Full Judgment Text
2022:BHC-AS:25569
32. ao 922-22 & ia.doc
Diksha Rane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 922 OF 2022
WITH
INTERIM APPLICATION NO. 18699 OF 2022
KAIZAR F. PITHAPURWALA & ORS. ..APPELLANTS
VS.
KHURSHID SAFAKAT HUSSAIN LADHI
& ORS. ..RESPONDENTS
------------
Mr. Ashwin Bhadang i/b. Mr. Shabbir S. Kapadia for the
appellants.
Mr. Hasan Sayed a/w. Mr. Rafique Ahmed Shaikh for the
respondent no.1.
------------
CORAM : M. S. KARNIK, J.
DATE : OCTOBER 12, 2022.
ORAL JUDGMENT :
1. Heard learned counsel.
2. The order under challenge is dated May 24, 2022
passed below Exhibit ‘1’ by the City Civil Court, Mumbai,
thereby refusing to dispose of the suit on merits for the
reasons mentioned in the said order.
3. The suit filed by the appellants-plaintiffs, duly
contested by the defendants-respondents proceeded till the
stage of judgment. When the matter was listed on May 24,
2022, the learned trial Judge was of the opinion that it is
not possible to deliver the judgment for the reasons stated
in the order. For convenience the order is reproduced, which
reads thus: -
1
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
O R A L O R D E R
(Delivered on 24/05/2022)
1. Matter is kept today for Judgment however, for
the reasons stated hereunder, it is not possible to
deliver Judgment.
2. Plaintiffs had filed Suit No. 521 of 2009 earlier in
this City Civil Court wherein, relief in terms of prayer
clause (a) was claimed to declare that plaintiffs have
½ share in the assets of the deceased as per Muslim
Personal Law. Contentions for seeking the said relief
were raised in para-5 of the plaint in said earlier suit.
By raising same contentions in para-6 of the present
plaint, plaintiffs have claimed similar relief of
declaration and certain other reliefs. Learned advocate
for defendant No.1 pointed out that as per order
dtd.24/04/2009 passed in said earlier Suit No.521 of
2009, this court has directed to return the plaint to the
plaintiffs for proper presentation by holding that this
court has no pecuniary as well as inherent jurisdiction
to try and entertain the suit. Reasons for holding that
this court has no inherent jurisdiction are recorded in
para 10 and 11 of the said order. It would be just to
reproduce here para 10 and 11 of the said order which
read as under;
“10. Secondly, defendant has also challenged the
jurisdiction of this court on the ground of specific
bar for City Civil Court to deal intestate manner. For
this purpose, we have to make reference to section
3 of the Bombay City Civil Court Act, 1948 sub
clause () provides that the suit in relation to
testamentary intestate of matrimonial aspects are
to be dealt by High Court. Thus, City Civil Court is
expressly barred from dealing with the matter
raising aspect relating to intestate succession.
11. In present case, the plaintiff himself is claiming
rights of succession, as per Shia Personal Law by
making proposition in para 5 of the plaint.
According to plaintiff, due to provisions of
Mohammdan Law that are entitled for ½ share in
the assets of deceased. Thus virtually plaintiff is
2
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
requiring the court to decide intestate succession
which is expressly barred by section 3 of the City
Civil Court Act therefore this court also does not
have inherent jurisdiction to try and entertain the
suit...”
3. It is not in dispute that order passed by this
court in earlier Suit No.521 of 2009 was not challenged
by the plaintiffs. Learned advocate for the plaintiffs
submitted that in view of the order passed by this court
in the earlier suit, plaintiffs had filed the present suit
before Hon’ble High Court in its Original Ordinary
Jurisdiction however, on account of the increase in the
pecuniary jurisdiction limits of this court, suit has been
transferred to this City Civil Court and plaintiffs are not
at fault in that regard.
