of breach of contract. Therefore, the proper court on
presentation of plaints will expeditiously determine and decide
the dispute between the parties. We have not entered into merits
of other issue decided by the trial court as decisions rendered
in respect of other issues as they are examined and adjudicated
upon by the trial court without jurisdiction. In the result, all
the three appeals are allowed and impugned judgment and decree
are quashed and set aside. The appeals are allowed. The plaints,
therefore, shall be returned to the Plaintiff for presentation
to proper court.” (Emphasis added)
7. In Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., AIR 1929 PC
103, a Bench of Privy Council held:
"…..It is quite clear that where a suit has been instituted in a
court which is found to have no jurisdiction and it is found
necessary to raise a second suit in a court of proper
jurisdiction, the second suit cannot be regarded as a
continuation of the first, even though the subject matter and
the parties to the suits were identical……"
(Emphasis added)
8. In Sri Amar Chand Inani v. Union of India, AIR 1973 SC 313, the
issue involved herein was considered and this Court held that in such
a fact-situation, where the plaint is returned under Order VII Rule 10
CPC and presented before the court of competent jurisdiction, the
plaintiff is entitled to exclude the time during which he prosecuted
the suit before the court having no jurisdiction in view of the
provisions of Section 14 of the Limitation Act and by no means it can
be held to be continuation of the earlier suit after such
presentation.
9. In Hanamanthappa & Anr. v. Chandrashekharappa & Ors., AIR 1997
SC 1307, this Court reiterated a similar view rejecting the contention
that once the plaint is returned by the court having no jurisdiction
and is presented before a court of competent jurisdiction, it must be
treated to be continuation of the earlier suit. The Court held:
“In substance, it is a suit filed afresh subject to the
limitation, pecuniary jurisdiction and payment of the Court fee.
…. At best it can be treated to be a fresh plaint and the
matter can be proceeded with according to law.”
10. In Joginder Tuli v. S.L. Bhatia & Anr., (1997) 1 SCC 502, this
Court dealt with a case wherein the landlord had terminated the
tenancy and filed a suit for possession. An application for amendment
of the plaint to recover damages for the use and occupation was also
filed. On that basis, the pecuniary jurisdiction of the Trial Court
was beyond its jurisdiction and accordingly the plaint was returned
for presentation to proper court. On revision, the High Court
directed the Court to return the plaint to the District Court with a
direction that the matter would be taken up by the District Court and
proceeded with from the stage on which it was returned. This Court
disposed of the case observing:
“Normally, when the plaint is directed to be returned for
presentation to the proper court perhaps it has to start from
the beginning but in this case, since the evidence was already
adduced by the parties, the matter was tried accordingly. The
High Court had directed to proceed from that stage at which the
suit stood transferred. We find no illegality in the order
passed by the High Court warranting interference.”
11. This Court in Harshad Chimanlal Modi (II) v. D.L.F. Universal
Ltd. & Anr., AIR 2006 SC 646 has approved and followed the judgment of
this Court in Sri Amar Chand Inani (supra) and distinguished the case
in Joginder Tuli (supra) observing that:
“The suit when filed was within the jurisdiction of the Court
and it was properly entertained. In view of amendment in the
plaint during the pendency of the suit, however, the plaint was
returned for presentation to proper court taking into account
the pecuniary jurisdiction of the court. Such is not the
situation here.”
12. Section 14 of the Limitation Act provides protection against the
bar of limitation to a person bonafidely presenting his case on merit
but fails as the court lacks inherent jurisdiction to try the suit.
The protection also applies where the plaintiff brings his suit in the
right court, but is nevertheless prevented from getting a trial on
merits because of subsequent developments on which a court may loose
jurisdiction because of the amendment of the plaint or an amendment in
law or in a case where the defect may be analogous to the defect of
jurisdiction.
13. 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 VII Rule 10 CPC and
the plaintiff can present it before the court having competent
jurisdiction.
In such a factual matrix, the plaintiff is entitled to
exclude the period during which he prosecuted the case before the
court having no jurisdiction in view of the provisions of Section 14
of the Limitation Act, and may also seek adjustment of court fee paid
in that court.
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.
