Case: Ongc Ltd Vs. M/S. Modern Construction And Co

where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction. 13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same. 14. There can also be no quarrel with the settled legal proposition that the Executing Court cannot go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide: Bhawarlal Bhandari v. Universal Heavy Mechanical Lifting Enterprises AIR 1999 SC 246 ; Dhurandhar Prasad Singh v. Jai Prakash University & Ors., AIR 2001 SC 2552 ; Rajasthan Financial Corpn. v. Man Industrial Corpn. Ltd., AIR 2003 SC 4273 ; Balvant N. Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR 2004 SC 4377 ; and Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 ). 15. In the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into play. (See: Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084 ; and Bhagwati Developers Private Ltd. v. Peerless General Finance Investment Company Ltd. & Ors., AIR 2013 SC 1690 ). 16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v. Yogeshbhai Ambalal Patel & Anr., AIR 2012 SC 3285 , while dealing with the issue held: 21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong…. This concept is also explained by the legal maxims Commodum ex injuria sua non habere debet; and nullus commodum capere potest de injuria sua propria. 17. Thus, the respondent cannot take the benefit of its own mistake. Respondent instituted the suit in Civil Court at Mehsana which admittedly had no jurisdiction to entertain the suit. In spite of the fact that the civil suit stood decreed, the High Court directed the court at Mehsana to return the plaint in view of the provisions of Order VII Rule 10 CPC. Thus, the respondent presented the plaint before the Civil Court at Surat on 3.2.1999. 18. The judgment and decree dated 21.9.2006 clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the respondent observing that the respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the wrong doer cannot get benefit of its own wrong i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the respondent observing that a public undertaking cannot be penalised for the mistake committed by the plaintiff by choosing a wrong forum. Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the respondent cannot be allowed to take advantage of the words from the date of the suit, and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the plaintiff/respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking advantage of its own wrong and for that purpose, the plaintiff/respondent is trying to misconstrue the words mentioned by the learned trial court in the operative portion of the judgment dated 21.9.2006, viz., from the date of filing of the suit. However, while passing the impugned order, the High Court has used the language that the case stood transferred from the Mehsana court to the court at Surat and, therefore, interest has to be paid from the date of initiation of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the claim. 19. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law. 20.

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

Explanation:
1[ds]Section 14 of the Limitation Act provides protection against the bar of limitation to a person bonafidely presenting his case on merit but fails as the court lacks inherent jurisdiction to try the suit. The protection also applies where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the sameIn the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into playWe are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law