- (1.) Heard Mr. S.K. Mehrotra, learned Counsel for the petitioner and Ms. Kirti Srivastava, learned Standing Counsel. The petitioner is aggrieved with order dated 27.3.2010 passed by the District Judge, Unnao in Misc. Case No. 52 of 2009 to the extent that through the finding given in the order it appears that learned District Judge has validated the proceedings held before the Court of incompetent jurisdiction. Briefly the facts of the case are that the plaintiff filed a suit for arrears of rent and damages and ejectment from the shop in question against defendant in the Court of Judge, Small Causes Court/Civil Judge (Senior Division), Unnao. When the case was fixed for final arguments, the defendant raised plea of jurisdiction. The valuation of suit was Rs. 7000/-. The plaintiff instead of getting returned the plaint for presentation before the Court of competent jurisdiction moved an application under section 24 of Code of Civil Procedure to transfer the case to the Small Causes Court/Civil Judge (Senior Division), Unnao.
(2.) The defendant vehemently opposed the transfer application and submitted that proceeding of the case is null and void as the Civil Judge (Junior Division), Unnao has had no jurisdiction to try the suit. Therefore, the plaintiff cannot take benefit of proceedings, which are without jurisdiction and further requested to return the plaint to be presented before the Court of competent jurisdiction in accordance with provisions of Order VII, Rule 10 CPC. The District Judge allowed the plaintiffs application under section 24 of the Code of Civil Procedure and instead of issuing direction to present the same before the Court of competent jurisdiction as provided under Order VII, Rule 10 CPC transferred the case to the Court of Civil Judge (Senior Division),Unnao to proceed with the case from the stage it is transferred. In the present case, the evidence has already been produced and the case is at the stage of final arguments.
(3.) The learned Counsel for the petitioner submits that the proceeding held before the Court of incompetent jurisdiction at each and every stage of case becomes without jurisdiction, therefore, the suit is liable to be tried de novo from the stage of presentation of plaint by the Court of competent jurisdiction as it has been presented before the said Court. In support of his contentions he cited a case i.e., R. Venkataswami Naidu v. South India Viscose Ltd. Coimbatore, 1985 AIR(Mad) 257, in which the Madras High Court has held that if the Court had no jurisdiction at all to entertain the suit, anything done by it, by assuming such jurisdiction, would be totally without competence on its part to do so and merely because such incompetence is discovered subsequently that would not render the intermediate act valid and binding till the date of discovery of such incompetence. To accept this argument would lead to a very strange situation in that orders passed by a Court, incompetent to entertain the proceedings would be valid between the date when the proceedings are entertained and the discovery of its incompetence and would not be either binding or operative, after the date of discovery of the incompetence of the Court. Either the Court is competent or it is incompetent to entertain suits and pass orders. He further cited a case of Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. and another, 2006 62 AllLR 335 In this case due to amendment made in the written statement the Court where the suit was originally instituted i.e., before Delhi Court lost its jurisdiction as the property was situated at Gurgaon. Accordingly the plaint was ordered to be returned to the plaintiff for presentation to proper Court. The order was confirmed by the High Court as well by the Hon'ble Supreme Court. The plaintiff moved the application before Hon'ble Supreme Court to the effect that since 17 years have passed from the institution of suit and the pleading are complete, evidence is recorded and the arguments are over, the Hon'ble Supreme Court may direct the Gurgaon Court to take up the suit from the stage at which it stands transferred and to decide it expeditiously. The respondent/defendant opposed the application on the ground that this Court held that there was inherent lack of jurisdiction in Delhi Court, the only Court which had jurisdiction was the Court of Gurgaon where the property was situated, therefore, when the plaint is presented before Gurgaon Court, it would not be treated as continuation of proceedings of Court which had no jurisdiction but a suit would commence on the day when the plaint would be presented to the proper Court. The Hon'ble Supreme Court held that section 24 and/or section 25 of the Code of Civil Procedure have no application to the said case and it dealt with the matter under Order VII, Rule 10 of the Code of Civil Procedure relying with judgment rendered in the case of Amar Chand Inani v. Union of India, 1973 1 SCC 115, in which the Hon'ble Supreme Court held as under: It was, however, argued by Counsel for the appellant that the suit instituted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the Trial Court. We think there was no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the Trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court?;