Case: Amar Chand Inani Vs. Union Of India

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 Karnal Court (see the decisions in Hirachand Succaram Gandhy v. G. I. P. Rly. Co., AIR 1928 Bom 421 , Bimla Prasad Mukerji v. Lal Moni Devi, AIR 1926 Cal 355, and Ram Kishun v. Ashirbad, ILR 29 Pat 699 = (AIR 1950 Pat 478 ). 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. 9. Counsel for the appellant contended that the Karnal Court had jurisdiction to entertain the plaint presented to it on March 2, 1959, and, therefore, that was the proper Court for the purpose of Section 4 of the Act and that the suit was filed within time. He said that although the order passed by the Panipat Court on October 28, 1959, holding that it had no jurisdiction to entertain the plaint and returning it for presentation to the proper Court, was not appealed from, the appellant is not precluded from challenging the finding in the order that Mohri Railway Station is not within the jurisdiction of the Karnal Court. On the other hand, counsel for the respondent contended that since an order passed under Order 7, Rule 10 of the Civil Procedure Code, returning a plaint for presentation in the proper Court, was appealable under Order 43 Rule 1 (a) the appellant is precluded from challenging the correctness of the finding of the Court that Mohri Railway Station was not within its jurisdiction as no appeal was preferred from that Order by the appellant. Counsel said that as that order has become final, it would constitute res judicata and the appellant cannot challenge its correctness in an appeal from the decree. Counsel further said that Section 105 of the Civil Procedure Code which enables a party to challenge the correctness of an interlocutory order whether appealable or non-appelable when an appeal is preferred from the decree in the case has no application for the reason that the order passed by the Panipat Court cannot be deemed to be an order passed in the suit in which the decree was passed by the trial Court, but a final order which terminated the proceedings in the Panipat Court. To put it in other words, the argument was that since the suit in the trial Court was not a continuation of the suit which was filed in the Karnal Court, the order returning the plaint cannot be deemed to be an order passed in the suit as instituted in the trial Court and, therefore, there is no question of challenging that order under Section 105 of the Civil Procedure Code in an appeal against the decree passed by the trial Court. In support of the contention, counsel referred to the rulings which have already been referred to in this judgment holding that a suit instituted by the presentation of a plaint in pursuance to an order passed under Order 7, Rule 10 of the Civil Procedure Code is not a continuation of the suit as instituted in the Court which had no jurisdiction to entertain it. The rulings of this Court in Satyadhan Ghosal v. Smt. Deorajin Debi, (1960) 3 SCR 590 = (AIR 1960 SC 941 ) and Arjun Singh v. Mohindra Kumar, (1964) 5 SCR 946 = (AIR 1964 SC 993 ) were also referred to by Counsel to show that the order passed by the Panipat Court returning the plaint for presentation to the proper Court was a final order and operated as res judicata precluding the appellant from challenging its correctness in this appeal. We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act. 10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not think it necessary to decide the question whether the order passed by the Panipat Court returning the plaint for presentation in the proper Court would operate as res judicata and preclude the appellant from contending in this appeal that the Karnal Court had jurisdiction to entertain the suit, for the reason that the appellant never raised contention before the trial Court that Karnal Court was the proper Court for instituting the suit on the ground that Mohri Railway Station was within its jurisdiction. On the other hand, by invoking Section 14 of the Act, he impliedly asserted that the Karnal Court had no jurisdiction to entertain the plaint because that section proceeds on the basis that the Court in which the proceeding was pending was unable to entertain the proceeding from defect of jurisdiction or cause of a like nature. To put it differently, the appellant had no case either in the trial Court, or in the High Court in the appeal from the decree, that Karnal Court was the proper Court for filing the suit. No doubt, he invoked the provision of Section 4 of the Act and sought to bring the case within its purview both in the trial Court and in the High Court, but that was on the basis that even if the Karnal Court had no jurisdiction to entertain the plaint, he was entitled to the benefit of Section 4. In these circumstances, we do not think that the appellant should be permitted to urge before this Court that the Karnal Court had jurisdiction to entertain the suit for the reason the Mohri Railway Station was within its jurisdiction and show that the suit as filed on March 2, 1959, was filed in the proper Court for the purpose of the Section 4 of the Act10. As the suit was barred by limitation, we do not think it necessary to consider the question whether the appellant is entitled to get any further amount by way of damages.