This revision has been filed against the judgement and order dated 4.4. 2014 passed by the Additional District Judge/Special Judge ( SC/ST Act), Court no. 2, Gautam Buddha Nagar whereby the application ( Paper No. 269 Ga ) filed by the defendant revisionists under section 151 C.P.C. in original Suit No. 254 of 2008 for returning the plaint to the competent court has been rejected.
The brief facts of the case giving rise to this revision are as follows:
A suit, being Suit No. 254 of 2008, was instituted by the plaintiff respondent on 27.3.2008 in the court of Civil Judge ( Sr. Div.), Gautam Buddha Nagar, interalia, for a declaration and permanent injunction. The defendant revisionists filed an application on 26.8.2009 under Order 7 Rule 11 C.P.C. stating therein that the Civil Judge (Sr. Div.) has no jurisdiction to try the suit filed under Trade Marks Act 1999 (in short "Act"). During the pendency of the aforesaid application under order 7 Rule 11 C.P.C., the plaintiff respondent moved a transfer application ( N0. 64/2010) under section 24(5) C.P.C. before the District Judge, Gautam Buddha Nagar seeking transfer of the suit from the court of Civil Judge ( Sr. Div.) to the competent court having jurisdiction. The District Judge, after considering the matter allowed the said transfer application filed under section 25(4) C.P.C. on 7.9. 2010 and withdrew the suit from the court of Civil Judge (Senior Division) to his own court and thereafter entrusted the matter to the Addl. District Judge, Gautam Budh Nagar for trial of the suit . After the transfer of the aforesaid suit to the Court of the District Judge, the defendant revisionists appeared before the trial court i.e. Addl. District Judge, Gautam Buddha Nagar and filed its written statement as well as reply to the interim injunction application on 28.1.2011. The defendant revisionist neither objected to the transfer of the suit under Section 24 (5) CPC nor challenged the order dated 7.9.2010 whereby the suit was transferred by the District Judge. After exchange of pleadings between the parties, the trial court framed issues vide orders dated 24.4.13 and 1.10.13. The defendant revisionist did not press for the framing of issue in regard to the jurisdiction or maintainability of suit before the trial court. After framing of the issues, the parties led their respective evidences in the matter, and witnesses were examined and cross-examined and arguments thereafter were heard by the court below, and the suit reached the final stage for final disposal. It is also noteworthy that the application for interim injunction filed earlier by the plaintiff respondents in the above suit was dismissed by the trial court on 15.2.2013 and interim interim injunction was vacated.
The plaintiff respondent challenged the above order dated 15.2.2013 before this court by filing First Appeal From Order No. 633 of 2013 which was disposed of by this court on 7.3.2013 with the direction to the trial court i.e. the Addl. District Judge to dispose of the above suit in accordance with law within six months from the date of receipt of the said order and till the disposal of suit injunction was granted against the defendant revisionist. The perusal of the record shows that the above order dated 7.3.2013 was passed with the consent of the leaned counsel for the revisionists. A review application was filed by the revisionists seeking review of the said order dated 7.3.13. The said review application was dismissed by this court on 17.4.2013 . After dismissal of the review application, the revisionists continued to participate in the suit proceedings before the trial court and led evidence and cross examined the witnesses. However, after the arguments of the parties were concluded, an application under section 151 C.P.C. was moved by the revisionists before the trial court on 27.3.2014 for return of the plaint for its proper presentation to a competent court having its jurisdiction. The said application was dismissed by the trial court by order dated 4.4.2014 . Hence, the present revision.
