Civil Procedure Code. Order 7 Rule 10 & 10A. After return of plaint and its presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted afresh even if it stood concluded before the earlier court. Oriental Insurance Company Ltd vs Tejparas Associates and Exports Pvt Ltd overruled.
Supreme Court 5 August 2020.
M/s. EXL Careers and Anor vs Frankfinn Aviatin Services Pvt Ltd.
Civil Appeal 2904/2020
Decided on 5 August 2020
Justice R.F. Nariman
Justice Navin Sinha
Justice Indira Banerjee
Judgment link: https://main.sci.gov.in/supremecourt/2018/23730/23730_2018_34_1502_23302_Judgement_05-Aug-2020.pdf
Held: Para 2. The present appeal has been placed before us on a reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. vs. Modern Construction & Co., (2014) 1 SCC 648. The question of law we are required to answer is that if a plaint is returned under Order VII Rule 10 and 10A of the Code of Civil Procedure 1908, for presentation in the court in which it should have been instituted, whether the suit shall proceed de novo or will it continue from the stage where it was pending before the court at the time of returning of the plaint.
- Modern Construction, referred to the consistent position in law by reference to Ramdutt Ramkissen Dass vs. E.D. Sassoon & Co., Amar Chand Inani vs. The Union of India, Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688, Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder Tuli (supra), arrived at the conclusion as follows:
“17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”
Joginder Tuli was also noticed in Harshad Chimanlal Modi (II) but distinguished on its own facts.
- We find no contradiction in the law as laid down in Modern Construction pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli . Modern Construction lays down the correct law. We answer the reference accordingly.
- For all these reasons, we hold that Oriental Insurance Co. does not lay down the correct law and overrule the same.
Compiled by, S.Basavaraj, Daksha Legal
Daksha Legal 