Narender Singh & Ors v. Indian Institute of Architects

order passed by the High Court warranting interference."

It would thus be apparent that there is no universal or invariable rule mandating that once a plaint is returned under Order VII Rule 10 CPC, the proceedings before the competent court have to continue de novo.

¶22The other question requiring an examination is of the effect of the order of the learned Single Judge calling for the records and posting the matter for final arguments. Although several cases have permitted a transfer under Section 24, these cases have involved instances where the plaint was presented before the competent court, but due to an amendment to the pecuniary jurisdiction of the courts, the matter was to be transferred to the High Court; as opposed to the filing of a suit before a court which was – at the time of such filing – not competent. Indeed, this distinction is supported by the judgment in Harshad Chiman Lal Modi v. DLF Universal Ltd and Another, AIR 2006 SC 646, especially paragraph 11.

¶23These cases apart, in Pushpa Kapal v. Shiv Kumar, 35 (1998) DLT 187, the plaint was returned by the Trial court for re-presentation to the District Judge. Before re-presenting the suit to the District Judge, however, an application under Section 24 read with Section 151, CPC was made to the High Court for transfer of the plaint to prevent unnecessary hardship inherent in the rehearing of the entire matter de novo; in Rail Chand v. Atal Chand and Others, 13 (1977) DLT 153, the suit was not tried afresh, but that was because instead of Page 11

returning the plaint, the High Court ordered the transfer of the matter to the Commercial Sub-Judge.

¶24The question also arose before the Court in Vogel (supra), where it was held that the suit must be tried afresh, but the Court noted that cases where the "10................order of transferring the suit from the Trial Court to the District Court came to be passed not by the Civil Court for the District Court but by the High Court...." were justified, as the High Court operates "by virtue of its inherent power as well as the express powers as contained in Section 24" (paragraph 10). Indeed, in Vogel, on which the Appellants rely heavily, it was held that the suit be tried afresh because the order of transfer came from the District Judge, and not the High Court; the powers of the former in this matter being limited. Equally, the Court noted that in that case "no transfer of the suit was envisaged by the order dated

30.4.2004" (paragraph 11). The relevant question then becomes whether the Learned Single Judge in this case intended to transfer the suit under Section 24, in the absence of an application made by the Plaintiff herein under that Section. Indeed, in Vogel (supra), the Court noted that "this Court might call for the record of the said suit for its perusal in connection with the suit which might be instituted on the representation of the plaint", but that "is a different matter".

¶25In this case, the Learned Single Judge in the present case did not invoke the provisions of Section 24. In fact, the I.A. 5779 of 2010 is an "application for re-filing the plaint", and it notes that "the plaintiff is re-filing the original plaint before this Hon'ble Court". It is, therefore, questionable as to what the precise basis for assuming Page 12

jurisdiction is in this case, and whether the order of the Learned Single Judge can be taken to be an exercise of inherent powers under Section 151, despite the presence of a specific provision under Section 24, for transferring the matter up to the High Court.

¶26In a similar case, Hawkins Cookers Ltd. v. Citizen Metal Industries (India), 133 (2006) DLT 281, the District Judge "sent" the file to the High Court upon a finding that the case fell within the pecuniary jurisdiction of the High Court; just as the Plaintiff in this case requested the court to call up the file from the Learned District Judge. Although the Court recognized that: "2.(iv)...............the return of the plaint for want of jurisdiction whether pecuniary or territorial cannot be equated to the transfer of the suit or proceeding either by virtue of Section 24 of the CPC........... …"

The court then concluded as follows: "6...................In several cases where suits have been transferred from the High Court to the District Court the plaintiffs have, after succeeding in an upward revision of the valuation of the suit, approached the Court under Section 24 of the CPC. This section contemplates the filing of an application by the parties desirous of a transfer, or of its own motion................................ … It is, therefore, for the High Court to decide what action has to be adopted. To set all controversies at rest, I assume jurisdiction under Section 24 and hold and direct that the suit stands transferred to this Court by Order of this Court itself." (paragraph 6).

