Allowed

Uco Bank v. Rajesh Thakur

Himachal Pradesh HC1 Dec 2023CMPMO/629/2023

Case brief

AI extract

What is this about?

The High Court, under Article 227, set aside the subordinate court's dismissal of an application to transfer a suit. The High Court held that since the transfer was based on pecuniary jurisdiction without adjudicating territorial jurisdiction, the suit must be transferred to the court with territorial jurisdiction to avoid hardship from a de novo trial.

What did the court decide?

The order dismissing the application for transfer/return of plaint is set aside. The trial court is directed to transfer the suit record to the Senior Civil Judge, Palampur.

Uco Bank Vs Rajesh Thakur — Property and Title | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 629 of 2023 Decided on: 01.12.2023 UCO Bank …Petitioner Versus Rajesh Thakur …Respondent Coram:

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Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting?¹^No.

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For the Petitioner : Mr. Sanjay Dalmia, Advocate.

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For the Respondent : None.

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Tarlok Singh Chauhan, Judge (Oral)

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This petition under Article 227 of the Constitution of India read with Section 24 CPC is directed against the order dated 09.10.2023, passed by the learned Senior Civil Judge, Shimla, District Shimla in CMA No. 1748 of 2023, titled as Rajesh Thakur vs. UCO Bank, whereby the application filed by the petitioner-plaintiff for transferring of the case/return of the plaint to the Court having jurisdiction to decide the case has been dismissed.

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The brief facts of the case are that the petitionerplaintiff filed a suit for recovery of Rs. 41,79,875/- before this Court which was registered as Civil Suit No. 51/2010. However, since the pecuniary jurisdiction to try the suit was subsequently

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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conferred to the Court of Civil Judge (Senior Division), this suit was accordingly transferred to the Court of Civil Judge (Senior Division), Shimla vide order dated 14.12.2022, ostensibly for the reasons that probably it was that Court which has the jurisdiction.

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However, it needs to be emphasized that there was no adjudication whatsoever regarding the place of cause of action or the place of jurisdiction of the Court trying the suit and it was transferred simplicitor. When the petitioner-plaintiff noticed that the Court at Shimla had no jurisdiction to try the suit as the cause of action has arisen in favour of the plaintiff and against the defendant at Palampur, it filed an application for transferring the suit to the said Court. However, the learned Trial Court dismissed the application by according the following reasons:-

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According to Order VII Rule 10 CPC a Plaint can be returned to a court of competent jurisdiction at any stage of the case if there is a defect in the jurisdiction. Whereas, Section 24(5) empowers the Ld. District Court and Hon'ble High Court to transfer any case due to lack of jurisdiction. According to Section 24(5), a suit or proceeding may be transferred under this Section from a Court which has no jurisdiction to try it. The Hon'ble High Court and Ld. District Court has this power to transfer any suit or proceeding before a subordinate court lacking jurisdiction to a court with competent jurisdiction. If a plaint is returned under Order VII Rule 10 and 10-A of CPC, for

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presentation in the court in which it should have been instituted, the plaint is to be considered as a fresh plaint and the trial is to be conducted denovo. This can be stated to be a natural consequence of the return of plaint. However, the present case cannot be stated to have been wrongly instituted because it was initially instituted in the Hon'ble High Court of HP which was having jurisdiction to try and entertain present suit. Further, the case was received by way of transfer to this court on enhancement of the pecuniary jurisdiction of this court as has already been mentioned. Even, the perusal of the case file shows that much progress has been made in the present case and the case was fixed for evidence of the defendant when it was received by way of transfer from the Hon'ble High Court of HP. That being so, in case of return of the plaint at this stage, it will tantamount to hardship to the parties who were in litigation since long if they will have to face the trial de novo. Therefore, the present application is dismissed without any order as to costs. The application stands disposed of. Be tagged after due completion and registration to be claimed as contested CMA.

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To say the least, the findings recorded by the learned Trial Court are not at all sustainable and are rather perverse. The parties were ad idem that the cause of action in favour of the petitioner had accrued at Palampur and it was only on account of pecuniary jurisdiction prevalent at the relevant time that the suit had to be filed before the High Court and not because of territorial jurisdiction.

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What the Court below was required to see, was the cause of action and was not to be un-necessarily influenced by the suit having transferred by this Court by way of judicial order to the Court of learned Civil Judge (Senior Division), Shimla, more especially, when there was no adjudication on the question of territorial jurisdiction and the said Court otherwise lacked jurisdiction.

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If that was not enough, this matter could not have been made contentious and adversarial for no rhyme or reason for the simple question is that the Court either has the territorial jurisdiction or lacks the same. Once the Courts at Shimla lacks the territorial jurisdiction to try and adjudicate the suit, then in those circumstances, the learned Trial Court had no option but to have allowed the petition filed by the petitioner-Bank and transferred the suit to the Court of having territorial jurisdiction i.e. Senior Civil Judge, Palampur.

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In view of the aforesaid discussion, the order dated 09.10.2023, passed by the learned Senior Civil Judge, Shimla, is not at all sustainable in the eyes of law and the same is accordingly set aside. The learned Senior Civil Judge is directed to transfer the entire record of the suit to the Court of learned Senior Civil Judge, Palampur, forthwith.

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The petition stands disposed of in the aforesaid

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terms, so also pending applications, if any. Parties are left to bear their own costs.

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(Tarlok Singh Chauhan) Judge

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1^st December, 2023 (sanjeev)

Uco Bank v. Rajesh Thakur

Case brief

What is this about?

What did the court decide?

Uco Bank v. Rajesh Thakur

Case brief

What is this about?

What did the court decide?

What the court decided

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