Defendant Also Has Right To File Application Seeking Return Of Plaint Under Order VII Rule 10 CPC For Want Of Court’s Jurisdiction: Karnataka HC
|The Karnataka High Court observed that the defendant also has a right to file an application seeking return of plaint under Order VII Rule 10 of the Civil Procedure Code (CPC), for want of jurisdiction of the court to try the suit.
The Court observed thus in a writ petition challenging the order of the Family Court by which it rejected the application under Order VII Rule 10 read with Section 151 of CPC, seeking return of plaint to be presented before an appropriate court.
A Single Bench of Justice M. Nagaprasanna remarked, “The present application in the case at hand under Order VII Rule 10 of the CPC, is filed by the defendant. Though the Court does not reject the application on the said ground of it being filed by the defendant, since the submission is made, I have deemed it appropriate to consider the said submission and answer it holding that the defendant also has a right to file an application seeking return of the plaint under Order VII Rule 10 of the CPC, for want of jurisdiction of a particular Court, to try the suit. The submission that it is the right of the plaintiff only, stands repelled.”
Advocate Mohammed Tahir appeared on behalf of the petitioners while Advocate H.A. Purushothama Prasanna appeared on behalf of the respondent.
Factual Background -
The petitioners were the parents-in-law of the respondent and their daughter got married to him, as a result of which a child was born. Their daughter died in 2021 and since then, it was the case that the minor child was in the custody of the petitioners. The respondent registered a petition before the Family Court seeking custody of the child, claiming that the child should be with him. The petitioners (defendants) filed an application seeking return of plaint and transfer of case to the court of appropriate jurisdiction. The concerned court rejected the application of the petitioners/defendants and being aggrieved by this, they were before the High Court.
The High Court in the above regard said, “Order VII Rule 10 of the CPC permits filing of an application for return of plaint. Sub-section (1) of Section 10 permits the concerned Court to return the plaint to be presented before the Court in which the suit should have been instituted. The procedure to be followed on returning the plaint is dealt with under sub-section (2) of Section 10. Order VII Rule 10 of the CPC touches upon the jurisdiction of a Court to have entertained a suit. The question of jurisdiction cuts at the root of the matter, and if the Court has no jurisdiction territorial or otherwise, to entertain a plaint, it cannot.”
The Court added that, who brings up the issue before the concerned court is immaterial, as Order VII Rule 10 of the CPC nowhere indicates that it is only to be filed by the plaintiff and not the defendant.
“What is brought to the notice of the Court qua jurisdiction is what is important and not who brings it. In a given case, a defendant/s has/have a right to file application or even raise an oral objection for raising grounds based on Order VII Rule 10 or Order VII Rule 11 of the CPC. The Court cannot direct the defendant to file a written statement for raising objections, if he does not desire to do so. But if he chooses to do so, it is an altogether a different circumstance, which is not the circumstance in the case at hand”, it emphasised.
The Court concluded that the concerned court ought to have answered the application under Order VII Rule 10 of CPC in favour of the petitioners/defendants, as the court before which the main petition was presented, did not have territorial jurisdiction.
Accordingly, the High Court allowed the writ petition, quashed the order of the Family Court, and directed the plaint/petition to be returned for it to be filed before the court having appropriate jurisdiction where the child was residing.
Cause Title- Samiulla Saheb & Anr. v. Mohammed Sameer