- (1.) These appeals have been preferred against the impugned judgment and order dated 10.12.2010 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application Nos.5036-5037 of 2010, reversing and setting aside the order dated 12.3.2010, passed by the Addl. District Judge, Fast Track Court, Surat in Misc. Civil Appeal Nos.29 and 30 of 2008 as well as the order dated 28.9.2007, passed in Special Execution Petition Nos.17 and 18 of 2007, passed by the 2nd Additional Senior Civil Judge, Surat.
(2.) Facts and circumstances giving rise to these appeals are that: A. A contract for re-construction of cement godown, site office and warehouse for LPG Plant at Kawas in Surat District was awarded by the appellant to the respondent to be completed on or before 8.8.1984 vide agreement dated 9.2.1984. The respondent completed the work with an inordinate delay and possession could be taken by the appellant only on 31.6.1985. The respondent filed Civil Suit Nos.60, 61 and 62 of 1986 against the appellant in the Civil Court at Mehsana to recover the outstanding dues from the appellant. B. The Civil Court vide judgment and decree dated 31.1.1994 allowed Civil Suit Nos.61 and 62 of 1986 in favour of the respondent. C. Aggrieved, the appellant filed First Appeal Nos.1451, 1452 and 1453 of 1994 before the High Court of Gujarat challenging the said judgment and decree dated 31.1.1994. The High Court vide common judgment and order dated 18.3.1997 held that the Civil Court at Mehsana did not have territorial jurisdiction to entertain the suits. Therefore, the said judgment and decrees passed in the civil suits were set aside and the Civil Court at Mehsana was directed to return the plaints to the respondent so that the same may be presented before the appropriate court having jurisdiction. D. The plaints were returned to the respondent in the aforesaid civil suits, who instituted the same before the Civil Court at Surat on 3.2.1999 being Civil Suit Nos.56, 57 and 58 of 1999. The said suits were allowed by the 3rd Additional Senior Civil Judge vide judgment and decree dated 21.9.2006 holding that the respondent was entitled to receive an amount of Rs.1,29,138/-, Rs.1,69,757/- and Rs.58,616/- in the respective suits with a future interest @ 12% per annum from the date of filing of the suit till realisation. E. The appellant complied with the decrees passed by the 3rd Addl. Senior Civil Judge and made the payment of decretal amount to the respondent calculating the interest on the principal sum from 3.2.1999, i.e. the date on which the respondent had presented the plaints in the court of competent jurisdiction at Surat. F. The respondent after receiving the said amount filed Special Execution Petition Nos. 17 and 18 of 2007 on 5.3.2007 claiming interest for the period 1986 to 1999, i.e. during the period when the suit remained pending before the court at Mehsana which had no jurisdiction. The Executing Court vide order dated 28.9.2007 dismissed the Execution petition observing that respondent was entitled to interest from the date of filing of the suit at Surat and not from the date on which the plaint was presented at Mehsana. G. Aggrieved, the respondent preferred Misc. Civil Appeal Nos.29, 30 and 35 of 2008 before the District Court at Surat and the same were dismissed vide order dated 12.3.2010. H. Aggrieved, the respondent challenged the said order dated 12.3.2010 by filing Special Civil Application Nos.5036 and 5037 of 2010 before the High Court of Gujarat at Ahmedabad and the said applications have been allowed vide order dated 10.12.2010 holding that the respondent was entitled to interest from the date of institution of the suit at Mehsana Court. Hence these appeals.
(3.) Shri Parag P. Tripathi, learned Senior counsel appearing for the appellant duly assisted by Shri Nishant Menon, Advocate has submitted that the plaints had initially been instituted at Mehsana Court which had no territorial jurisdiction to entertain these suits and even after being decreed, the High Court vide order dated 18.3.1997 had rightly set aside the judgment and decrees and asked the court at Mehsana to return the plaints to the respondent so that the plaintiff could present them before the court of competent territorial jurisdiction. Therefore, the order of the High Court has to be understood to have been passed in view of the provisions of Order VII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') and not a case of transfer of a suit from the Court at Mehsana to the Civil Court, Surat. Once the plaint is presented after being returned from the court having no jurisdiction, it is to be treated as a fresh suit and even if the trial was conducted earlier, as in the instant case, it had to be done de novo. The only protection could be to take advantage of the provisions of Section 14 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act') and the court fees paid earlier may be adjusted but by no stretch of imagination it can be held to be a continuation of the suit. Had it been so there would be no occasion for the High Court to set aside the judgment and decree of the civil court at Mehsana at such a belated stage. Thus the impugned judgment and order is liable to be set aside.;