IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Date of Reserve: January 13, 2008

Date of Order: January 20, 2009

CS(OS) 1565/2007

Sunil Dutt and Anr. ...Plaintiffs

Through: Mr. Abhay Kushwaha, Mr. Abhigya Kushwaha, Mr. Dhruv Kumar
and Ms. Vandana Sharma, Advocates

Versus

Bhag Singh ...Defendant

Through: Mr. Mohd. Abid, Advocate

JUSTICE SHIV NARAYAN DHINGRA

ORDER

1. This suit was filed before the learned Civil Judge. After the trial was over
and the case was at the stage of arguments, learned Civil Judge found that
the statement of one of the witnesses showed that the value of the suit
property was Rs.30 lac. In view of this statement of the witness, the Civil
Judge came to conclusion that the matter was beyond pecuniary jurisdiction
of the Civil Judge, who could try the suits only up to pecuniary jurisdiction
of Rs.3 lac and he, therefore, sent the case to the learned District Judge for
forwarding the same to this Court since this Court had original jurisdiction
beyond Rs.20 lacs. The case was received by this Court through learned
District Judge and was renumbered and registered.

2. After the case was registered, counsel for the defendant stated that as the
plaint has been returned under Order 7 Rule 10 CPC, therefore, this Court
should start de novo trial and the defendant should be permitted to file fresh
written statement. This contention was opposed by the counsel for the
plaintiff and arguments have been heard on this issue.

3. A perusal of record would show that the plaint was not returned in this
case under Order 7 Rule 10 CPC. A plaint can be returned by the Court
when it is presented and the Court finds that the subject matter was beyond
the jurisdiction of the Court or that the Court had no territorial jurisdiction or
pecuniary jurisdiction. A plaint can be returned on an application of either of
the parties with the directions to be presented before the concerned court. In
this case, it was a suo motto move of the Court below to send the case to
District Judge after it came on record that the value of the property was
Rs.30 lacs. The Court requested District Judge that the matter be sent to this
Court. When the matter reached this Court, this Court could have given
directions that the matter be sent back to the Civil Judge and instead of
transferring the matter; Civil Judge should return the plaint. This has not
been done rather the matter was entertained by this Court and registered as a
suit of this Court.

4. This Court, under Section 24 of CPC, has powers to call any suit from the
lower Court to itself. In a way, this Court exercised powers under Section 24
whereby this Court withdrew the suit from the Civil Court and entertained
the same. It is not a case of return of plaint.

5. I, therefore, consider that the defendant has no right to ask for de novo
trial and also has no right to file fresh written statement. Even otherwise, the
mandate of law is very clear that a judgment or an order can be set aside on
the ground of lack of pecuniary jurisdiction only if it has resulted into a
failure or miscarriage of justice. In this case, the stage of the suit is of final
arguments. Evidence of both parties has already been recorded and no
prejudice would be caused to the defendants if the suit is continued at the
level it was received. In my view, the trial of this case has to be proceeded
from the stage at which it was received in this Court.

6. List this suit for arguments and disposal on 30th March 2009.

Sd/-
SHIV NARAYAN DHINGRA J.