THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION NOS.5123, 5124 AND 5128 OF 2008 COMMON ORDER: 24th JUNE 2010 C.R.P.NO.5123 OF 2008 BETWEEN: M/S TARA TRANSPORTS REP. BY ITS WORKING PARTNER MR.K.V.V.S.N.MURTHY .. PETITIONER AND NATIONAL INSURANCE COMPANY AND ANOTHER .. RESPONDENTS C.R.P.NO.5124 OF 2008 BETWEEN: M/S TARA TRANSPORTS REP. BY ITS WORKING PARTNER MR.K.V.V.S.N.MURTHY .. PETITIONER AND NATIONAL INSURANCE COMPANY AND ANOTHER .. RESPONDENTS C.R.P.NO.5128 OF 2008 BETWEEN: M/S TARA TRANSPORTS REP. BY ITS WORKING PARTNER MR.K.V.V.S.N.MURTHY .. PETITIONER AND NATIONAL INSURANCE COMPANY AND ANOTHER .. RESPONDENTS THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION NOS.5123, 5124 AND 5128 OF 2008 COMMON ORDER: Since common questions arise for consideration in all these three Civil Revision Petitions they were heard together, and are now being disposed of by a common order. The defendant in the three suits is the petitioner in these three Civil Revision Petitions. C.R.P.No.5123 of 2008 arises out of O.S.No.1044 of 1999 initially filed before the XI Junior Civil Judge, City Civil Court, Secunderabad, which was later transferred to III Senior Civil Judge, City Civil Court, Secunderabad as O.S.No.24 of 2002 and, on the plaint filed in the said suit being returned, was again re-numbered as O.S.No.2131 of 2006 on the file of Principal Senior Civil Judge, Ranga Reddy District. C.R.P.No.5124 of 2008 arises against an interlocutory order passed in O.S.No.1230 of 1999 as filed before the XI Junior Civil Judge, City Civil Court, Secunderabad which was transferred to the Court of the III Senior Civil Judge, Secunderabad as O.S.No.96 of 2002 and, on the plaint being returned, was re-numbered as O.S.No.2132 of 2006 before the Principal Senior Civil Judge, R.R. District. C.R.P.No.5128 of 2008 arises against O.S.No.270 of 1999 before the III Senior Civil Judge, City Civil Court, Secunderabad and, on the plaint being returned, the said suit was re-numbered as O.S.No.2130 of 2006 before the Principal Senior Civil Judge, R.R. District. It would suffice for the disposal of all these three revisions petitions, if the facts stated in C.R.P.No.5123 of 2008 are noted. The respondents- plaintiffs filed O.S.No.1044 of 1999 before the XI Junior Civil Judge, City Civil Court, Secunderabad on 20.7.1999 as the cause of action, as averred in the plaint, is said to have arisen on 21.7.1996. The Suit was instituted on 20.7.1999 and filed within time. The petitioner- defendant did not, therefore, take the plea of limitation. The defendant filed written statement on 20.12.1999 and raised the plea of lack of territorial jurisdiction. The Trial court framed several issues including on the question of territorial jurisdiction. Trial was completed in the suit in August, 2006, and the Suit was posted for arguments. While matters stood thus, the plaintiff filed I.A.No.517 of 2006, under Order VII Rule 10 and 10A of CPC on 16.8.2006, seeking return of the plaint. The Senior Civil Judge, City Civil Court, Secunderabad, by his order dated 24.8.2006, returned the plaint, and directed the parties to appear before the Principal Senior Civil Judge, R.R. District on 28.9.2006. The Principal Senior Civil Judge called for the records from the Court of the III Senior Civil Judge, City Civil Court, Secunderabad by his order dated 23.1.2007 and posted the matter for arguments. The petitioner-defendant filed I.A.No.3985 of 2007 on 21.2.2007 to set aside the order posting the suit for arguments, and requested the court instead to post the suit for filing of the written statement. The Court below dismissed the I.A. by its order dated 14.10.2008. Aggrieved thereby the present revision petitions. Sri.P.N.A.Christian, Learned counsel for the petitioner-defendant, would submit that, on the plaint being returned and on the date on which the parties are directed under Order VII Rule 10A of CPC to appear before the subsequent Court, it is that date of appearance which is to be reckoned as the date of institution of the suit necessitating the subsequent Court to permit a written statement to be filed. Learned counsel would point out that, while the plea of limitation was not available when the Suit was originally instituted before the XI Senior Civil Judge, City Civil Court, Secunderabad, such a plea would now be available to the petitioner on the Suit being instituted afresh before the Principal Senior Civil Judge and it is only if the petitioner- defendant is permitted to file a written statement can such a plea of limitation be taken. Leaned counsel would rely on the judgment of the Supreme Court i n AMAR CHAND v. UNION OF INDIA[1] and the judgment of this court in M.K.ANNAPURNAMMA v. M.SESHAIAH[2] in support of his contention that a suit can be said to have been instituted only when it is presented in the subsequent Court, and not the date on which it was instituted before the court which returned the plaint. The court below, in the order under revision, observed that a plaint could be returned at any stage, under Order VII Rule 10 and 10-A of CPC, from the filing of the Suit till the arguments; in the case on hand, the plaint was returned after the matter was posted for arguments and, in such view of the matter and in the light of the judgment of the Supreme Court in JOGINDERTULI v. S.L.BHATIA[3], the Court is required to proceed only from the stage at which the plaint was returned to the parties to be presented before the subsequent court, and that the petitioner’s-defendant’s request that they be permitted to file a written statement did not merit acceptance, as before the former Court issues were already framed, trial was held and the matter was posted for arguments. Order VII Rule 10 CPC relates to return of the plaint and, under sub- rule (1) thereof, 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 relates to the power of the Court to fix a date of appearance in the court where the plaint is to be filed after its return and under sub-Rule (1) thereof 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 (2) enables the plaintiff to make an application specifying the court in