1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.1982 of 2009 (Smt. Prabha wd/o Ramesh Arora v. Surindrasingh Manjeetsingh Bagga) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri R.S. Charpe, Advocate for Petitioner. Coram : R.C. Chavan, J. Dated : 3 rd March, 2010 1. On 4 th May, 2009, notice for final disposal at the admission stage was issued to the respondent. The notice has been shown to have been served on the respondent. The respondent had, however, chosen not to appear in the matter. Therefore, by order dated 23 rd November, 2009, since the matter was to be decided in the absence of the respondent, record and proceedings were called and have been received. 2. I have heard the learned counsel for the petitioner. 3. This petition is directed against the order passed by the learned Joint Civil Judge, Senior Division, Amravati, whereby he refused to frame and decide the issue as to the jurisdiction of the Court at Amravati to try the suit as a preliminary issue. 4. The learned counsel for the petitioner, who is the defendant in the suit, states that the respondent had filed a suit 2 claiming a declaration that the sale receipt dated 14-6-2007 was meant to convey Vehicle No.MH-31/CN-3350 to the plaintiff and that since then the plaintiff had become the owner of the vehicle. The sale receipt was admittedly executed at Nagpur in terms of the pleadings in para 3 of the plaint. The sale receipt recounts that the possession of the vehicle was delivered at that time – obviously at Nagpur. The plaintiff had claimed a permanent mandatory injunction to direct the present petitioner to clear the loan on the vehicle and to furnish requisite documents for effecting the transfer of the vehicle in the name of the plaintiff with Regional Transport Office at Amravati. He had also sought a permanent injunction restraining the present petitioner from taking possession of the vehicle from the plaintiff by using forcible means. The learned counsel for the petitioner states that the police have, however, seized the vehicle in a criminal case and the vehicle has been delivered to the petitioner on supratnama. 5. By written statement filed by the present petitioner, a preliminary objection to the jurisdiction of the Trial Court was taken. It was stated that the entire cause of action had arisen at Nagpur, since the petitioner is resident of Nagpur, and, therefore, in view of the provisions of Section 20 of the Code of Civil Procedure, only the Courts at Nagpur would have jurisdiction to try the suit. 6. The petitioner filed an application Exhibit 28 requesting the Court to frame a preliminary issue about jurisdiction and to try it first. This application was opposed by the respondent/plaintiff on the ground that the issue of territorial jurisdiction is always a mixed question of law and fact and it can 3 be decided only after recording the evidence and an application under Order XIV Rule 2 of the Code of Civil Procedure could be filed only after framing of the issues. It seems that at that time, the issues were not framed. But from the record, which is made available for my perusal, it appears that the issues have been framed on 20 th November, 2009, and it is significant that the issues framed do not include the issue of territorial jurisdiction, though an objection was specifically taken by the petitioner in the very first para of his written statement. Issue No.6, which remotely relates to jurisdiction, reads as under : “Issue No.6 : Whether the suit is properly and correctly valued for both the purposes i.e. for pecuniary jurisdiction and payment of Court fees? If not what order? 7. It seems that the learned Trial Judge had been swayed by some considerations, which were not material for deciding that application, inasmuch as he referred to the habit of the petitioner to change Advocates from time to time, move applications one after the other. He should have seen that this could not have been even mentioned in the order which he passed. Ordinarily, he would have been right in concluding that the question of jurisdiction could not be dealt with as a preliminary issue if it involves recording of evidence in respect of the transaction in issue. Since the evidence on the merits of the matter as well as on the question of jurisdiction would overlap and if the Court was to spend its time in recording evidence in respect of the transaction, it could as well defer deciding the jurisdictional issue till all the issues were framed and the evidence on all the issues was tendered. The learned 4 Judge could, therefore, have framed a preliminary issue but deferred deciding the said issue till the case was ripe for hearing. 8. The learned counsel for the petitioner submitted that his client does not want to tender any evidence in the Court and he is ready to go by the averments in the plaint as to the place at which the cause of action arose as they are. If that be so, the learned Judge should have seen that the question of jurisdiction could have been decided by him without recording any evidence. If the petitioner was ready to take such a risk of the jurisdictional issue being decided with reference to the plaint- allegations alone, the learned Judge could have heard the parties and decided the issue on the material which was available before him and he need not have deferred the decision on the jurisdictional issue. 9. The learned counsel for the petitioner relied on a judgment of this Court in Deepak Dhansing Patil v. Girish Damodar Deo and another, reported at 2005(3) Mh.L.J. 1009. I have gone through the judgment. It is doubtful whether a Court could dismiss a suit once it is found that it has no jurisdiction. In such a case, the proper course, or rather the only course open to the Court is to return the plaint for its presentation to proper Court unless some special law ousts the jurisdiction of all the Civil Courts. But when the objection to the jurisdiction is based on accrual of cause of action in different jurisdiction, that is objection as to the territorial jurisdiction or to the pecuniary jurisdiction because of improper valuation of the suit, the plaint would have to be ordinarily returned. In any case, that is not the question to be decided here. Since the learned counsel for the 5 petitioner states that the petitioner does not want to tender any evidence and he is ready to accept the averments in the plaint as true only for the purpose of ascertaining jurisdiction, the Trial Court ought to have framed and decided the issue of jurisdiction first. 10. In view of this, the petition is allowed. The impugned order is quashed and set aside. In the very peculiar facts, the learned Judge shall frame necessary issue and decide it first on the basis of the plaint-averments after hearing the parties. Judge. pdl