R.P. OCONNOR Vs. P.G. SAMPATH KUMAR
HIGH COURT OF MADRAS
P.G. Sampath Kumar
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Rajamannar, C.J. -
(1.) THE applicant filed a suit on the original side of this court for the recovery of a sum of Rs. 6720 alleged to be due on a promissory note executed by the defendant in favour of his mother. The defendant pleaded 'inter alia' that the court had no jurisdiction to entertain the suit as the defendant was a permanent resident of Bangalore and the promissory note and the endorsements thereon were made outside the limits of the original jurisdiction of this court. Thereupon, the applicant took out an application praying that the plaint which he had filed should be returned to him. In the affidavit filed by him in support of the application he stated that in order to enable him to pursue his remedies it is necessary that an order should be made directing the return of the plaint to him and this court had jurisdiction to return the plaint for presentation to the proper court once it found it had no jurisdiction to entertain the suit. The application came on before Panchapakesa Ayyar J. who heard counsel on both sides and directed the papers to be placed before me for constituting a Full Bench to consider this point. I have however thought it was unnecessary to constitute a Full Bench because there was no conflict of decisions of Division Benches in our Court.
(2.) THE question for decision as framed by Panchapakesa Ayyar J. is as follows :
"Whether a Chartered High Court has not got inherent powers under Section 151, C. P. C. to return a plaint entertained by it in the exercise of its ordinary or extraordinary original jurisdiction for presentation to the proper court for the ends of justice despite the provisions of Order 49, Rule 3 , C. P. C."
Order 7, Rule 10(1) of the Code provides that a plainf shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Order 49, Rule 3 of the Code declares that this rule among other rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. There is no rule similar to Order 7, rule in of the Code made by this Court in the exercise of its rule making powers. The position therefore is that there is no express provision in the Code or in the rules framed by this court for the return of a plaint filed on the Original Side of this court when it is found that this court has no jurisdiction to entertain the suit. It therefore becomes necessary to consider whether Section 151 of the Code can be invoked, that is -to say, whether it, can be held that this court has inherent power to .make an order directing the return of a plaint if it is necessary for the ends of justice or to prevent abuse of the process of court.
(3.) THERE is very little or direct authority on this question. The only decision in which it is specifically discussed is that in 'Bhaiyat v. L. Chong Kha',, AIR 1934 Rang 342 (A) in which Leach J. as he then was, held that although Order 7, Rule 10, Civil P. C. does not apply to the High Court3 it may by reason of its inherent powers direct that the plaint shall be returned to the plaintiff so that he may file it in the proper court if it finds that it has no jurisdiction to entertain the suit. The learned Judge based his decision chiefly on the fact that it would be unjust to require a suitor, who has filed a suit in a court in the belief that he would obtain from it an adjudication on his claim but could not do so because the court had no jurisdiction, to pay another court -fee in the circumstances. He relied upon the observations of West J. in 'Prabhakarbhat v. Vishwambhar',, 8 Bom 313 (FB). That learned Judge said :
"Whether a court -fee on the institution of a suit has been paid in a court which cannot possibly afford the relief sought, it does nof seem consistent with sound principle that the plaintiff should be condemned to lose the fee thus paid or that he should not be allowed to ask without paying a second fee for an adjudication from a court which can really give one."
With great respect to the learned Judge, I agree with him in this view.;
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