SHEELA ADHIKARI Vs. RABINDRA NATH ADHIKARI

JUDGEMENT

(1.) -Can a Court return a plaint under the provision Order 7 Rule 10 of the Code of Civil Procedure solely on the ground that some of the causes of action united in the plaint are not triable by it. for want of territorial jurisdiction, even though the other causes of action joined therein are within such jurisdiction? An affirmative answer to this question will result in dismissal of the appeal while a negative answer will require the appeal to be allowed. For the reasons stated, herein below, we answer the question in the negative.

(2.) Under Order 2, Rule 3(1) of the Code, a plaintiff can unite any number of causes of action against the same defendant. But since the Rules in the First Schedule of the Code cannot override or outweigh the Sections in the body of the Code, Rule 3(1) of Order 2 as to joinder of causes of action must be read subject to the provisions of Code relating to place of suing as provided in Sections 16-20 of the Code. This would have been the position in law even without the words "save as otherwise provided" with which Rule 3(1) begins and these words have only made it more explicit what would have irresistibly followed even otherwise without the aid of those words as a result of the overall operation of the provisions of Sections 16-20 of the Code. The result, therefore, is that though under the provisions of Order 2 Rule 3 any number of causes of action may be united in one suit against the same defendant, yet because of the provisions of Sections 16-20 of the Code, the Court in which such suit is filed must have territorial jurisdiction in respect of all such causes of action. No citation should be necessary for this too obvious a proposition, but yet reference, if need be, may be made among others, to a Division Bench Decision of the Allahabad High Court in Karam Singh us. Khuwar Sen (A.I.R. 1942 Allahabad 387 at 389) and also to a Division Bench Decision of the Madhya Pradesh High Court in Nava Samaj vs. Civil Judge (A.I.R. 1966 Madhya Pradesh 286 at 2S2).

(3.) But how should a court proceed when a suit is filed therein comprising several causes of action where the court has territorial jurisdiction in respect of sonic of them only and not others? On this point, there appears to be a cleavage of opinion among the different High Courts and even the same High Court has not always spoken in the same voice (vide, Mulla's Code of Civil Procedure -14th Edition -Vol. II, pages 1042-1043; A.I.R. Commentaries on Code of Civil Procedure -10th Edition -Vol. 3, pages 216-217). One view appears to be that the court should return the plaint so far it relates to causes of action which are beyond its jurisdiction and proceed with the suit on a certified copy of the plaint so far it relates to causes of action within its jurisdiction. With respect, we have not been able to persuade ourselves to agree with such curial vivisection, of the plaint as in our view under Order 7 Rule 10 of the Code, the plaint is to be returned either as a whole or not at all. The whole plaint in its entirety cannot obviously be returned by the Court when it comprises some causes of action within the jurisdiction of that Court, for the plaintiff has a right to a judgment on such causes of action as are otherwise cognizable by that Court. The expression "plaint" in Order 7 Rule 10 would, in our view, mean, the whole plaint and not a part of it and the Rule, in our opinion, does not authorise the Court to make a dichotomy of the plaint and then to retain one part while return the other part.