: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.52 OF 2009 Kopargaon Sahakari Sakhar Karkhana Ltd. ... Appellant V/s. Kadwa Sahakari Sakhar Karkhana Ltd. & Ors. ... Respondents Mr.Vaibhav Joglekar with S.S. Kanetkar for Appellant Mr.R.M. Haridas i/b P.N. Joshi for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 19, 2009 P.C.: 1. This appeal arises from the order passed by the trial Court returning the plaint to Respondent No.1 to present the same to the proper Court in accordance with Order 7 Rule 10 and 10A. 2. The notices which were issued to the respondents have been served. However, only Respondent No.1 the original plaintiff is represented in this Court. Since the other respondents were defendants and have not challenged the orders passed by the trial Court this matter has been heard finally at the stage of admission. 3. A suit was filed by the plaintiff respondent No.1 being Special Civil Suit No. : 2 : 352 of 2005 against the applicant and the other respondents for recovery of a sum of Rs.31,50,000/-. This suit was proceeded by a notice of 8.5.2005 which was replied by the applicant on 29.9.2005. Written statement was filed by the defendants on various grounds. Issues were framed thereafter by the trial Court based on the pleadings. The applicant contended that additional issues should be framed regarding the maintainability of the suit for want of the mandatory notice u/s 164 of the Maharashtra Cooperative Societies Act (for short, hereinafter referred to as `MCS Act’). This application was filed on 17.8.2006. The trial Court rejected the application. The applicant thereafter moved another application under Order 7 Rule 11D of the Civil Procedure Code contending that since the suit was barred in view of the provisions of section 91 and section 164 of the MCS Act. Since his affidavit in lieu of evidence had already been filed by the plaintiff and the matter was posted for cross-examination the trial Court rejected the application on 28.11.2006. 4. The applicant then moved this Court by filing writ petition No.573 of 2007 in which both the orders passed by the trial Court were challenged. By the order of 4.7.2007, the impugned orders were set aside and this Court directed the trial Court to frame two issues namely, (i) whether the suit is maintainable for want of notice u/s 164 of the MCS Act (ii) whether the civil Court has jurisdiction to try the suit in view of section 91 of the MCS Act. 5. The aforesaid preliminary issues were heard by the trial Court. Evidence was also led on these issues. By its judgment dated 21.10.2008, the trial Court returned the plaint to the plaintiff for presentation before the appropriate forum. It further directed that the provision of Order 7 Rule 10A of the CPC be complied with. : 3 : Aggrieved by this order, the appellant has preferred the present appeal. The main contention of the learned Counsel appearing for the appellant is that the trial Court has erred in returning the plaint when it had categorically held that the suit was not maintainable in view of the fact that no notice had been issued u/s 164 of the MCS Act by the plaintiff prior to the filing of the suit and that the Court had no jurisdiction in view of Section 91 of the Act. He submits that the trial Court ought to have rejected the plaint under Order 7 Rule 11D since the suit was barred by the provisions of law. The learned counsel has submitted that the trial Court having accepted the contentions of the appellant that the suit was barred ought to have rejected the plaint. The question of filing it before the proper Court does not arise. According to the learned Counsel no notice has been issued u/s 164 of the MCS Act as held by the trial Court. He therefore submits that even assuming that the plaint was presented to a wrong forum i.e. the Civil Court, returning the plaint for presenting the same before the cooperative Court would not clear the way for adjudication of the dispute since no notice had been issued u/s 164. The learned counsel relies on several judgments which I will deal with presently. 6. Mr.Haridas, appearing for Respondent No.1, the original plaintiff, submits that the trial Court had committed no error by concluding that the plaint ought to be returned. He submits that once the trial Court had found that the subject matter of the suit touches the affairs of the society, the trial Court could only return the plaint for presenting it before the Cooperative Court which it has done in the present case. He further submits that trial Court could not have rejected the plaint since the Court inherently lacked the jurisdiction to decide whether the suit was maintainable. : 4 : 7. Under Order 7 Rule 10 of the Civil Procedure Code, a plaint can be returned at any stage of the suit for being presented to the Court in which the suit should have been instituted. The procedure under Order 7 Rule 10A is to be followed while returning the plaint. The plaint can be rejected under Order 7 Rule 11 where (a) it does not disclose a cause of action (b) the relief claimed is undervalued and the plaintiff fails to correct the valuation within the time stipulated by the Court (c) the relief though properly valued the plaint is insufficiently stamped (d) the suit appears from the statement in the plaint to be barred by any law (e) if the plaint is not file din duplicate and (f) the plaintiff fails to comply with the provisions of Rule 9. 8. Thus, from a bare perusal of Order 7 Rule 10 and Order 7 Rule 11 it is apparent that when there is an inherent lack of jurisdiction in the Court to decide a suit or indeed to pass any orders on the suit the plaint has to be returned to the plaintiff for filing it before the proper forum under Order 7 Rule 10. However, where the suit has been initiated in the proper forum the Court finds that it is barred because of certain provisions of law the plaint can be rejected under Order 7 Rule 11D. 9. In the case of Shetkari Sahakari Sakhar Karkhana Ltd., Sangli v/s. Narhari Balkrishna Tulpule, 1979 Mh.L.J. 210, a learned Single Judge considered whether a suit filed by an employee of the cooperative society against it was maintainable before the civil Court. The trial Court decreed the suit by concluding that it did have jurisdiction to decide the dispute. The learned Single Judge of this Court (Vaidya, J.) that the subject matter of the suit certainly touch the management or business of the society and therefore was not maintainable before the Civil Court. This Court also : 5 : held that the trial Court had erred in ignoring the provisions of section 164 of the MCS Act. The Court further concluded that the plaintiff’s suit was liable to be dismissed firstly because the civil Court had no jurisdiction u/s 9 of the CPC to entertain the suit. This judgment which has been cited by the learned Counsel appearing for the appellant does not help the appellant in any manner as it was a judgment wherein the final decree had been challenged by the cooperative Society. In the present case, what is to be considered is whether the plaint ought to be rejected as contended by the appellant or has been rightly been returned. 