which he proposes to present the plaint after its return, requesting the court to fix a date for the appearance of the parties in the said court; and requesting that the notice of the date so fixed may be given to him and to the defendant. Sub-Rule (3) of Order VII Rule 10-A CPC enables the court to return the plaint notwithstanding that the order for return of the plaint was made by it on the ground that it has no jurisdiction to try the suit. Under sub-Rule 4, where notice of the date for appearance is given under sub-rule (3)(b), the said notice shall be deemed to be a summons for the appearance of the defendant in the court in which the plaint is presented on the date so fixed by the court by which the plaint was returned. The notice given by the Principal Senior Civil Judge, R.R. District, informing the petitioner-defendant of the date on which he was required to appear is, under sub-rule 4(b) of Order VII Rule 10 CPC, to be deemed as the summons for the appearance of the defendant in the Court in which the plaint is presented. Order V Rule 1(1) relates to summons and, when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant. Under Order VII Rule 10-A (4)(b) CPC the notice given by the former Court, fixing the date of appearance in the subsequent Court, is required to be taken as summons to the defendant to file the written statement. It is evident, therefore, that on such a notice being given, the defendant in the suit is entitled to file a written statement afresh before the subsequent court, and the subsequent court is not entitled to proceed from the stage where the matter was pending before the former court which lacked the territorial jurisdiction to decide the suit. Reference can usefully be made to AMAR CHAND (1) wherein the Supreme Court observed as follows: “ …….If the plaintiff had filed the suit in the trial Court on March 2, 1959, then, certainly the suit would have been within time under Section 4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the plaintiff would be entitled to take advantage of the provisions of Section 14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in Section 4 in the Karnal Court. Section 14 of the Act only provided for the exclusion of the time which the plaintiff has been been prosecuting with due diligence another civil proceeding against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat Courts, the suit would not be within time as the filing of the suit in the Karnal Court was beyond the period of limitation. It was, however, argued by Counsel for the appellant that the suit instituted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial Court. We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the ……. Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it on that day in the trial Court….” This Court in M.K.ANNAPURNAMMA (2) held as follows: “ 18. ….Thus, it is a settled position of law that the court having no pecuniary jurisdiction when entertains a suit but ultimately when it found that it lacks jurisdiction and returned the plaint for presentation to the proper court, it is not a continuation of the earlier proceedings initiated in the competent court and the starting point of the date on which the suit is instituted is the date of re-presentation to the competent court having jurisdiction. All the proceedings taken in the court of first instance are thereby rendered void and of no consequence. Thereby, the proceedings before the court of first instance are nullity. In this case, the court of the District Munsif itself found to have no jurisdiction to entertain the suit and returned the plaint for presentation to the proper court. Thereafter, it must be held that the court of the District Munsif lacks inherent jurisdiction to seize of the cause. Under those circumstances, the ad-interim injunction issued by the court of the District Munsif is nothing but a nullity……” It is evident from the aforesaid judgments that, on a plaint being returned for presentation before the appropriate court, it does not amount to continuation of the earlier proceedings initiated, and the starting point is the date on which the suit is instituted, the date of re-presentation before the competent court having jurisdiction and, since the suit must be deemed to have been instituted afresh before the Principal Senior Civil Judge, R.R. Court, the petitioner’s request that the matter be posted for written statement of the defendant, and not for arguments, is valid. The Court below has erred in holding that the matter is required to be proceeded with from the stage at which the Suit was pending before the former court. In JOGINDER TULI (3) on which reliance is placed by the Court below, the Supreme Court observed that normally when a plaint is directed to be returned for presentation before the appropriate court it has to start from the beginning. The Supreme Court in the circumstances of the said case, however, directed that the Suit in question should be proceeded from the stage at which the Suit stood transferred. The order of the Supreme Court, in JOGINDER TULI (3) is an order passed in exercise of its jurisdiction under Article 142 of the Constitution of India. The power to do complete justice vests only with the Supreme Court and no other. It is evident, from the provisions of Order VII Rule 10 and Rule 10-A (3) and (4) (b) r/w Order V Rule 1(1) CPC, that the suit is deemed to have been instituted only when it is presented in the subsequent Court and that the petitioner-defendant is entitled to file a fresh written statement in reply thereto. The order of the Court below, in the aforesaid three Civil Revision Petitions, is accordingly set aside and the I.As are allowed. The Court below shall permit the petitioner herein to file his written statement and proceed to decide the suit, thereafter, in accordance with law. The three Civil Revision Petitions are accordingly, allowed. 24th June 2010. ( RAMESH RANGANATHAN, J ) tnb THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION NOS.5123, 5124 AND 5128 OF 2008 COMMON ORDER: 24TH June 2010. [1] AIR 1973 SC 313 [2] 1983 (1) APLJ 311 [3] (1997)1 SCC 502