Learned counsel for the defendant revisionists submits that the trial court has acted illegally with material irregularity in exercise of its jurisdiction while passing the impugned order dated 4.4.2014 rejecting the application filed by the revisionist solely on the ground that it had no jurisdiction to test the merits of the order dated 7.9.2010 passed by the District Judge. It was further submitted that the proceedings before the Addl. District Judge , after the transfer of the suit from the court of the Civil Judge ( Sr. Div.) , was a nullity inasmuch as the suit was never instituted in a court of competent court. He further submits that the scope of the proceedings under section 24(5) C.P.C. are only for the purpose of transfer of suit or proceedings and such transfer does not clothe the very institution of the suit as within the four corners of law and the proceedings will remain a nullity even after transfer, such transfers are permissible only in the cases where suites are instituted validly . He further submits that the power under Order 7 Rule 10 is available at any stage of the suit, hence the finding of the court below to the effect that the stage of filing application by the revisionist under section 151 C.P.C. for return of the plaint was highly belated, is untenable and cannot be accepted. It was further submitted that there is a difference between the language used under Order 7 Rule 10 C.P.C. and under section 24(5) C.P.C. Order 7 Rule 10 C.P.C. deals with the presentation of the suit and place of institution of the suit, whereas Section 24 (5) C.P.C. has no concerned with the mode of presentation of suit. It was further submitted that as per Section 134(1) of the Trade Marks Act, 1999, the suit can be instituted only before the District Judge and therefore the institution of a suit in an incompetent court will be treated as a nullity even after its transfer to the competent court having jurisdiction. It was further submitted that the provisions under Order 7 Rule 10 C.P.C. and 24(5) C.P.C. are to be considered harmoniously just to avoid any kind of conflict between these two statutes so that one provision may not become redundant. He further submitted that the court below while passing the impugned order completely failed to consider the provision of section 134 of the Trade Marks Act, 1999.
Per contra, learned counsel for the plaintiff respondent while supporting the impugned order submitted that the trial court has not committed any illegality or irregularity in passing the impugned order and the said order is just and proper. It was further submitted that before filing of the application under section 151 C.P.C., the revisionists never raised any objection with regard to the validity of the order dated 7.9.2010 whereby the suit was transferred under section 24(5) C.P.C. from the court of Civil Judge (Jr. Div) to the court of District Judge nor it was ever challenged before any court of law, as such the same had attained the finality. It was further submitted that it is not the case of the revisionists that the court where the suit is being tried presently is not the competent court or having no jurisdiction to try the suit, therefore, no prejudice has been caused to the revisionists by the trial of the suit. He further submits that the application filed by the defendant-revisionist under section 151 C.P.C. was nothing but an abuse of the process of law and was an attempt to overreach the direction of this Court for disposal of the suit within a stipulated period.
He further submitted that despite the specific order of this court dated 7.3.2014 whereby this court had directed the trial court to decide the suit within a period of six months, the defendant revisionists indulged in adopting delaying tactics to delay the disposal of the suit and in furtherance of his intention, an application under section 151 C.P.C. was moved by the revisionists before the trial court at a very belated stage i.e. on 27.3.2014 for return of the plaint when the parties had already led their respective evidences and advanced arguments. He further submits that there is nothing on record to establish that if the impugned order if allowed to stand , it would occasion a failure of justice or cause irreparable injury to the defendants.
Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Prateek Kumar, lerned counsel for the opposite party , Sri Manish Goyal and Ms. Ankita Jain, learned counsel for the revisionist and perused the record.
A preliminary objection has been raised by the learned counsel for the plaintiff respondent regarding maintainability of the present revision before this court contending that the court of Addl. District Judge can not test/judge the merits and sit over the order of the District Judge dated 7.9.10 passed under section 24(5) C.P.C. by means of which the suit filed in the court of Civil Judge ( Sr. Div.) was directed to be transferred to the court of the District Judge .
