ONGC LTD Vs. MODERN CONSTRUCTION AND CO.

JUDGEMENT

(1.) These appeals have been preferred against the impugned judgment and order dated 10.12.2010 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application Nos.5036-5037 of 2010, reversing and setting aside the order dated 12.3.2010, passed by the Addl. District Judge, Fast Track Court, Surat in Misc. Civil Appeal Nos.29 and 30 of 2008 as well as the order dated 28.9.2007, passed in Special Execution Petition Nos.17 and 18 of 2007, passed by the 2nd Additional Senior Civil Judge, Surat.

(2.) Facts and circumstances giving rise to these appeals are that:

(3.) Shri Parag P. Tripathi, learned Senior counsel appearing for the appellant duly assisted by Shri Nishant Menon, Advocate has submitted that the plaints had initially been instituted at Mehsana Court which had no territorial jurisdiction to entertain these suits and even after being decreed, the High Court vide order dated 18.3.1997 had rightly set aside the judgment and decrees and asked the court at Mehsana to return the plaints to the respondent so that the plaintiff could present them before the court of competent territorial jurisdiction. Therefore, the order of the High Court has to be understood to have been passed in view of the provisions of Order VII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') and not a case of transfer of a suit from the Court at Mehsana to the Civil Court, Surat. Once the plaint is presented after being returned from the court having no jurisdiction, it is to be treated as a fresh suit and even if the trial was conducted earlier, as in the instant case, it had to be done de novo. The only protection could be to take advantage of the provisions of Section 14 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act') and the court fees paid earlier may be adjusted but by no stretch of imagination it can be held to be a continuation of the suit. Had it been so there would be no occasion for the High Court to set aside the judgment and decree of the civil court at Mehsana at such a belated stage. Thus the impugned judgment and order is liable to be set aside.