4. It is an admitted fact that this suit is transferred
to this City Civil Court on account of increase in
pecuniary jurisdiction limits. Plaint in earlier suit was
returned to the plaintiffs for presentation in proper
court by holding that this court has no inherent
jurisdiction also to try and entertain the suit in view of
the bar under Section 3 of the City Civil Courts Act. It
is not in dispute that order passed by this court in
earlier suit that this order has no inherent jurisdiction
to try and entertain the suit has not been set aside.
Though the plaintiffs have presented a fresh plaint
instead of presenting the returned plaint, the relief of
declaration claimed in this suit is based on the same
grounds which were raised in earlier suit and since this
court has recorded a finding that it has no inherent
jurisdiction to try and entertain the suit and since it is
not the contention of the plaintiffs that said order is set
aside, this court is of the opinion that this court cannot
dispose off this suit on merits.
5. As mentioned above, learned advocate for the
plaintiffs submitted that plaintiffs had properly
presented the suit in proper court and plaintiffs are not
at fault in respect of its transfer to this court. He
submitted that plaintiffs will take appropriate steps for
transfer of the suit back to the Hon’ble High Court. In
3
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
the result, since advocate for the plaintiffs submitted
that plaintiffs will take appropriate steps, matter is
adjourned for steps to 21/06/2022.”
4. Learned counsel for the respondent no.1 raised a
preliminary objection regarding the maintainability of this
appeal under Order XLIII Rule 1(a) of the Code of Civil
Procedure (hereafter ‘the CPC’ for short). In his submission,
the appeal is not maintainable as the City Civil Court has
refused to dispose of the suit on merits for reasons stated
in the order which are in consonance with law. He submits
that the order is not of returning the plaint to be presented
to the proper Court. In his submission, such a challenge is
not tenable under Order XLIII Rule 1 of the CPC.
5. Responding to the preliminary objection regarding
maintainability of the appeal, learned counsel for the
appellants-plaintiffs submitted that the impugned order
passed by the City Civil Court has to be construed as one
returning a plaint. In his submission, there was an earlier
suit filed by the plaintiffs before the City Civil Court in which
the plaint was returned for presentation in the proper Court.
Thereafter, the plaintiffs filed a fresh suit in the High Court.
On account of increase in the pecuniary jurisdiction, the suit
was transferred to the City Civil Court. He submits that a
fresh suit is maintainable. Relying on the decision of this
Court in the case of Aasif Ahmedally Porbunderwalla vs.
1
Mrs. Daulat Akbarali Porbunderwalla , it is contended
1 N.N. 1085/11 in S.C.Suit No. 2393/2001 decided on 22/8/2013.
4
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
that a fresh suit can always be filed which could proceed in
accordance with law from the stage of its presentation. In
his submission, the learned Judge was not justified in
refusing to entertain the suit on merits. Further, relying on
the decision in the case of Jagdish Hari Thatte vs.
2
Municipal Corporation of Greater Bombay & anr. ,
learned counsel submitted that all the issues which are
framed in the suit should have been decided. Learned
counsel submitted that at the stage of judgment, the
learned Judge was not justified in observing that as the
plaint in an earlier instituted suit was returned, the suit
cannot be decided on merits, completely overlooking that
the earlier suit was not disposed of on merits. In his
submission, this is not a proper course adopted by the trial
Court.
6. Heard learned counsel on the maintainability of the
appeal.
7. There is no disputing the proposition of law laid down
by this Court in Aasif Ahmedally Porbunderwalla (supra)
and Jagdish Hari Thatte (supra) relied upon by learned
counsel for the appellants. The question that arises for
consideration is whether the impugned order has the effect
of returning a plaint in terms of Order VII Rule 10 so as to
maintain the present appeal under Order XLIII Rule 1(a) of
the CPC.
