IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 AS.No. 517 of 1996() -------------------- OS.896/1992 of PRINCIPAL SUB COURT,ERNAKULAM .................... PLAINTIFF:APPELLANT(S): ------------------------------------------ V.R.KRISHNAN NAIR, S/O.RAMAN PILLAY, KARIKKULAM BUILDINGS, T.D.ROAD, ERNAKULAM, COCHIN - 682 011. NOW RESIDING AT PERUMPANAKUZHIYIL, MATTAKKARA P.O.,AKALAKKUNNAM VILLAGE, KOTTAYAM TALUK AND DISTRICT. BY ADVS. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN. DEFENDANTS/RESPONDENT(S): -------------------------------------------------- 1. P.MADHAVIKUTTY AMMA, D/O.PAPPY AMMA, 11/59, “GEETHA BHAVAN”, P.O.KDANGOOR, KOTTAYAM DISTRICT. 2. P. JANAKY AMMA, D/O.PAPPY AMMA, ..DO... R1 & R2 BY ADVS. SRI.M.MOHAMED NAVAZ, SRI. R.PADMARAJ. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.3191/1996 IN AS.NO.517/1996 DISMISSED 12/07/2010 SD/- M.N.KRISHNAN,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NO.517 OF 1996 ............................................. Dated this the 12th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the 1st Additional Subordinate Judge's Court, Ernakulam in O.S.No.896/1992. The suit is one for realisation of the amount due under a promissory note alleged to be executed by the defendants. It is also the case of the plaintiff that the defendants had also handed over their documents as security for the loan transaction. 2. The defendants on the other hand would contend that the plaintiff has not advanced any amount and they have not borrowed any amount from the plaintiff. According to them, the first defendant's husband had borrowed some amount from the son-in-law of the plaintiff and towards that transaction as security, the defendants have signed in some blank papers and it had been utilized for creating documents to file the false case. The trial court found that it has no territorial jurisdiction and dismissed the suit. 3. At the outset it has to be stated that if the court finds : 2 : A.S.NO.517 OF 1996 that there is no territorial jurisdiction, then necessarily the court can only return the plaint for presentation before the proper court. Dismissal is not warranted and it is against law. Unfortunately, the court has intertwined everything and almost given a verdict on the case in stead of finding out the jurisdictional aspect. If the court finds that it has no territorial jurisdiction, it goes without saying and it cannot try the case on merits. 4. The main point relied on by the court below is the signature of Aravindan who is shown as the second witness in the document. According to the plaintiff, it was at his residence at Ernkulam the transaction took place when the plaintiff had come over there for treatment. This Aravindan would depose that he had not signed the document on the date of execution, but had done it after four months. In the chief examination he would depose that he had signed the promissory note as a witness and thereafter amount was advanced. In another portion he would depose that he did not sign the promissory note on that day, but about four months later. He would depose in the cross examination : 3 : A.S.NO.517 OF 1996 that he had signed the promissory note only after 2.11.1992. The plaint was prepared on 2.11.1992 and filed on 3.11.1992. 5. The learned counsel for the defendants had brought to my notice that along with the injunction application a copy of the promissory note had been sent and it does not contain the signature of this Aravindan. It has been highlighted to hold that the transaction did not take place at Ernakulam. On the contra the learned counsel for the appellant would contend that Ext.A11 is a document sent by the first defendant to the plaintiff and she had admitted in her examination that it is in her hand writing. Ext.A11 is addressed to the plaintiff in the Ernakulam address. Further it is the case of the plaintiff that he was undergoing ayuvedic treatment for a period of 8 months and it was during that time the transaction had taken place. 6. So I think the matter requires little more elaborate consideration on the jurisdictional aspect first. Therefore I am inclined to set aside the judgment and decree and remit the case back to the trial court and decide the issue of : 4 : A.S.NO.517 OF 1996 jurisdiction as a preliminary issue by permitting the parties to adduce evidence on that aspect. It need not be clubbed with the merits of the case for the reason that if there is no jurisdiction, the court has to return the plaint and not to dismiss the suit. Therefore the judgment and decree of the trial are set aside and the matter is remitted back to the trial court for consideration of the issue regarding territorial jurisdiction as a first issue and thereafter if it is found that the said court has no jurisdiction, let it be returned to the plaintiff for presentation before the proper court and if it finds otherwise, the court shall proceed with the trial of the case and dispose of the matter in accordance with law. I make it very clear that the discussions made in this judgment shall not be taken as a view rendered by this Court to arrive at a decision. Parties are directed to appear before the trial court on 19.8.2010. Being a very old matter, let the matter have an expeditious trial. Transmit the records also emergently to the concerned court. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.517 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.517 OF 1996 ............................................. 12th day of July, 2010. J U D G M E N T