14. There can also be no quarrel with the settled legal proposition
that the Executing Court cannot go behind the decree. Thus, in absence
of any challenge to the decree, no objection can be raised in
execution. (Vide: Bhawarlal Bhandari v. Universal Heavy Mechanical
Lifting Enterprises AIR 1999 SC 246; Dhurandhar Prasad Singh v. Jai
Prakash University & Ors., AIR 2001 SC 2552; Rajasthan Financial
Corpn. v. Man Industrial Corpn. Ltd., AIR 2003 SC 4273; Balvant N.
Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR
2004 SC 4377; and Kanwar Singh Saini v. High Court of Delhi, (2012) 4
SCC 307).
15. In the instant case, a copy of the decree has not been filed by
either of the parties.
The judgment and order dated 21.9.2006 shows
that the plaints were received and registered on 24.3.1986.
The
respondent cannot be permitted to take advantage of a mistake made by
the court and raise a technical objection to defeat the cause of
substantial justice.
The legal maxim, ‘Actus Curiae Neminem Gravabit’
i.e. an act of Court shall prejudice no man, comes into play. (See:
Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084; and
Bhagwati Developers Private Ltd. v. Peerless General Finance
Investment Company Ltd. & Ors., AIR 2013 SC 1690).
16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v.
Yogeshbhai Ambalal Patel & Anr., AIR 2012 SC 3285, while dealing with
the issue held:
“21. A person alleging his own infamy cannot be heard at any
forum, what to talk of a Writ Court, as explained by the legal
maxim ‘allegans suam turpitudinem non est audiendus'. If a party
has committed a wrong, he cannot be permitted to take the
benefit of his own wrong….
This concept is also explained by the legal maxims
‘Commodum ex injuria sua non habere debet’; and 'nullus commodum
capere potest de injuria sua propria'.”
17. Thus, the respondent cannot take the benefit of its own mistake.
Respondent instituted the suit in Civil Court at Mehsana which
admittedly had no jurisdiction to entertain the suit. In spite of the
fact that the civil suit stood decreed, the High Court directed the
court at Mehsana to return the plaint in view of the provisions of
Order VII Rule 10 CPC. Thus, the respondent presented the plaint
before the Civil Court at Surat on 3.2.1999.
18. The judgment and decree dated 21.9.2006 clearly provided for
future interest at the rate of 12 per cent per annum from the date of
filing of the suit till the realisation of the amount.
The Executing
Court vide judgment and decree dated 28.9.2007 rejected the claim of
the respondent observing that the respondent had wrongly filed suit at
Mehsana and the said court had no jurisdiction, and the “wrong doer
cannot get benefit of its own wrong” i.e. the benefit of interest on
the amount from the date of filing the suit in Mehsana court.
The
Appellate Court in its order dated 12.3.2010 reiterated a similar view
rejecting the appeal of the respondent observing that “a public
undertaking cannot be penalised for the mistake committed by the
plaintiff by choosing a wrong forum”.
Before the High Court when the
matter was taken up on 14.9.2010, a similar view had been reiterated
that the respondent cannot be allowed to take advantage of the words
“from the date of the suit”, and conveniently overlook its own wrong
of initially filing the suit in 1986 in the court at Mehsana.
Though
the court did not have jurisdiction, the plaintiff/respondent is now
claiming interest for the period from 1986 to 1999 i.e. for 13 years
by taking advantage of its own wrong and for that purpose, the
plaintiff/respondent is trying to misconstrue the words mentioned by
the learned trial court in the operative portion of the judgment dated
21.9.2006, viz., from the date of filing of the suit.
However, while
passing the impugned order, the High Court has used the language that
the case stood transferred from the Mehsana court to the court at
Surat and, therefore, interest has to be paid from the date of
initiation of the suit at Mehsana i.e. from 1986 and in view thereof,
allowed the claim.
19. We are of the considered view that once the plaint was presented
before the Civil Court at Surat, it was a fresh suit and cannot be
considered to be continuation of the suit instituted at Mehsana. The
plaintiff/respondent cannot be permitted to take advantage of its own
mistake instituting the suit before a wrong court. The judgment and
order impugned cannot be sustained in the eyes of law.
20. In view of the above, appeals are allowed. The judgment and
decree impugned are set aside. The judgments and orders of the
Trial/Executing Court as well as of the Appellate Court are restored.
There shall be no order as to costs.
….………………..........J. (DR.
B.S. CHAUHAN)
…...................................J.
(S.A. BOBDE)
NEW DELHI;
October 7, 2013
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