8. There is no dispute that in the year 2009, a suit
2 (2007) 1 Bom CR 577
5
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
(hereafter ‘prior suit’ for short) came to be filed by the
plaintiffs in the City Civil Court. An objection to the
jurisdiction of the City Civil Court in view of the bar in
Section 3 of the Bombay City Civil Court Act, 1948, as well
as pecuniary jurisdiction was raised whereupon the plaint
was returned for presentation in the proper Court. The
plaintiffs thereafter filed a fresh suit (hereafter ‘subsequent
suit’ for short) in the High Court. In view of the increase in
the pecuniary jurisdiction limits of the City Civil Court, the
‘subsequent suit’ was transferred to the City Civil Court. The
‘subsequent suit’ was heard by the City Civil Court and the
stage reached when the matter was posted for judgment. It
is at this stage that the City Civil Court noticed that the
plaint in the ‘prior suit’ was returned for presentation before
the proper Court. Instead of presenting the plaint in the
proper Court, the plaintiffs instituted the ‘subsequent suit’
in the High Court.
9. The learned Judge observed that “ though the plaintiffs
have presented a fresh plaint instead of presenting the
returned plaint, the relief of declaration claimed in this suit
is based on the same grounds which were raised in earlier
suit and since this court has recorded a finding that it has
no inherent jurisdiction to try and entertain the suit and
since it is not the contention of the plaintiffs that said order
is set aside, this court is of the opinion that this court
cannot dispose off this suit on merits. ”
10. It is pertinent to note that the plaint was returned in
6
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
the ‘prior suit’ in view of the observations made that the
jurisdiction of the City Civil Court is expressly barred under
Section 3 of the Bombay City Civil Court Act, 1948 in
respect of matters relating to intestate succession. In the
‘prior suit’, the learned Judge held that the City Civil Court
does not have inherent jurisdiction to try and entertain the
suit. In the ‘prior suit’, the plaint was returned by the trial
Court on two counts; firstly pecuniary jurisdiction and
secondly, lack of inherent jurisdiction as in view of the
express bar, the aspect of intestate succession cannot be
gone into by the trial Court. The plaintiffs upon return of
plaint in the ‘prior suit’, instead of presenting the plaint in
the proper Court, were well within their rights to institute a
fresh suit in the High Court, which they did. It is on account
of enhancement of the pecuniary jurisdiction of the trial
Court that the ‘subsequent suit’ stood transferred from the
High Court. Even learned counsel for the appellants-
plaintiffs submitted that it is not the fault of the appellants
that the suit came to be transferred from the High Court.
11. I find that the trial Court did not entertain the suit on
merits, as the finding in the ‘prior suit’, as to the inherent
lack of jurisdiction in view of the bar under Section 3 of the
Bombay City Civil Court Act, 1948, has not been set aside.
As the findings recorded by the trial Court that it has no
inherent jurisdiction to try and entertain the suit is not set
aside, learned Judge opined that the trial Court cannot
dispose the ‘subsequent suit’ on merits. The impugned
7
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
order, no doubt, was passed at the stage of judgment. The
trial Court has taken a position that the bar still applies as
the earlier order in the ‘prior suit’ stands and hence it
cannot decide the ‘subsequent suit’ on merits. This the trial
Court noticed at the stage of judgment.
12. I find that the City Civil Court refused to decide the
‘subsequent suit’ on merits in view of its observations in the
‘prior suit’. Order VII Rule 10 of the CPC which makes
provisions for ‘return of plaint’ reads thus:-
“10. Return of plaint . - (1) [Subject to the
provisions of rule 10-A, 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.”
13. An appeal under Order XLIII Rule 1 (a) is maintainable
against an order under Rule 10, returning a plaint to be
presented to the proper Court. A reading of Rule 10(1) of
Order VII reveals that 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. Rule 10(2) of Order VII
provides that on returning a plaint, the Judge shall endorse
8
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
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.