¶27This precise reasoning may be applied to this case to hold that the proceedings must not begin de novo. The apparent difficulty is that the orders of the learned Single Judge, of May, 2010 do not Page 13

allude to Section 24. Further, as noted in Ramesh Chand Bharadwaja v. Ram Prakash Sharma, 44 (1991) DLT 528, once the plaint is returned, there is no suit pending before the subordinate Court for Section 24 to become operative. In Hawkins Cookers (supra), there was a plaint existing before the lower court, as was also the case in Aviat Chemicals Pvt. Ltd. and Anr. v. Magna Laboratories (Gujarat) Pvt. Ltd. and Anr., 127 (2006) DLT 300, where the Court noted that Section 24 could not be used when "the proceedings in the suit have fully and finally terminated and the Court below has become functus officio" (paragraph 10). Nevertheless, the Court noted that in cases such as the present one, where the provisions of Section 24 do not seem to apply, the inherent power of the Court under Section 151 are apposite as "[i]t will be a travesty of justice if the proceedings have to commence de novo" (paragraph 16-7). It was also earlier held that: "15...........................It may be noticed that some of the suits are stated to be fixed for hearing while in others evidence has been recorded, still some other suits are pending at initial stages. Now this Court alone would have the pecuniary jurisdiction to entertain and decide the suits because of the orders passed by the trial Court. In the event the plaints are taken back by the plaintiffs and are represented in the registry of this Court for de novo trial it would but naturally result in further delay and prejudice to parties. There would be expeditious disposal of the suits, if suits are permitted to be transferred, in the sense that all the proceedings so far lawfully taken by the court of competent jurisdiction would be protected and not treated as having invalidated in law. It is difficult to accept the reasoning that loss of pecuniary jurisdiction before a Court whether by virtue of operation of law or by act of the parties covered by an Page 14

order of the Court should be permitted to vest parties with different consequences in law, particularly when one of such consequences could be adverse to the very system of expeditious disposal of suits.

¶16The argument raised on behalf of the respondents that loss of jurisdiction as a result of amendment would necessarily have to be construed as no suits or proceedings are pending before the trial Court, is without any merit. I have already noticed that the provisions of Section 24 and Order 7 cover a different domain and there is no conflict between these provisions. The provisions of Section 151 would come to the aid of the Court, as no Code can possibly make provisions so as to meet every situation which may arise during the pendency of the suit. It is a situation where inherent jurisdiction of this Court would come to the aid and supply the vacuum. The inherent jurisdiction of the Court would normally be exercised in the interest of justice and for attainment of object of expeditious disposal of suits. May be it is the creation of the applicants themselves that the Court has lost pecuniary jurisdiction and the applications under Order 7 Rule 10 and 10(A) are pending or that the order has been passed for return of plaint but the plaint as a matter of fact has not been returned to the plaintiffs as of today. Thereafter interim orders in the present petitions were passed in favor of the petitioners. In these circumstances, it is difficult for this Court to hold that there is no suit or proceedings in the suit, pending before the trial Court. The Legislature in its wisdon has worded the language of Section 24 in wide terms by empowering the High Court to transfer any suit or appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it. In other words, the meaning of the word "such or other proceedings pending in any court" cannot be restricted or construed so as to exclude the proceedings as contemplated under Order 7 Rule 10, 10(A) of the Act. Page 15

¶17The present are the cases which have been filed by the plaintiffs in the Court of Competent jurisdiction. However, earlier they were transferred to the District Courts in view of the notification and now the district courts have lost pecuniary jurisdiction as a result of the order of the Court at the behest of the parties. The interim orders, undertakings have continued for years together. In some cases evidence has been recorded. It will be travesty of justice if the proceedings have to commence de novo right from the stage of filing a written statement as the plaintiff would be returned only plaint, to be presented before the court of competent jurisdiction there is nothing in the provisions of Order 7 Rule 10 which on its plain reading or by necessary implication be construed as a bar to maintainability of a petition under Section 24 of the Code.............."

¶28It is held, on the basis of the above reasoning, and the line of decisions following Joginder Tuli (supra) and Aviat Chemicals (supra), the proceedings in the present case do not have to commence de novo, but from the stage they were in the court of the Additional District Judge.

