[Order 7 Rule 10 CPC] Preliminary Issue Of Territorial Jurisdiction Should Be Decided First Before Entertaining Any Amendment Application: J&K&L HC

While exercising its supervisory jurisdiction under Article 227 and setting aside the order of the Principal District Judge, the Jammu & Kashmir & Ladakh High Court clarified that when an application is pending under Order 7 Rule 10 and a preliminary issue of territorial jurisdiction is yet to be decided, the Court must decide such issues first, even before entertaining application of amendment regarding jurisdiction.

Noting that amendment application giving territorial jurisdiction may be allowed in case of an application pending under Order 7 Rule 11, the Single Judge Bench of Justice Wasim Sadiq Nargal observed that, “If the court reaches to a conclusion that the plaint in the suit as it exists, does not disclose the court to be having territorial jurisdiction, then the only option for that court is to return the plaint and the court would not have jurisdiction to even consider the application for amendment of the plaint and which amendment, if allowed, would disclose the plaint as having the necessary averments for the court to have jurisdiction to entertain the suit. Correspondingly, the court will have to return the suit under Order 7 Rule 10 along with the Application for Amendment to be presented before the proper court having jurisdiction in the case”.

Advocate Ateeb Kanth appeared for the Petitioner and Advocate M.A. Qayoom appeared for the Respondent

Facts of the case are that the Respondent had filed a suit against a family settlement deed executed by the Petitioner in the year 2012 regarding certain portion of lands which have been in possession of the Respondent by virtue of a consensus made between mother of the Respondent and the first Petitioner. Hence, the Respondent filed a suit before the Trial Court, which appointed one of the Petitioner as a Receiver to submit quarterly accounts of the property. Unsatisfied with the conduct of the Receiver, the Respondent filed an application under Order 40 Rule 4 & 5 of CPC and to appoint another Receiver. This application was dismissed by the Trial Court. Later, the Principal District Judge transferred the suit to Court of Sub Judge with a direction to examine the issue of territorial jurisdiction first. In the meanwhile, the Respondent sought to make amendment in the suit stating enhancement of a portion of land which could give territorial jurisdiction to the Court. The CJM decided the issue of territorial jurisdiction and held that the whole land falls outside the jurisdiction of the court. The Principal District Judge however set aside order passed by the CJM and held that application for amendment should have been decided first. Hence, present petition.

Upon perusal of the entire record, the Bench observed that issue of territorial jurisdiction must be decided first.

While noting that there is a fundamental difference between applications made under Order 7 Rule 11 and Order 7 Rule 10, the Bench held that when the court lacks territorial jurisdiction, it cannot even entertain an application for amendment of a plaint, which amendment would vest territorial jurisdiction in the court.

Therefore, while setting aside the order of the Principal Judge, the High Court remanded the case back to the Principal Judge with a direction to hear the suit on merits.

Cause Title: Abdul Aziz Bhat and Ors. v. Hilal Ahmad Bhat

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