14. On a reading of the impugned order, it is not at all
indicative about the plaint being returned in the ‘subsequent
suit’ to be presented to the Court in which the suit should
have been instituted. The impugned order, in my opinion,
cannot be construed as the one of return of a plaint for
presentation in the proper Court. The trial Court, for the
reasons recorded, refused to decide the ‘subsequent suit’ on
merits as the relief of declaration claimed in the
‘subsequent suit’ which was based on the same grounds
which were raised in the ‘prior suit’ and since the trial Court
had recorded a finding in the ‘prior suit’ that it has no
inherent jurisdiction to try and entertain the suit, moreover,
as the order in the ‘prior suit’ has not been set aside. It is
because of the decision of the trial Court in the ‘prior suit’,
wherein the plaintiffs had prayed for the same reliefs as in
the ‘subsequent suit’, that the learned Judge refused to
decide the ‘subsequent suit’ on merits. The impugned order
by no stretch of imagination can be construed as one of
return of plaint within the meaning of Rule 10 of Order VII
of the CPC. The plaint was already returned once in the
‘prior suit’. Noticing that the findings in the ‘prior suit’ are
not set aside, the trial Court refused to decide the
‘subsequent suit’ on merits in view of the earlier order.
9
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
15. Consequently, I have no option but to uphold the
objection of the learned counsel for the respondent no.1
that this appeal under Order XLIII Rule 1(a) of the CPC is
not maintainable. The submissions advanced by learned
counsel for the appellants are on merits which may be
raised in appropriate proceedings, but not by way of an
appeal from order.
16. The appeal from order is held not maintainable,
reserving the liberty of the appellants to challenge the
impugned order in appropriate proceedings.
17. It is made clear that I may not be understood to have
expressed any opinion on the merits of the contentions
raised by learned counsel for the appellants and the same
are kept open.
18. Learned counsel for the appellants submitted that the
statement recorded in paragraph 5 of the impugned order
was not made by them before the learned Judge. If that is
so, it is for the appellants to approach the City Civil Court
and obtain necessary clarification.
19. This appeal is disposed of as not maintainable. No
order as to costs.
20. The interim application is also disposed of.
(M.S.KARNIK, J.)
10
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
Diksha Rane
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 922 OF 2022
WITH
INTERIM APPLICATION NO. 18699 OF 2022
KAIZAR F. PITHAPURWALA & ORS. ..APPELLANTS
VS.
KHURSHID SAFAKAT HUSSAIN LADHI
& ORS. ..RESPONDENTS
------------
Mr. Ashwin Bhadang i/b. Mr. Shabbir S. Kapadia for the
appellants.
Mr. Hasan Sayed a/w. Mr. Rafique Ahmed Shaikh for the
respondent no.1.
------------
CORAM : M. S. KARNIK, J.
DATE : OCTOBER 12, 2022.
ORAL JUDGMENT :
1. Heard learned counsel.
2. The order under challenge is dated May 24, 2022
passed below Exhibit ‘1’ by the City Civil Court, Mumbai,
thereby refusing to dispose of the suit on merits for the
reasons mentioned in the said order.
3. The suit filed by the appellants-plaintiffs, duly
contested by the defendants-respondents proceeded till the
stage of judgment. When the matter was listed on May 24,
2022, the learned trial Judge was of the opinion that it is
not possible to deliver the judgment for the reasons stated
in the order. For convenience the order is reproduced, which
reads thus: -
1
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
O R A L O R D E R
(Delivered on 24/05/2022)
1. Matter is kept today for Judgment however, for
the reasons stated hereunder, it is not possible to
deliver Judgment.
2. Plaintiffs had filed Suit No. 521 of 2009 earlier in
this City Civil Court wherein, relief in terms of prayer
clause (a) was claimed to declare that plaintiffs have
½ share in the assets of the deceased as per Muslim
Personal Law. Contentions for seeking the said relief
were raised in para-5 of the plaint in said earlier suit.
