[1] The petitioner herein is the original plaintiff which preferred Summary Suit No.25 of 2006 before the Civil Court, Surat wherein vide order below Ex.16, the Court returned the plaint of the petitioner vide its order dated 23.04.2012. This order invoking Order 7, Rule 11 of the Civil Procedure Code is challenged in this petition preferred by the petitioner under Article 226 and 227 of the Constitution of India.
[2] Heard Mr.H. A. Dave, learned advocate for the petitioner [3] Mr.H.
A. Dave, learned advocate for the petitioner has vehemently submitted that except the reference of Ahmedabad in agreement suggesting the agreement to have been executed at Ahmedabad, no transfer has taken place at Ahmedabad. He submits that curiously Ahmedabad is mentioned in the agreement, however, on instruction he can submit that this document has been executed at Surat. He shows inability to produce last page of the agreement entered into by the petitioner. He fairly submits that there is no dispute of legal preposition, however, from the facts in this case, it would not be proper to pass order under Article 227 of the Constitution of India.
[4] Having considered the submissions and having examined the order impugned earlier, it appears that the Court has not committed any illegality nor is there any perversity resulted into situation, where this Court needs to interfere. Order 7, Rule 11 of the Civil Procedure Code envisages rejection of the plaint under such circumstances mentioned thereunder. Such application in this case is preferred under Order 7, Rule 11 of the Civil Procedure Code by the defendant on the ground that the Courts at Ahmedabad only have jurisdiction in respect of subject matter of the agreement.
[5] It is the case of the respondent, original defendant that Clause 17 of the Marketing Associate Agreement executed on 28/08/2004 between the defendant and M/s.Megabytes Computers contemplates that the Court, Surat has no jurisdiction to entertain the suit and therefore, the suit of the plaintiff is without any basis and not just and proper. The Court after hearing both the sides instead of rejecting the plaint has chosen to return the plaint under Order 7, Rule 10 of the Civil Procedure Code. Order 7, Rule 11 of the Civil Procedure Code reads as under:
"11.
Rejection of plaint. - The plaint shall be rejected in the following cases :-
(a) here it does not disclose a cause of action;
(b) here the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) here the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) here the suit appears from the statement in the plaint to be barred by any law;
(e) here it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9];
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]"
Order 7, Rule 10 of the Civil Procedure Code quantifies that after the defendant has appeared, the Court if is of opinion that the plaint shall be returned, to be presented to the appropriate forum, on intimating decision to the plaintiff, the plaint can be returned. It shall, as mentioned, before doing so, intimate its decision to the plaintiff. As can be seen from the application preferred by the defendant pressing its averments on the clause of Marketing Associate Agreement, Courts at Ahmedabad shall have exclusive jurisdiction to try subject matter of the agreement. It was deemed necessary by the Court to return plaint for presenting the same to the Court having jurisdiction at Ahmedabad.
[6] At this stage, it will be appropriate to refer to the decisions of the Supreme Court rendered in the case of ABC Laminart Private Limited Vs. A. P. Agencies, reported in (1989) 2 SCC 163, where the Court held that when in a contract between the parties, there is an ouster clause which is clear and unambiguous, the other Court should avoid exercising jurisdiction. And in the event of any dispute arising out of such contract, the same would be subject to the jurisdiction of the Court in whose jurisdiction, the parties have themselves submitted.
This decision being in consonance with the ratio laid down, no interference is needed.
[7] It should be mentioned that agreement submitted to this Court as also mentioned by the trial Court does not contain the last clause particularly clause 20. However, no challenge is made to the truthfulness of the content of the application of the respondents, so far as clause 20 is concerned.
[8] In the result, the present petition stands dismissed.
[ MS. SONIA GOKANI, J. ] vijay Top