HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case CLR No. 2 of 2008 Ganga Singh Vs. Union of India and others. Approved for reporting Date of Decision: 04-01-2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL CIVIL REVISION NO.2 OF 2008 Ganga Singh, S/o Bhagwan Singh, R/o Village and Post – Chaparaon, Tehsil – Tharali, District – Chamoli. ………Revisionist/Defendant. Vs. 1. Union of India, through C.O.C. Composite Signal Regiment, C/o 56 A.P.O. ……..Respondent / Plaintiff. 2. The National Insurance Company Ltd., Divisional Office –4 Pyarelal Building, 42 – Janpath, New Delhi. 3. Sri Pratap Singh, S/o Darban Singh, R/o Village – Tuyla, P.O. Harmani, Tehsil – Tharali, District – Chamoli. …………Respondents. Dated : 4.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri Pankaj Purohit, counsel for the revisionist and Sri Arvind Vashisth, A.S.G., for the respondent no.1. 2. By the present Civil Revision filed under Section 115 of the Code of Civil Procedure, revisionist has prayed for setting aside the judgment and order dated 25.10.2007 passed by District Judge Chamoli in Original Suit No. 60 of 1991 Union of India Vs. Ganga Singh and others, whereby the District Judge has recorded the finding that the civil court has no jurisdiction to entertain the suit and therefore, has transmitted the entire original record of the suit to Motor Accident Claims Tribunal. 3. Briefly stated, an original suit was filed by the plaintiff / Union of India being O.S. No. 60 of 1991 for a decree of Rs. 43,677.76 paisa towards the compensation. 4. According to the plaintiff, he is the owner of the Joga Jeep No. B.A. 84 B-28229E. Defendant No. 1 is the owner of Truck No. UGY 8672 who has appointed the defendant no. 2 as driver of the said truck on 27.5.1987. On 27.5.1987, the said truck hit the jonga and accident has taken place near Kulsari, Karnprayag – Gwaldum Motor Marg. The report was lodged for this accident at Police Station Karnprayag on 28.5.1987. The criminal case was registered against the defendant no. 2 being Case No.; 10 / 1987. According to the case of the plaintiff, he has spent a sum of Rs. 87,355.52 towards the repairing of the vehicle. Thus, a suit has been filed for recovery of the said amount. 5. A written statement was filed on behalf of the defendant, who was the owner of the turck No. UGY 8672. He has stated that there was no rash and negligent driving. In Paragraph 19 of the written statement, it has been stated that the vehicle in question was insured with the national Insurance Company. In paragraph 20, it has also been stated that so far as recovery of the amount is concerned, tribunal has jurisdiction to try the suit and the civil court has no jurisdiction to pass any order. The trial Court has decreed the suit and has passed the order for recovery of the amount. The said order was challenged by way of Appeal No. 607 of 1999 (New No. 358 of 2001) and the appeal was allowed with the following observations: “17. Counsel for the appellant has also stated that the vehicle was also insured. This plea has been taken in paragraph 19 by way of amendment dated 2.7.1993. The same is quoted below:- **fd mRrjnkrk izfroknh dk mDr okgu us’kuy bU’;ksjsal dEiuh] 4 I;kjs yky fcfYMax 42&tuiFk] ubZ fnYyh chek dEiuh ds ikl nq?kZVuk vof/k esa chekd`r Fkk vkSj Fkk vkSj rhljs Ik{k ds uqdlku ds fy, chekd`r FkkA bl izdkj ;fn dksbZ izfrdj curk Hkh gS rks chek dEiuh mlds fy, ftEesnkj gSA** 18. In view of the aforesaid, the matter is remanded to the trial court for deciding afresh in the light of the observations made above. In case the civil court comes to the conclusion that the tribunal along has jurisdiction he will transmit the papers to the tribunal for deciding in accordance with law. 19. Subject to the aforesaid, appeal is allowed and remanded to the trial court for deciding afresh within a period of two months. No order as to costs.” 6. On the basis of the aforesaid order, District Judge has passed the order for transmitting the entire record to the Motor Vehicles Claims Tribunal constituted under Section 165of the Motor Vehicles Act. 7. Counsel for the appellant has submitted that under Order 7 Rule 10 of the Code of Civil Procedure, the plaint should have been returned for filing before the appropriate court once it is found that the civil court has no jurisdiction. He has referred Order 7 Rule 10 of the Code of Civil Procedure: “[140][10. Return of plaint- (1) [141][Subject to the provisions of rule 10A, the plaint shall] at any state of the suit be returned to be presented to the Court in which the suit should have been instituted. [142][Explanation.-For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule] (2) procedure on returning plaint-On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. 8. The aforesaid order 7 Rule 10 is subject to Rule A of the Code of Civil Procedure, where the court has power to fix a date of appearance in case plaint is returned. Rule 10 A is quoted below: “[143][10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return-(1) 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. (2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the Court- (a) specifying the Court in which he proposes to present the plaint after its return, (b) praying that the Court may fix a date for the appearance of the parties in the said Court, and (c) requesting that the notice of the date so fixed may be given to him and to the defendant. (3) Where an application is made by the plaintiff under sub- rule (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. (4) Where the notice of the date for appearance is given under sub-rule (3), (a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded otherwise directs, and (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. (5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.” 9. In view of the above, the exercise of jurisdiction by the court for transmitting the entire records to the claims tribunal does not warrant for any interference. Further, the applicant cannot be allowed to approbate and reprobate as he has challenged the earlier order by way of appeal and now he cannot be allowed to file the revision after the order has been passed for the transmission of the record. 10. Since the Civil Court has directed for transmission of the entire record, the Motor Vehicles Act, I do not find any illegality in the said order and the order impugned does not amount to case decided as contained under Section 115 of the Code of Civil Procedure, therefore, the revision deserves to be dismissed. However, it will be open for the revisionist to raise all the legal pleas, which are available to the revisionist when the matter goes before the Claims Tribunal concerned. 11. Revision is dismissed. No order as costs. (Rajesh Tandon, J.) 4.1.2008 Rathour