By raising same contentions in para-6 of the present
plaint, plaintiffs have claimed similar relief of
declaration and certain other reliefs. Learned advocate
for defendant No.1 pointed out that as per order
dtd.24/04/2009 passed in said earlier Suit No.521 of
2009, this court has directed to return the plaint to the
plaintiffs for proper presentation by holding that this
court has no pecuniary as well as inherent jurisdiction
to try and entertain the suit. Reasons for holding that
this court has no inherent jurisdiction are recorded in
para 10 and 11 of the said order. It would be just to
reproduce here para 10 and 11 of the said order which
read as under;
“10. Secondly, defendant has also challenged the
jurisdiction of this court on the ground of specific
bar for City Civil Court to deal intestate manner. For
this purpose, we have to make reference to section
3 of the Bombay City Civil Court Act, 1948 sub
clause () provides that the suit in relation to
testamentary intestate of matrimonial aspects are
to be dealt by High Court. Thus, City Civil Court is
expressly barred from dealing with the matter
raising aspect relating to intestate succession.
11. In present case, the plaintiff himself is claiming
rights of succession, as per Shia Personal Law by
making proposition in para 5 of the plaint.
According to plaintiff, due to provisions of
Mohammdan Law that are entitled for ½ share in
the assets of deceased. Thus virtually plaintiff is
2
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
requiring the court to decide intestate succession
which is expressly barred by section 3 of the City
Civil Court Act therefore this court also does not
have inherent jurisdiction to try and entertain the
suit...”
3. It is not in dispute that order passed by this
court in earlier Suit No.521 of 2009 was not challenged
by the plaintiffs. Learned advocate for the plaintiffs
submitted that in view of the order passed by this court
in the earlier suit, plaintiffs had filed the present suit
before Hon’ble High Court in its Original Ordinary
Jurisdiction however, on account of the increase in the
pecuniary jurisdiction limits of this court, suit has been
transferred to this City Civil Court and plaintiffs are not
at fault in that regard.
4. It is an admitted fact that this suit is transferred
to this City Civil Court on account of increase in
pecuniary jurisdiction limits. Plaint in earlier suit was
returned to the plaintiffs for presentation in proper
court by holding that this court has no inherent
jurisdiction also to try and entertain the suit in view of
the bar under Section 3 of the City Civil Courts Act. It
is not in dispute that order passed by this court in
earlier suit that this order has no inherent jurisdiction
to try and entertain the suit has not been set aside.
Though the plaintiffs have presented a fresh plaint
instead of presenting the returned plaint, the relief of
declaration claimed in this suit is based on the same
grounds which were raised in earlier suit and since this
court has recorded a finding that it has no inherent
jurisdiction to try and entertain the suit and since it is
not the contention of the plaintiffs that said order is set
aside, this court is of the opinion that this court cannot
dispose off this suit on merits.
5. As mentioned above, learned advocate for the
plaintiffs submitted that plaintiffs had properly
presented the suit in proper court and plaintiffs are not
at fault in respect of its transfer to this court. He
submitted that plaintiffs will take appropriate steps for
transfer of the suit back to the Hon’ble High Court. In
3
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
the result, since advocate for the plaintiffs submitted
that plaintiffs will take appropriate steps, matter is
adjourned for steps to 21/06/2022.”
4. Learned counsel for the respondent no.1 raised a
preliminary objection regarding the maintainability of this
appeal under Order XLIII Rule 1(a) of the Code of Civil
Procedure (hereafter ‘the CPC’ for short). In his submission,
the appeal is not maintainable as the City Civil Court has
refused to dispose of the suit on merits for reasons stated
in the order which are in consonance with law. He submits
that the order is not of returning the plaint to be presented
to the proper Court. In his submission, such a challenge is
not tenable under Order XLIII Rule 1 of the CPC.
5. Responding to the preliminary objection regarding
maintainability of the appeal, learned counsel for the
appellants-plaintiffs submitted that the impugned order
passed by the City Civil Court has to be construed as one
returning a plaint. In his submission, there was an earlier
suit filed by the plaintiffs before the City Civil Court in which
the plaint was returned for presentation in the proper Court.