From the perusal of record and affidavit exchanged between the parties, it transpires that by order dated 7.9.2010 the suit which was instituted before the Civil Judge( Sr. Div.) was withdrawn by the District Judge under Section 24 (5) CPC for trial and said order was not challenged by the revisionists before any court of law, therefore the said order dated 17.9.2010 has attained the finality and, now, the revisionists, after lapse of nearly three and half years by an application under section 151 C.P.C. cannot be permitted to reopen the issue. Admittedly, the suit in question is pending before the competent court i.e. the court of Addl. District Judge , Gautam Buddha Nagar. The trial court (presided over by Addl. District Judge) can not test/judge the merit and sit over the order of the District Judge. Trial Court has no jurisdiction to recall the order dated 7.9.2010 passed by the District Judge. Besides this, the leaned counsel for the revisionists has not been able to satisfy this court as to how the impugned order dated 7.9. 10 had occasioned failure of justice or has caused irreparable injury to the revisionists. Admittedly, the suit is presently pending before the competent court and it would be ridiculous if the plaint is returned for filing it again before the same court where the suit is already pending. Therefore, it can not be said that the court below while passing the impugned order failed to exercise the jurisdiction vested in it or if the same is allowed to stand , it would occasion a failure of justice or cause irreparable injury to the defendants. The case laws cited by the learned counsel for the revisionists are of no help to the revisionists as law laid down in those cases are not applicable to the facts and circumstances of the present case. Besides this, when there is a specific provision for return of plaint for presentation before competent court under Order 7 Rule 10 C.P.C., then how the inherent powers under Section 151 C.P.C. of the Court can be invoked for the same relief. Therefore, I have no hesitation in holding that the present revision is not maintainable against the impugned order.
The above discussion is sufficient for the dismissal of the revision as not maintainable. In the interest of completeness, however, I would consider the matter on merits also:
From perusal of the record, it transpires that the suit in question was initially instituted by the plaintiff respondent on 27.3.2008 in the court of Civil Judge (Sr. Div.), Gautam Buddha Nagar, interalia, seeking a declaration and permanent injunction. The defendant revisionists filed an application on 26.8.2009 under Order 7 Rule 11 C.P.C. raising an objection that the Civil Judge ( Sr. Div.) has no jurisdiction to try the said suit . During the pendency of the aforesaid application under order 7 Rule 11 C.P.C., the plaintiff respondent moved a transfer application ( NO. 64.2010) under section 24(5) C.P.C. before the District Judge, Gautam Buddha Nagar seeking transfer of the suit from the court of Civil Judge (Sr. Div.) to the court of District Judge, which was allowed on merits by the District Judge on 7.9.2010, after considering the provisions of sections 24(5) C.P.C. For ready reference the provisions of sub clause 5 of Section 24 C.P.C. run as follows;
"24 . General Power of Transfer and Withdrawal:-
** ** (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
By the order dated 7.9. 2010, the suit was withdrawn by the District Judge from the court of Civil Judge for its trial before the court of District Judge. After transfer of the aforesaid suit to the Court of the District Judge, the defendant revisionists appeared before the trial court i.e. Addl. District Judge and filed its written statement. It is noteworthy that the defendant revisionist never objected to the transfer of the suit nor challenged the order dated 7.9.2010 passed by the District Judge before any legal forum. After exchange of pleadings, the trial court framed issues vide orders dated 24.4.13 and 1.10. 13. From the perusal of the aforesaid orders, it transpires that no objection with regard to jurisdiction was raised and no issue with regard to jurisdiction was framed by the trial court. After framing of the issues, the parties led their respective evidences on the issues and witnesses were examined and cross-examined and the arguments were advanced by the parties. The matter is ripe for final disposal.
