If a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint.
It is no more resintegra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter. This Court considering a similar clause restricting jurisdiction by consent in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. [2013 (9) SCC 32], observed as follows:
“32. ….It is a fact that whilst providing for jurisdiction clause in the agreement the words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties—by having Clause 18 in the agreement —is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.”
This was reiterated in State of West Bengal v. Associated Contractors [2015 (1) SCC 32], holding that presentation of the plaint in a court contrary to the exclusion clause could not be said to be proper presentation before the court having jurisdiction in the matter.
That brings us to the order of the reference to be answered by us. In Joginder Tuli [supra] the original court lost jurisdiction by reason of the amendment of the plaint. The Trial Court directed it to be returned for presentation before the District Court. Supreme Court observed as follows:
“5. … 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.”
The observations are very clear that the suit has to proceed afresh before the proper court.
In case of Modern Construction referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., Amar Chand Inani v. The Union of India, Hanamanthappa v. Chandrashekharappa [1997 (9) SCC 688], Harshad Chimanlal Modi (II) [supra] and after also noticing Joginder Tuli [supra], arrived at the conclusion as follows:
“17. 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 7 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.”
Order VII Rule 10-A, as the notes on clauses, indicates was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (with effect from 01.02.1977) for the reason:
“New Rule 10-A is being inserted to obviate the necessity of serving summonses on the defendants where the return of plaint is made after the appearance of the defendant in the suit.”
Also, under sub-rule (3) all that the Court returning the plaint can do, notwithstanding that it has no jurisdiction to try the suit is:
“10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.
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(3) Where an application is made by the plaintiff under subrule (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.”
The language of Order VII Rule 10-A is in marked contrast to the language of Section 24(2) and Section 25(3) of the Code of Civil Procedure which read as under:
“24. General power of transfer and withdrawal.
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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
Power of Supreme Court to transfer suits, etc.
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(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special
directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.”
The statutory scheme now becomes clear. In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.
Power of Superior Court
In Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer [AIR 1965 SC 195], this court observed as follows:
“7. …The question as to whether the jurisdiction of this Court under Article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case.”
In Balraj Taneja v. Sunil Madan [(1999) 8 SCC 396] it was observed as follows :
“47….It is true that the jurisdiction under Article 136 of the Constitution is a discretionary jurisdiction and notwithstanding that a judgment may not be wholly correct or in accordance with law, this Court is not bound to interfere in exercise of its discretionary jurisdiction….”
In ONGC Ltd. v. Sendhabhai Vastram Patel [2005 (6) SCC 454], it was observed:
“23. It is now well settled that the High Courts and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India may not strike down even a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the appellant in a given case although the Court may find the same to be justified in law.”
The nature of jurisdiction under Article 136 of the Constitution was again considered in ShinEtsu Chemical Co. Ltd. (2) v. Vindhya Telelinks Ltd. [2009 (14) SCC 16]. In Karam Kapahi v. Lal Chand Public Charitable Trust [2010 (4) SCC 753], it was observed as follows:
“65. The jurisdiction of this Court under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary in nature. It is unfettered and not confined within definite bounds. Discretion to be exercised here is subject to only one limitation and that is the wisdom and sense of justice of the Judges (see Kunhayammed v. State of Kerala [2000 (6) SCC 359]. This jurisdiction has to be exercised only in suitable cases and very sparingly as opined by the Constitution Bench of this Court in Pritam Singh v. State [AIR 1950 SC 169]…”
R.K. Roja v. U.S. Rayudu [JT 2016 (6) SC 440] (Para 8)State of West Bengal v. Associated Contractors [2015 (1) SCC 32] (Para 14)
Oil and Natural Gas Corporation Ltd. v. Modern Construction & Co. [2014 (1) SCC 648] (Para 2)
Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. [JT 2013 (10) SC 35] (Para 13)
Karam Kapahi v. Lal Chand Public Charitable Trust [2010 (4) SCC 753] (Para 26)
ShinEtsu Chemical Co. Ltd. (2) v. Vindhya Telelinks Ltd. [JT 2009 (4) SC 537] (Para 26)
Hasham Abbas Sayyad v. Usman Abbas Sayyad [JT 2007 (1) SC 616] (Para 6)
Harshad Chimanlal Modi (II) v. DLF Universal Ltd. [JT 2005 (10) SC 567] (Para 6)
ONGC Ltd. v. Sendhabhai Vastram Patel [JT 2005 (7) SC 465] (Para 25)
Balraj Taneja v. Sunil Madan [JT 1999 (6) SC 473] (Para 24)
Joginder Tuli v. S.L. Bhatia [JT 1996 (11) SC 19] (Para 2)
Hanamanthappa v. Chandrashekharappa [JT 1997 (2) SC 528] (Para 16)
Amar Chand Inani v. The Union of India [1973 (1) SCC 115] (Para 6)
Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer [AIR 1965 SC 195] (Para 23)
Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. [AIR 1929 PC 103] (Para 6)