Thereafter, the plaintiffs filed a fresh suit in the High Court.
On account of increase in the pecuniary jurisdiction, the suit
was transferred to the City Civil Court. He submits that a
fresh suit is maintainable. Relying on the decision of this
Court in the case of Aasif Ahmedally Porbunderwalla vs.
1
Mrs. Daulat Akbarali Porbunderwalla , it is contended
1 N.N. 1085/11 in S.C.Suit No. 2393/2001 decided on 22/8/2013.
4
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
that a fresh suit can always be filed which could proceed in
accordance with law from the stage of its presentation. In
his submission, the learned Judge was not justified in
refusing to entertain the suit on merits. Further, relying on
the decision in the case of Jagdish Hari Thatte vs.
2
Municipal Corporation of Greater Bombay & anr. ,
learned counsel submitted that all the issues which are
framed in the suit should have been decided. Learned
counsel submitted that at the stage of judgment, the
learned Judge was not justified in observing that as the
plaint in an earlier instituted suit was returned, the suit
cannot be decided on merits, completely overlooking that
the earlier suit was not disposed of on merits. In his
submission, this is not a proper course adopted by the trial
Court.
6. Heard learned counsel on the maintainability of the
appeal.
7. There is no disputing the proposition of law laid down
by this Court in Aasif Ahmedally Porbunderwalla (supra)
and Jagdish Hari Thatte (supra) relied upon by learned
counsel for the appellants. The question that arises for
consideration is whether the impugned order has the effect
of returning a plaint in terms of Order VII Rule 10 so as to
maintain the present appeal under Order XLIII Rule 1(a) of
the CPC.
8. There is no dispute that in the year 2009, a suit
2 (2007) 1 Bom CR 577
5
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
(hereafter ‘prior suit’ for short) came to be filed by the
plaintiffs in the City Civil Court. An objection to the
jurisdiction of the City Civil Court in view of the bar in
Section 3 of the Bombay City Civil Court Act, 1948, as well
as pecuniary jurisdiction was raised whereupon the plaint
was returned for presentation in the proper Court. The
plaintiffs thereafter filed a fresh suit (hereafter ‘subsequent
suit’ for short) in the High Court. In view of the increase in
the pecuniary jurisdiction limits of the City Civil Court, the
‘subsequent suit’ was transferred to the City Civil Court. The
‘subsequent suit’ was heard by the City Civil Court and the
stage reached when the matter was posted for judgment. It
is at this stage that the City Civil Court noticed that the
plaint in the ‘prior suit’ was returned for presentation before
the proper Court. Instead of presenting the plaint in the
proper Court, the plaintiffs instituted the ‘subsequent suit’
in the High Court.
9. The learned Judge observed that “ though the plaintiffs
have presented a fresh plaint instead of presenting the
returned plaint, the relief of declaration claimed in this suit
is based on the same grounds which were raised in earlier
suit and since this court has recorded a finding that it has
no inherent jurisdiction to try and entertain the suit and
since it is not the contention of the plaintiffs that said order
is set aside, this court is of the opinion that this court
cannot dispose off this suit on merits. ”
10. It is pertinent to note that the plaint was returned in
6
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
the ‘prior suit’ in view of the observations made that the
jurisdiction of the City Civil Court is expressly barred under
Section 3 of the Bombay City Civil Court Act, 1948 in
respect of matters relating to intestate succession. In the
‘prior suit’, the learned Judge held that the City Civil Court
does not have inherent jurisdiction to try and entertain the
suit. In the ‘prior suit’, the plaint was returned by the trial
Court on two counts; firstly pecuniary jurisdiction and
secondly, lack of inherent jurisdiction as in view of the
express bar, the aspect of intestate succession cannot be
gone into by the trial Court. The plaintiffs upon return of
plaint in the ‘prior suit’, instead of presenting the plaint in
the proper Court, were well within their rights to institute a
fresh suit in the High Court, which they did. It is on account
of enhancement of the pecuniary jurisdiction of the trial
Court that the ‘subsequent suit’ stood transferred from the
High Court. Even learned counsel for the appellants-
plaintiffs submitted that it is not the fault of the appellants
that the suit came to be transferred from the High Court.