10. Another judgment relied on by the learned Counsel for the appellant is of Division Bench of this Court in the case of Mohan Meakin Ltd. v/s. The Pravara Sahakari Sakhar Karkhana Ltd., 1987 Mh.L.J. 503. This judgment arose in an appeal filed against the decree passed by the City Civil Court while deciding an issue regarding the Trade and Merchandise Marks Act. A suit was filed by the plaintiff before the City Civil Court contending that their trade mark had been infringed by the defendants. Several contentions were raised by the defendant cooperative society including the fact that the plaintiff had failed to give a statutory notice u/s 164 of the MCS Act. Preliminary issues were framed by the learned Single Judge of this Court and held that since the plaintiff had failed to give the statutory notice the suit was liable to be dismissed. The Division Bench of this Court confirmed the view of the learned Single Judge of this Court. This judgment again does not help the appellant. The judgment only indicates that if a notice u/s 164 of the MCS Act is not issued, then the suit is liable to be dismissed. There was no dispute that the learned Single Judge of this Court did have the jurisdiction to try the suit in view of the provisions of Trade and Merchandise Marks Act 1958. Thus, although the initiation of the suit was : 6 : before the appropriate forum, it had to be dismisses since the notice u/s 164 was not issued. 11. The learned Counsel has also relied on the judgment of the Allahabad High Court in the case of ITC Ltd. v/s. Rakesh Behari Srivastava & Ors., AIR 1997 ALLAHABAD 323. This judgement also deals with a rejection of a plaint for the lack of cause of action. The judgment further indicates that a duty is cast upon a Court to reject the plaint for disclosure of the cause of action. The next judgment cited by the learned Counsel for the appellant is that of Supreme Court in the case of Chief Engineer, Hydel Project & Ors., v/s. Ravinder Nath & Ors., 2008 AIR SCW 1412. The Court held that civil Court could not adjudicate a dispute as it fell within the ambit of the Industrial Disputes Act 1947. The Court while reiterating its earlier judgment in the case of Harshad Chiman Lal Modi vs. DLF Universal & Anr, (2005) 7 SCC 791 held that the objections to the territorial and pecuniary jurisdictions must be raised at the earliest possible opportunity and in any case before the settlement of issues. However, where a Court has no jurisdiction over the subject matter of the suit, it cannot take up the matter since any order passed by a Court having no jurisdiction is a nullity. The Supreme Court therefore observed that if the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judis. The objection to the jurisdiction could be take at any stage. 12. In the case of Hasham Abbas Sayyad v/s. Usman Abbas Sayyad & Ors., (2007) 2 SCC 355, the Supreme Court has held thus: “22. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has : 7 : been passed by the tribunal/court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to.” 13. The learned Counsel has also relied on the judgment of the Supreme Court in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh, 1993 AIR SCW 1439 and the case of Ajmer Kaur v. Punjab State & Ors., AIR 1991 PUNJAB & HARYANA 12. 14. The Supreme Court in the case of Athmanathswami Devasthanam vs.K. Gopalaswami Ayyangar, AIR 1965 SC 338 has held that when a Court has no jurisdiction over the subject matter of the suit it cannot decide any questions on merits. It can simply decide on the question of jurisdiction and on arriving at the conclusion that it had no jurisdiction over the matter must return the plaint. A similar view has been taken by a learned Single Judge of this Court in the case of Smt.Ganga Coelho & Ors. v/s. Smt.Neena Pinto & Ors., AIR 1997 BOM 252. Thus, there can be no doubt that when a Court inherently lacks the jurisdiction to decide the suit the plaint must be returned for being presented before the appropriate forum. If the Court finds that the suit cannot be entertained by it as it should have been filed before another forum in my opinion, the only cause open for it is to return the plaint for being filed in the proper Court. Thus, in case of a jurisdictional defect it is Rule 10 which comes into play. 15. However, the plaint is admitted by a Court which is competent to decide the subject matter in the suit. However, on the face of it, it may suffer from some defects of the nature indicated in clauses (a) to (d) of Rule 11 of Order 7 because of which the plaint must be rejected. It is no doubt true that the suits which touch the business of the cooperative society must be filed in the cooperative Court and therefore a suit : 8 : of this nature which is filed in the civil Court cannot be entertained. The plaint will therefore have to be returned. The submission of the learned Counsel for the appellant that by returning the plaint, the defect with regard to section 164 of the MCS Act cannot be cured and, therefore, the plaint ought to have been rejected. In my opinion, this option was not available to the trial Court in this case as evidence was led on both issues and it is based on the evidence that the trial Court as held that it had no jurisdiction to decide the dispute. If the Court inherently lacked the jurisdiction then in my opinion it cannot decide whether the plaint should be rejected. It is only a competent court which can decide whether the plaint can be rejected. 16. In these circumstances, I see no reason to differ from the view taken by the trial Court and thus, the Appeal from Order is dismissed. In any event, it appears that the proceedings are now pending before the cooperative Court. 17. On the application made by Mr.Kanetkar, the stay granted during the pendency of this Appeal from Order is extended for a period of eight weeks from today..