2014(6) ALL MR 880
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.B. CHAUDHARI, J.

Gangabisan Mayaramji Paliwal Vs. Sindi Vividha Karyakari Sahakari Society Ltd. & Ors.

Second Appeal No.447 of 1998

28th July, 2014

Petitioner Counsel: Mr. S.D. PALIWAL
Respondent Counsel: Mr. PRASHANT GODE

Civil P.C. (1908), O.7 R.10 - Maharashtra Co-operative Societies Act (1960), S.91 - Dismissal of suit - On ground of jurisdiction - Whether proper - Appellant member of co-operative society filed suit against society and purchaser of his property which was sold in auction for non-payment of dues - Courts below concurrently found that Co-operative Court and not civil court would have jurisdiction - Courts below did not address any issue on merits and dismissed the suit - Held, in such circumstances only course left open was to return the plaint to file in appropriate forum and not dismissal - Hence, dismissal of suit, held, erroneous. (Paras 3, 5)

JUDGMENT

JUDGMENT :- Mr. Deopujari, Advocate holding for Mr. Paliwal, learned counsel for the appellants, makes a request for adjournment of the matter on the ground that Advocate Paiwal is unable to attend the court today. In view of the peculiar facts of the case, request for adjournment is rejected.

2. After having heard Mr. Gode, learned counsel for respondent no.8, following substantial question of law arises for my determination.

(i) Whether the courts below committed error in law in not following the mandate of Order 7 Rule 10 of the CPC having concurrently held that the civil Court did not have jurisdiction to try the suit namely; Reg. C. S. No. 176/1974 and that the Cooperative Court has?

Answer:- Yes

3. It is not in dispute that the appellant filed Reg. C. S. No. 239/1992 claiming certain reliefs against respondent no.1 and the purchaser of his property that was sold in auction for non payment of dues. The appellant was a member of the cooperative society. The courts below, therefore, found that the appellant, being member of cooperative society and since he was raising the dispute triable under the Cooperative Societies Act in respect of the property auctioned by the authorities, the civil court did not have jurisdiction to try such a dispute between a member and the society. It is for that reason, both the courts below concurrently found that it was the cooperative court who would have jurisdiction to entertain and try the dispute under section 91 of the Maharashtra Cooperative Societies Act, 1960 and it is on that count, the trial court dismissed the suit while the lower appellate court confirmed the decree. The Courts below consequently did not address any issue on merits of the suit and only dismissed the same on the ground that it had no jurisdiction.

4. In this context, it is necessary to go look into the provisions of Order 7 Rule 10 of the C.P.C., which read thus:

"Order VII Rule 10

10. Return of plaint-

(1) Subject to the provisions of rule 10A, the plaint shall at any state 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."

5. In my opinion, reading of Order 7 Rule 10 of the CPC shows that in such circumstances, when the Civil Court has held that it has no jurisdiction the only course left open was to return the plaint to file it in the appropriate forum but it should not have dismissed the suit. As stated earlier, while deciding the suit, nothing was decided on merits. It is against these judgments passed by both the courts, the second appeal was filed by the original plaintiff.

6. Mr. Gode, learned counsel for respondent no.8, submitted that his client is in possession of the suit property having purchased the same and respondent no.8 should not be relegated again, which would result into another round of litigation. However, this Court is unable to help the purchaser-respondent no.8 since the proper and legal course was not followed by the courts below. Therefore, the only remedy now is to exercise power under Order 7 Rule 10 of the CPC and relegate the parties to proper court. Hence, I answer the question accordingly and pass the following order:

ORDER

1. Second Appeal No. 447/1998 is partly allowed.

2. Judgment and decree dated 10.01.1995 passed by Jt. Civil Judge Sr. Dn., Wardha in Reg. C. S. No.239/1992 and confirmed by judgment dated 12.06.1998 by 2nd Addl. District Judge, Wardha in Reg. C. A. No. 44/1995 is set aside and in its place following order is passed:

(i) In exercise of powers under Order 7 Rule 10 of the CPC, plaint in Reg. C. S. No.239/1992 is returned to the appellant-plaintiff for being filed in the appropriate Court/Cooperative Court within a period of eight weeks from today.

(ii) Registry of this Court shall return the plaint to the appellant by following the procedure as per Rule 10 (2) and also send the entire record and proceeding to the Cooperative Court, Nagpur.

(iii) Parties to the suit to appear before the Cooperative Court on 25.08.2014.

(iv) It is made clear that all the objections and the matters to be adjudicated by the Cooperative Court are left open for both the sides for being canvassed before the Cooperative Court including the point of jurisdiction on other facets.

(v) The Cooperative Court shall issue notices to those parties, who will not remain present on the appointed date.

3. No order as to costs.

Appeal partly allowed.