The application for interim injunction filed earlier by the plaintiff respondents in the above suit was dismissed by the trial court on 15.2.2013. The plaintiff respondent had challenged the said order dated 15.2.2013 before this court by filing First Appeal From Order No. 633 of 2013 which was disposed of by this court on 7.3.2013 with a direction to continue the interim order with a further direction to the concerned trial court i.e. the Addl. District Judge to dispose of the above suit in accordance with law within six months from the date of receipt of the said order . Despite the fact that the above order dated 7.3.2013 was passed with the consent of the leaned counsel for the revisionists, a review application was filed by the revisionists seeking review of the said order dated 7.3.13. The said review application was dismissed by this court on 17.4.2013. After dismissal of the review application, the revisionists continued to participate in the suit proceedings before the trial court and led evidence and cross examined the witnesses and also advanced final arguments before the trial court. Thereafter, it appears that the revisionists indulged in adopting delaying tactics to delay the disposal of the suit and in furtherance of his intention, after lapse of nearly three and half years when the matter was ripe for final disposal, an application under section 151 C.P.C. was moved by the revisionists before the trial court on 27.3.2014 for return of the plaint for its proper presentation to a competent court having its jurisdiction. The said application was nothing but a device to delay the disposal of the suit .
The principal submission which has been made by the learned counsel for the revisionists is whether that the suit which was instituted in a wrong court and the defect so occurring could be cured by the subsequent order of transfer made by the District Judge under section 24(5) C.P.C. to the competent Court having its jurisdiction. In support of his contention, he relied upon the law laid down in the case of Pachaoni Awasthi Vs. Ilahi Baksh: 1882 (4) ILR All 476. The submission so made by the learned counsel for the revisionists has no substance in view of the law laid down by this court in the case of Rajesh Kumar Vs. M/S Mohan Cut Piece Stores , Lucknow and another: ARC 1987(1) 320 wherein similar controversy was involved and this Court in para 3 of the Judgement dated 11.9.1986 held as under:
" In exercise of powers under Section 24 sub-clause [5) of the Code, the suit pending in a Court having no jurisdiction to try it can be transferred by the District Judge. It is a different matter that the Court of Civil Judge, Malthabad, could also pass order regarding return of the plaint to the plaintiff for presentation before the competent court in exercise of powers under Order VII, Rule 10A of the Code, but that will not make the impugned order passed by the District Judge, Lucknow, Invalid. The power to transfer case from the Court having no Jurisdiction to try it could be legally exercised by the District Judge under Section 24 sub-clause (5) of the Code and I do not find any infirmity in the impugned order so as to call for interference by this Court in exercise of the revlslonal powers under Section 115 of the Code. The Impugned order, in my opinion, does not suffer from any error of law or jurisdiction."
A bare perusal of the aforesaid decision, makes it clear that the court of Civil Judge although can also pass order regarding return of the plaint to the plaintiff for presentation before the competent court in exercise of powers under Order VII, Rule 10-A C.P.C. but that will not make the order passed by the District Judge under section 24 (5) C.P.C. invalid.
The law laid down in the case of Rajesh kumar ( supra) was also followed in the case of Amar Nath Swarmi Vs. Ramdeo : 2000(2) AWC 1110 wherein in paras 11 and 12 the court has held as follows:
"11. But at the same time, it is an admitted position that defendant was aware of the amendment and had been contending that the learned Civil Judge has no Jurisdiction, therefore, about the lack of Jurisdiction the applicant had notice and that according to him the plaint ought to have been returned, therefore, the applicant was fully aware of the case that the plaint has to be presented before the appropriate court. The Intention of Section 24 is to keep the other side apprised of the situation that on being transferred he might not suffer. The applicant could not have any objection If the plaint is returned. He had objection about the trial of the suit by the learned Civil Judge, therefore, he would not suffer any prejudice if the suit is not tried by learned Civil Judge. Thus, he was aware that the suit is to be tried by a Court of competent Jurisdiction. It may be either by way of return of plaint or by way of transfer. Therefore, even if he has not been given any notice, when he was aware of the situation that the suit Is to be tried by a Court of competent jurisdiction, he is not going to suffer except on the question of technicality of returning the plaint. He cannot have any right with regard to the procedural matter. When one procedure is adopted out of two or more procedures prescribed, he cannot be said to have any right to oppose It since It will not cause any prejudice with regard to the merit of the case. It was only on the question of procedural technicalities, the applicant is seeking to be heard. Since both the Order VII, Rule 10 or 10A and Section 24 can be resorted to, therefore, resorting to one would not make an difference if he is given notice of the date fixed for appearance before the transferee court. Therefore, I am unable to accept the contention of Mr. Pandey having regard to facts and circumstances of the case to the extent that absence of notice or hearing would be fatal to this, question.
