DURGESH CHAURASIYA Vs. PRAKASH KUSHWAH

JUDGEMENT

(1.) Petitioner/plaintiff has preferred this petition under Article 227 of the Constitution of India challenging the order Annexure P/1 dated 11-9-2009 passed by 14th A.D.J. Gwalior in M. A. No. 12/09 and order Annexure P/2 passed by 10th Civil JLJdge Class-1 Gwalior in Civil Suit No. 2-A/09 dated 10-7-2009 rejecting the application filed by petitioner/plaintiff under section 151, Civil Procedure Code for referring to case to District JLJdge for transfer to the competent Court and instead passing order to return the plaint under Order 7, Rule 10, Civil Procedure Code.

(2.) Facts of the case in brief are that, petitioner/plaintiff has filed a suit for declaration and permanent injunction against respondent/defendant No. 1. After trial of suit it was found by trial Court that petitioner/plaintiff is owner of the suit but because he has not prayed for relief of possession suit was dismissed. Against the order of dismissal first appeal was filed by petitioner/plaintiff with an application under Order 6, Rule 17, Civil Procedure Code which was allowed by First Appellate Court and order of remand was passed. As per that order of remand petitioner/plaintiff valued the land for purpose of possession. Learned trial Court was not having pecuniary JLJrisdiction after revaluation. Hence, petitioner/plaintiff has filed an application under section 151, Civil Procedure Code for referring the matter to District JLJdge for transfer of the case to appropriate Court and that application was rejected. Against that order Writ petition 3229/09 was filed which was dismissed on the ground that order passed under Order 7, Rule 10, Civil Procedure Code is appealable under Order 43, Rule 1(a) of Civil Procedure Code. Petitioner/ plaintiff then preferred one appeal against order passed by 10th Civil JLJdge Class-1, Gwalior in Civil Suit No. 2-A/09 that Misc. Appeal No. 12/09 was dismissed. Resultantly, this petition is preferred.

(3.) It is contended by learned counsel on behalf of the petitioner/plaintiff that order passed by 10th Civil JLJdge Class-1 Gwalior in Civil Suit No. 2-A/09 and order passed by 14th A.D.J Gwalior in Misc Appeal No. 12/09 confirming the order passed by Civil JLJdge is to be set aside. As the order is against provision of section 15(3) of the M. P. Civil Courts Act, 1958. It is contended that case of Krishna Kumar Khandelwal vs. Mangal Prasad,2007 1 JabLJ 300 is distinguishable relying on which learned trial Court has returned the plaint under Order 7, Rule 10, Civil Procedure Code to petitioner/plaintiff as in the present case situation is altogether different. It is submitted that in the present case the evidence of both the parties is closed and trial is over only arguments are to be heard and final decision is to be rendered. If the plaint is returned to petitioner/plaintiff then it will result in a fresh trial ab initio. Hence prayed to set aside the order passed by both the Courts below and for issuing a proper direction to trial Court to refer the matter to District JLJdge for passing appropriate order under section 15 (3) of M. P. Civil Courts Act.