11. I find that the trial Court did not entertain the suit on
merits, as the finding in the ‘prior suit’, as to the inherent
lack of jurisdiction in view of the bar under Section 3 of the
Bombay City Civil Court Act, 1948, has not been set aside.
As the findings recorded by the trial Court that it has no
inherent jurisdiction to try and entertain the suit is not set
aside, learned Judge opined that the trial Court cannot
dispose the ‘subsequent suit’ on merits. The impugned
7
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
order, no doubt, was passed at the stage of judgment. The
trial Court has taken a position that the bar still applies as
the earlier order in the ‘prior suit’ stands and hence it
cannot decide the ‘subsequent suit’ on merits. This the trial
Court noticed at the stage of judgment.
12. I find that the City Civil Court refused to decide the
‘subsequent suit’ on merits in view of its observations in the
‘prior suit’. Order VII Rule 10 of the CPC which makes
provisions for ‘return of plaint’ reads thus:-
“10. Return of plaint . - (1) [Subject to the
provisions of rule 10-A, 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.”
13. An appeal under Order XLIII Rule 1 (a) is maintainable
against an order under Rule 10, returning a plaint to be
presented to the proper Court. A reading of Rule 10(1) of
Order VII reveals that 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. Rule 10(2) of Order VII
provides that on returning a plaint, the Judge shall endorse
8
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
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.
14. On a reading of the impugned order, it is not at all
indicative about the plaint being returned in the ‘subsequent
suit’ to be presented to the Court in which the suit should
have been instituted. The impugned order, in my opinion,
cannot be construed as the one of return of a plaint for
presentation in the proper Court. The trial Court, for the
reasons recorded, refused to decide the ‘subsequent suit’ on
merits as the relief of declaration claimed in the
‘subsequent suit’ which was based on the same grounds
which were raised in the ‘prior suit’ and since the trial Court
had recorded a finding in the ‘prior suit’ that it has no
inherent jurisdiction to try and entertain the suit, moreover,
as the order in the ‘prior suit’ has not been set aside. It is
because of the decision of the trial Court in the ‘prior suit’,
wherein the plaintiffs had prayed for the same reliefs as in
the ‘subsequent suit’, that the learned Judge refused to
decide the ‘subsequent suit’ on merits. The impugned order
by no stretch of imagination can be construed as one of
return of plaint within the meaning of Rule 10 of Order VII
of the CPC. The plaint was already returned once in the
‘prior suit’. Noticing that the findings in the ‘prior suit’ are
not set aside, the trial Court refused to decide the
‘subsequent suit’ on merits in view of the earlier order.
9
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::
32. ao 922-22 & ia.doc
15. Consequently, I have no option but to uphold the
objection of the learned counsel for the respondent no.1
that this appeal under Order XLIII Rule 1(a) of the CPC is
not maintainable. The submissions advanced by learned
counsel for the appellants are on merits which may be
raised in appropriate proceedings, but not by way of an
appeal from order.
16. The appeal from order is held not maintainable,
reserving the liberty of the appellants to challenge the
impugned order in appropriate proceedings.
17. It is made clear that I may not be understood to have
expressed any opinion on the merits of the contentions
raised by learned counsel for the appellants and the same
are kept open.
18. Learned counsel for the appellants submitted that the
statement recorded in paragraph 5 of the impugned order
was not made by them before the learned Judge. If that is
so, it is for the appellants to approach the City Civil Court
and obtain necessary clarification.
19. This appeal is disposed of as not maintainable. No
order as to costs.
20. The interim application is also disposed of.
(M.S.KARNIK, J.)
10
::: Uploaded on - 24/10/2022 ::: Downloaded on - 31/03/2024 17:09:46 :::