¶29The next question, i.e. valuation of the suit, need not detain the Court. The plaintiff had valued the suit originally at over ` 5 lakh and filed it in this court. The valuation for pecuniary jurisdiction purposes through a general notification led to the matter being sent to the District Court. When, during the trial an admission was made about the value of the suit property being ` 1 crore, the Trial court returned the plaint for filing before this court. Though the plaintiff's evidence does suggest that in reply to a query, its witness stated that the property was worth ` 15 crores, the court has to read that admission in Page 16

the context of the overall circumstances. Having conceded that the valuation was over ` 1 crore, which was the reason for the suit being returned, the plaintiff cannot be now asked to value it upwards merely because of the further admission. There is no finding that the fresh exercise of valuation is improper. The appellant has repeatedly impugned the valuation; however, there is no material in support of the allegations. In these circumstances, it is held that the plaint before this court cannot be said to be undervalued.

¶30For the above reasons, the court finds no reason to interfere with the impugned order of the learned Single Judge. The appeal is, therefore, dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) NOVEMBER 28, 2013

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.07.2013 Pronounced on: 28.11.2013 + FAO(OS) 64/2013, C.M. APPL. 1784/2013 (for stay) NARENDAR SINGH AND ORS. ..... Appellants Through: Mr. Viraj. R. Datar with Mr. Chetan Lokur and Mr. Vikram Pradeep, Advocates. versus THE INDIAN INSTITUTE OF ARCHITECTS ..... Respondent Through: Mr. K.R. Chawla, Advocate. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT % 1. The appellant claims to be aggrieved by an order rejecting his application for rejection of the Plaintiff's plaint. The appellant shall be hereafter referred to as such or the defendant; the Plaintiff shall be referred to as the plaintiff. 2. In 1999, the plaintiff filed a suit against the present Appellant seeking, inter alia, recovery of the plot bearing No. 4, Institutional Area, Lodhi Road, New Delhi before the Delhi High Court, as CS (OS) No. 1918/1999 ("the suit property"). The Plaintiff had valued the suit property at ` 10 lakhs. On 17.06.2003, the pecuniary jurisdiction of the Delhi District Courts was increased and the suit was transferred to the Learned Additional District Judge, Tis Hazari Courts, where the Page 2 proceedings continued from the stage at which they were transferred. By then, issues too had been framed. 3. On the basis of the admission of PW-1, during cross- examination that the suit property was valued at ` 1 crore when the suit had been filed, and ` 15 crore on the date of cross-examination, i.e. 27.07.2009, the Learned District Judge, by order dated 22.09.2009 returned the plaint under Order VII, Rule 10 of the CPC. 4. The Plaintiff filed I.A. No. 5779/2010 before this Court requesting that the original plaint be taken on record, and that the matter be proceeded with from the stage at which the Learned District Judge had heard it. A learned Single Judge granted the relief, and in an ex parte order dated 03.05.2010, took the original plaint on record as requested by the plaintiff. Subsequently, the Learned Single Judge by an order dated 20.5.2010 held that since the plaint was returned by the Additional District Judge at the time of final arguments, the suit would be heard by this Court from that stage, and not de novo. 5. The Appellant/ defendant then filed an application, IA No. 8469/2010 under Order VII Rule 11(c) CPC, seeking rejection of the plaint stating that the Plaintiff had valued the suit property at the original amount, despite an admission during cross-examination and the order of the Learned District Judge, and thus, paid insufficient Court Fees. The appellant subsequently also urged that the suit must be proceeded with de novo and not from the stage of final arguments – this argument being raised in the rejoinder and in oral submissions before the learned Single Judge, but not in the original application under Order VII CPC. Page 3 6. The learned Single Judge in an order dated 20.09.2011 disposed off the application noting that the Plaintiff had, subject to confirmation by the Registry, paid the additional Court Fees based on a valuation of the suit property at ` 1 crore, and thus, the application was devoid of any merit. However, the learned Single Judge specifically excluded two questions from consideration: first, whether the suit property was correctly valued at ` 1 crore, or as the Appellants claimed, ` 15 crore; and secondly, whether the suit was to be tried de novo. The Single Judge did not rule on either as they were not raised directly in the application itself, but subsequently, and thus, liberty to raise these contentions by way of separate applications was granted to the Appellant. 7. In these circumstances, the Appellant filed yet another application, I.A. No. 15914/ 2011, seeking recall of the order dated 20.05.2010, arguing essentially that the matter must be treated as de novo and that the Court must not take the matter up from where the learned District Judge had returned the plaint. In the alt