2015(7) ALL MR 288
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. V. GANGAPURWALA, J.
Chaya w/o. Anant Devkate Vs. Nil
Writ Petition No.3228 of 2013
17th April, 2013.
Petitioner Counsel: Shri KRISHNA K. KULKARNI
Civil Manual (1986), Chap.II, Art.12 - Defect in plaint - Registry of the court asking petitioner to add proper defendants and file documents - Petitioner ready to do so - Question of jurisdiction was not decided but court holding that there was no cause of action - Held, court ought to have considered the plaint in its totality after remand of objections raised by Registry and then frame issue of jurisdiction and cause of action. (Paras 7, 8)
JUDGMENT
JUDGMENT :- Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The order passed by the Court dismissing the suit is assailed in the present writ petition.
3. Shri Kulkarni, the learned counsel for the petitioner submits that upon examination of plaint the Registry of the Court has found the following defects.
i) No name of defendant is stated,
iii) The necessary clarification with regard to the jurisdiction of the Court is required to be obtained.
4. The suit is not registered. With these objections the suit is placed before the Court bearing Kaccha Register No. 534 dated 11.12.2012/18.12.2012. The Court upon hearing the counsel dismissed the suit itself. The learned counsel submits that if the Court found that there are some defects in the suit, then the plaintiff ought to have been given an opportunity to correct the said defects in view of Article 12 of Chapter II of the Civil Manual. According to the learned counsel, the Court failed to exercise the jurisdiction vested in it while passing the order. According to the learned counsel such a suit for declaration is maintainable. The petitioner would add the two sons and the person against whom the declaration is being claimed as parties to the suit. The plaintiff would also file the necessary documents and would also satisfy the Court about its jurisdiction. The Civil Court is competent to grant such a relief as claimed in the plaint. The Court has raised objection that the cause of action is not stated, but the cause of action is stated in the plaint.
5. With the assistance of learned counsel I have gone through the objections raised by the Registry and the order passed by the Court. The plaint is not yet admitted/registered.
6. After the Registry raises an objection upon examination of the plaint, the Registry is bound to place the same before the Court. If the defects are there, the Court may direct that necessary amendment should be made in the plaint. The same would be in consonance with Article 12 of Chapter II of the Civil Manual. The said provision reads as under :
1. ......
2. ......
12. After examination and registration, the plaint should be placed before the Judge for orders as to the issue of summons or otherwise. It will then be for the Judge to deal with the matter.
When the plaint is found to be defective in any material particular, or not to comply substantially with the requirements of Order VI, it would be competent to the Judge to direct that the necessary amendment should be made.
7. The learned counsel for the petitioner has shown his readiness to add the proper defendants and file the documents. The two objections which are raised by the Registry would be complied by the petitioner. As far as aspect of jurisdiction is concerned, the Court in the impugned order has nowhere held that it does not have jurisdiction. The Court has held that there is no cause of action. For the said purpose the Court would be required to consider the plaint in totality and thereafter arrive at a particular conclusion. It is trite that bundle of facts constitute cause of action and not a mere statement.
8. As far as jurisdiction is concerned, the Court has to frame an issue of jurisdiction and thereafter decide the suit. In the light of the above, the impugned order is quashed and set aside. The Court shall grant reasonable opportunity to the petitioner to correct the defects and thereafter consider the said objections raised by the Registry afresh.
Rule is accordingly made absolute, however, with no order as to costs.
9. The petitioner shall appear before the Court below on 30th April, 2013.