Dismissed

M/S.Mars Gas Services v. Bombay Gas Services

Bombay HC5 Apr 2007CAA/1181/2006

Case brief

AI extract

What is this about?

In special civil appeal proceedings, the High Court rejected the applicant's prayer for a direct transfer order, holding that under Order 7 Rule 10-B CPC, the appellate court cannot transfer proceedings but may only direct filing of the plaint in the proper court subject to limitation laws.

What did the court decide?

Application for direct transfer of proceedings is rejected as misconceived.

M/S.Mars Gas Services Vs Bombay Gas Services — Civil Procedure and Limitation | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 CIVIL APPLICATION NO.1181 OF 2006
 IN

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 APPEAL FROM ORDER NO.354 OF 2001

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 M/s.Mars Gas Services .. Applicants
 versus
 Bombay Gas Services .. Respondents

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 ...
 Mr.Dundana B. Patil for the applicants

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 CORAM : D.G. KARNIK, J

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 DATED : 5th April 2007.

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 P.C.:

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 1. Heard learned counsel for the applicant.

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 2. This application is made by the applicant
 for transfer of the proceedings of Special Civil Suit
 no.2108 of 1996 from the Court of Civil Judge, Sr.
 Division, Kalyan to this Court.

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 3. The applicant had filed a suit bearing
 Special Civil Suit no. 2108 of 1996 against the
 respondent for recovery of Rs.2,92,000/-. The
 respondent contested the suit on merits as well as on
 the ground that the Court of Civil Judge, Sr.

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 Division, Kalyan had no jurisdiction to entertain and
 try the suit. After considering the evidence adduced
 by the parties, the trial court held that it (Court
 of Civil Judge, Sr.Division, Kalyan) had no
 jurisdiction to entertain and try the suit and
 directed that the plaint be returned to the applicant
 for presentation to proper court. That order was
 challenged by the applicant by filing an appeal
 bearing AO no.354 of 2001. By an order dated 13th
 October 2006, this Court dismissed the appeal. By
 this application the applicant prays for an order of
 transfer of the suit.

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 4. In my view, the application is totally
 misconceived. The applicant could have made an
 application under Order 7 Rule 10-A of the Code of
 Civil Procedure before the trial court when the trial
 court ordered return of the plaint. Learned counsel
 for the applicant however submits that the power can
 be exercised by this court under Rule 10-B of Order 7
 of the Code of Civil Procedure.

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 5. Rule 10, 10A and 10B of the Code of Civil
 Procedure read as under:

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10. Return of plaint (1) Subject to
 the provisions of rule 10-A, the plaint
 shall at any stage of the suit be returned
 to be presented to the Court in which the
 suit should have been instituted.

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(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.

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10-A Power of Court to fix a date of
appearance in the Court where plaint is to
be filed after its return (1) Where, in
 any suit, after the defendant has
 appeared, the Court is of opinion that the
 plaint should be returned, it shall,
 before doing so, intimate its decision to
 the plaintiff.

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(2) Where an intimation is given to
 the plaintiff under sub-rule (1), the
 plaintiff may make an application to the
 Court -

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 (a) specifying the Court in which he
 proposes to present the plaint after its
 return

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 (b) praying that the Court may fix a
 date for the appearance of the parties in
 the said Court, and

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 (c) requesting that the notice of the
 date so fixed may be given to him and to
 the defendant.

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(3) Where an application is made by
 the plaintiff under sub-ule (2), the Court
 shall, before returning the plaint and
 notwithstanding that the order for return

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 of plaint was made by it on the ground
 that it has no jurisdiction to try the
 suit -

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 (a) fix a date for the appearance of
 the parties in the Court in which the
 plaint is proposed to be presented, and

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 (b) give to the plaintiff and to the
 defendant notice of such date for
 appearance.

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(4) Where the notice of the date for
 appearance is given under sub-rule (3) -

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 (a) it shall not be necessary for the
 Court in which the plaint is presented
 after its return, to serve the defendant
 with a summons for appearance in the suit,
 unless that Court, for reasons to be
 recorded, otherwise directs, and

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 (b) the said notice shall be deemed to
 be a summons for the appearance of the
 defendant in the Court in which the plaint
 is presented on the date so fixed by the
 Court by which the plaint was returned.

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(5) Where the application made by the
 plaintiff under sub-rule (2) is allowed by
 the Court, the plaintiff shall not be
 entitled to appeal against the order
 returning the plaint.

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10-B Power of appellate Court to
transfer suit to the proper Court - (1)
 Where, on an appeal against an order for
 the return of plaint, the Court hearing
 the appeal confirms such order, the Court
 of appeal may, if the plaintiff by an
 application so desired, while returning
 the plaint, direct plaintiff to file the
 plaint, subject to the provisions of the
 Limitation Act, 1963 (36 of 1963), in the
 Court in which the suit should have been

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 instituted, (whether such Court is within
 or without the State in which the Court
 hearing the appeal is situated), and fix a
 date for the appearance of the parties in
 the Court in which the plaint is directed
 to be filed and when the date is so fixed
 it shall not be necessary for the Court in
 which the plaint is filed to serve the
 defendant with the summons for appearance
 in the suit, unless that Court in which
 the plaint is filed, for reasons to be
 recorded, otherwise directs.

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 (2) The direction made by the Court
 under sub-rule (1) shall be without any
 prejudice to the rights of the parties to
 question the jurisdiction of the Court, in
 which the plaint is filed, to try the
 suit.

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 6. Under Rule 10-B of Order 7 the appellate
 court may, on an application by the plaintiff may
 direct him to file the plaint, subject to law of
 limitation, in the Court in which the suit should
 have been instituted and fix a date for appearance.
 There is no power in the appeal court for directly
 transferring the proceedings from the trial court to
 any other court. It is for the plaintiff to apply
 for taking back the plaint and file it in appropriate
 court and request the appellate court to fix the date
 for appearance of the parties. The present
 application made for an order directly transferring
 the proceedings from the Court of Civil Judge, Sr.
 Division to this court and that too on an application
 made after the appeal is finally decided is totally

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 misconceived and is accordingly rejected.

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 (D.G. KARNIK, J)

M/S.Mars Gas Services v. Bombay Gas Services

Case brief

What is this about?

What did the court decide?

M/S.Mars Gas Services v. Bombay Gas Services

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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