12. The next limb of the argument of Mr. Pandey that Section 24 can be exercised only in respect of proceeding which has been presented before the appropriate court. If it Is presented before the wrong Court, in that event, such jurisdiction cannot be exercised. This proposition is confined to the question where the power of transfer has been exercised by the Court before which the matter was presented wrongly. It does not apply to the learned District Judge while exercising the power under Section 24"
It is thus the settled and firm proposition of law that when one procedure is adopted out of two or more procedures prescribed, he cannot be said to have any right to oppose it, since it will not cause any prejudice with regard to the merits of the case. It was only on the procedural technicalities , the revisionist is seeking to be heard . Since the order passed under section 24(5) C.P.C can be resorted to, therefore, resorting to one would not make any difference if he is given notice of the date fixed for appearance before the transferee court.
At this stage, it would also be relevant to refer to the decision of this court in the case of Vishwanath Gupta Vs. Smt. Parbati Devi and others: AIR 1982 All 106 wherein in para 9 , has been held as follows:
"9. Relying upon the observation aforesaid, it was urged by the learned counsel for the appellant that the mere fact that the case had been transferred for trial by the Civil Judge could not cure the defect of initial wrong presentation of the suit. This submission overlooks that the case which was being dealt with by the Division Bench was one in which the suit had been instituted in the Court of a Munsif other than the one in whose jurisdiction the cause of action had arisen. Besides, the phraseology of Section 25, C. P. C. of the year 1877 was different from that of Section 24 of the Code of 1908. In the latter, the District Judge was empowered to make a transfer at any stage of the proceedings by adding those words in specific terms. The report of the case does not show any reason on which account, this Court felt that the defect in the initial presentation of the suit could not be cured. However, since the law declared by the Division Bench related to a provision different from the one which was in force at the time of the decision of the present case, it is not necessary to pursue the matter any further."
It is also worthwhile to note that the provision of Section 24(5) C.P.C. was inserted by Act no. 104 of 1976 w.e.f. 1.2.1977. Therefore , the law laid down in the case of Raja Setrucharlu Ramabhadra Raju Bahadur and others Vs. Maharaja of Jeypore and others : AIR 1919 Privy Council 150, (which was decided in the year 1919) as relied upon by the learned counsel for the revisionists, has no relevancy to the facts of the present case particularly in view of the insertion of Section 24(5) in the Code of civil procedure vide Act No. 104 of 1976 w.e.f. 1.2.1977.
It is also worthwhile to mention here that Section 24 (5) Code of Civil Procedure specifically provides the power to the superior court to transfer the case from a court which has no jurisdiction to the competent court. If instead of adopting the procedure provided under order VII Rule 10 C.P.C. , one of the parties in the suit invokes the statutory remedy as provided under section 24 (5) C.P.C. , it makes no difference as it is only a technicality which cannot come into the way of deciding the trial by the competent court having its jurisdiction.
In the present case, admittedly, the trial is pending before the trial court i.e. Addl. District Judge which is the competent court to try the suit and if the prayer of the revisionists is allowed for return of the plaint, the suit in question would again be presented before the same court of the Addl. District Judge, Gautam Buddha Nagar where the suit in question is already pending for disposal, therefore, it would lead to ridiculous situation if the prayer of the revisionist is allowed. Thus, I do not find any infirmity in the impugned order warranting an interference by this court in exercise of revisional powers under section 115 of the Code of Civil Procedure. The impugned order, in my opinion , does not suffer from any error of law or jurisdiction.
In view of what has been discussed herein above, the revision fails and is accordingly dismissed .
No order as to costs.
Order Date :- 26.9.2014 MLK