Court No. - 33
Case :- FIRST APPEAL No. - 636 of 2018 Appellant :- Shashwat Srivastava Respondent :- Smt. Neha Counsel for Appellant :- Rishi Chadha Counsel for Respondent :- Nitin Sharma
Hon'ble Manoj Misra,J. Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Rishi Chadha for the plaintiff-appellant and Sri Nitin Sharma for the defendant-respondent.
Considering that the appeal can be decided on a pure question of law, therefore we do not consider it necessary to invite counter affidavit. Accordingly, with the consent of learned counsel for the parties, this appeal is being decided finally, at this stage itself.
The plaintiff-appellant had instituted suit no.515 of 2014 for divorce against the defendant-opposite party. The said suit was instituted in the Family Court at Kanpur Dehat. In the said suit, the defendant-respondent raised an objection as regards the territorial jurisdiction of the Family Court, Kanpur Dehat to entertain the suit on the ground that the parties had not last resided together within the territorial jurisdiction of Kanpur Dehat; and there was no statement in the plaint that the marriage was solemnized within the territorial jurisdiction of Kanpur Dehat. On the aforesaid objection, the court below by the order impugned, proceeded to reject the plaint under Order VII Rule 11 (d) CPC.
Learned counsel for the appellant has assailed the order impugned on the ground that on the ground of lack of territorial jurisdiction, the plaint is not liable to be rejected under Order VII Rule 11 (d) CPC. Rather, the court ought to have returned the plaint for presentation before a court having jurisdiction. In support of the above submission, attention of the court has been invited to the provisions of Order VII Rule 10 CPC.
Sri Nitin Sharma, learned counsel for the defendant- respondent, submits that since admittedly the court at Kanpur Dehat had no jurisdiction to proceed further in the suit, the suit would be barred by law and hence the order passed by the court below is legally justified.
We have heard the rival submissions.
The Order VII Rule 10 CPC provides as follows :
"10. Return of plaint.
(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
[Explanation.--For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.]
(2) Procedure on returning plaint.--On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
The Order VII Rule 11 (d) CPC provides as follows :
"11. Rejection of plaint.-The plaint shall be rejected in the following cases:-
(d) where the suit appears from the statement in the plaint to be barred by any law;
A bare perusal of the aforesaid two provisions would reveal that a plaint is liable to be rejected where the suit appears to be barred by law whereas Order VII Rule 10 CPC deals with a situation where the court is to return the plaint to be presented in a court in which the suit should have been instituted.
As the court below has found that the court at Kanpur Dehat had no jurisdiction because neither the parties had last resided together within its jurisdiction nor the marriage had been solemnized within its jurisdiction, the provisions of Order VII Rule 10 CPC were attracted and therefore appropriate course for the court below was to return the plaint to be presented in a court in which the suit should have been instituted. We are therefore of the view that rejection of the plaint under Order VII Rule 11 (d) CPC was not justified. Accordingly, we allow the appeal. The order dated 20th August, 2018, passed by the court below rejecting the plaint of suit no.515 of 2014 is hereby set aside. The court below shall take recourse to the provisions of Order VII Rule 10 CPC if it finds that it has no territorial jurisdiction to proceed further in the suit.
The appeal stands allowed as above. There is no order as to costs.
Order Date :- 26.11.2018. Rks.