Quashed¶31

Avinash Purshottam Shelke v. the Chief Officer and Another

Bombay HC12 Apr 2024WP/1660/2023

Case brief

AI extract

What is this about?

Jurisdiction ouster without hearing violates natural justice; trial Court cannot direct transfer via Principal District Judge absent Section 24 CPC application; remedy under Order VII Rule 10 CPC is return of plaint; preliminary issue on jurisdiction may be framed; Sections 20(A) and 41(ha) Specific Relief Act; RCS No. 441 of 2022; Civil Judge Senior Division Rahata; WRIT PETITION NO. 1660 OF 2023; orders below Exhibit 1 quashed; Shailesh P. Brahme, J.; Aurangabad Bench.

What did the court decide?

Both impugned orders dated 09.12.2022 and 19.01.2023 passed below Exhibit 1 in RCS No. 441 of 2022 by the Civil Judge Senior Division, Rahata, quashed and set aside; writ petition disposed of with no costs. ¶31

Avinash Purshottam Shelke Vs the Chief Officer and Another — Specific Performance | Bombay HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the impugned orders dated 09.12.2022 and 19.01.2023 were vitiated by violation of the principles of natural justice, having been passed without affording the parties an opportunity of hearing before recording that the Court's jurisdiction was ousted. +1 more

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Court's answer

Both the impugned orders were passed without hearing the parties to the litigation, and the violation of the principles of natural justice is apparent on record.

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Ratio / Principle

Due procedure was not followed and no opportunity of hearing was given to the petitioner; it is open to the Court to frame a preliminary issue and address the question of jurisdiction accordingly.

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Key takeaways

Where the Court proceeds on want of jurisdiction, the recourse open under Order VII Rule 10 CPC is to return the plaint to the plaintiff for presentation before the appropriate forum having jurisdiction.ratio¶27
No application under Section 24 had been made to the Principal District Judge for transfer of the proceedings; therefore both the impugned orders suffer from arbitrariness.ratio¶29
Both the impugned orders passed below Exhibit 1 in RCS No. 441 of 2022 are quashed and set aside, and the writ petition is disposed of with no order as to costs.

Detailed headnote1 paragraphs

Bombay High Court (Bench at Aurangabad), Shailesh P. Brahme, J.: Writ petition allowed in effect by quashing and setting aside two orders dated 09.12.2022 and 19.01.2023 passed below Exhibit 1 in RCS No. 441 of 2022 by the Civil Judge Senior Division, Rahata, whereby the trial Court recorded that its jurisdiction was ousted (suit allegedly falling under Sections 20(A) and 41(ha) of the Specific Relief Act as pertaining to an infrastructural project) and solicited transfer orders from the Principal District Judge, Ahmednagar. Held: the orders were passed without hearing the parties, violating the principles of natural justice; due procedure requires that a preliminary issue on jurisdiction be framed and addressed; no application under Section 24 CPC lay before the Principal District Judge, so the transfer route was impermissible, the proper recourse under Order VII Rule 10 CPC being return of the plaint; the impugned orders were therefore arbitrary. Writ petition disposed of; no costs.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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917 WRIT PETITION NO. 1660 OF 2023

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AVINASH PURSHOTTAM SHELKE VERSUS

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THE CHIEF OFFICER AND ANOTHER

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Advocate for Petitioner : Mr. Kulkarni Sanket S. Advocate for Respondent No. 1 : Mr. Shubham S. Kote h/f. Mr. Hon Ashwin Vinayak

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CORAM : SHAILESH P. BRAHME, J. DATE : 12 APRIL 2024

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PER COURT :

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Heard learned counsel Mr. Kulkarni for the petitioner

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and learned counsel Mr. Kote holding for respondent no. 1.

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Learned counsel for respondent no. 2 is absent.

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Petitioner who is original plaintiff is aggrieved by the manner in which trial Court proceeded to pass orders on 09.12.2022 and 19.01.2023 below exhibit 1 of RCS No. 441 of 2022. Petitioner has filed suit for perpetual injunction and in alternative for compensation against the respondents before Civil Judge Senior Division, Rahata.

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Petitioner claims that he is the owner of the subject

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matter and respondent no. 1 has proposed to construct road by encroaching upon the subject matter. Respondent no. 1 has contested the matter by filing say cum written statement. Application 5 was filed for temporary injunction.

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On 09.12.2022, learned trial Judge passed order below exhibit 1 stating that the Court did not have jurisdiction as controversy pertaining to infrastructural project. It was opined that matter needs to be transferred to Civil Judge Senior Division, Ahmednagar by soliciting orders from learned Principal District Judge, Ahmednagar. Thereafter, on 19.01.2023 another order was passed recording that suit falls under Section 20 (A) and 41 (ha) of the Specific Relief Act and the jurisdiction of the Court was ousted and direction from learned Principal District Judge were solicited. Being aggrieved by both orders, present petition is filed.

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Learned counsel Mr. S.S. Kulkarni for the petitioner submits that both the orders are against principles of natural justice. Due procedure of law was not followed. He would point out that unless issue is framed and opportunity is given to the petitioner, it would not be open to record that jurisdiction of the

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Court is ousted. He would make submissions on the basis of

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provisions Order VII Rule 10 of the Code of Civil Code as well as Section 24 of the CPC.

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Learned counsel for respondent no. 1 supports impugned order. According to him, learned Judge is justified in seeking appropriate orders from the Principal District Judge, Ahmednagar, for transferring the suit. In view of the statutory bar in the amended provisions of specific relief Act, the suit is not entertainable.

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Both the impugned orders do not reflect that parties to the litigation were heard. Violation of principles of natural justice is apparent on record.

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It is not the request of the respondents that the Civil Court lacks jurisdiction to entertain the suit. Learned counsel for the petitioner is right in contending that due procedure has not been followed. No opportunity of hearing was given to him. It is open for the Court to frame preliminary issue and the issue of jurisdiction can be addressed.

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The purport of impugned orders would be transferring

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of the proceedings. In view of provisions of Order VII Rule 10 of

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the CPC, the recourse is open to the Court to return plaint to the plaintiff for presenting it before the appropriate forum having jurisdiction.

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I do not find that any application is made under

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Section 24 to the Principal District Judge for transfer of the proceedings. I am of the considered view, that both the impugned orders suffers from arbitrariness.

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Both the impugned orders passed by learned Civil Judge Senior Division, Rahata, below exhibit 1 in RCS No. 441 of 2022 are quashed and set aside.

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Writ Petition is disposed of. No costs.

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[ SHAILESH P. BRAHME, J. ]

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Thakur-Chauhan/-

Avinash Purshottam Shelke v. the Chief Officer and Another

Case brief

What is this about?

What did the court decide?

Avinash Purshottam Shelke v. the Chief Officer and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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