RETURN OF PLAINTTO THE PLAINTIF DUE TO LACK OF JURISDICTION
Querist :
Anonymous
(Querist) 13 June 2011
This query is : Resolved
Whatis the legal validity of one or all of the procedings which have taken place when the court which itself did not have jurisdiction to try a certain type of suits ?2)if plaint is returned to the plaintiff then can the defendant seek his reply to be returned to the defendant from the court which did not have jurisdiction?3)what is the remedy available to the defendant in such a situation to correct if he has commmitted some mistakes in his reply in the court with out jurisdiction?
prabhakar singh
(Expert) 13 June 2011
WHEN COURT LACKS JURISDICTION EVERY THING GONE BEFORE IT IS VOID.
THERE IS NO PARTICULAR ORDER /RULE IN C.P.C. TO TAKE BACK W.S. AS IS THERE FOR SUIT BUT ONE CAN APPLY U/S 151C.P.C. AS THERE IS NO BAR ALSO.
SUBJECT TO MAXIMUM PLEADING MADE IN ONE CASE CAN BE PUT BEFORE A PARTY IN A SUBSEQUENT CASE FOR CONFRONTING ADMISSION BUT SUCH THINGS ARE ALWAYS SUBJECT TO EXPLANATIONS THAT MAY BE PUT FORWARD.
Ravikant Soni
(Expert) 13 June 2011
I agree with prabhakar sir and add -
whenever plaintiff file suit in proper court the court competent shall follow de novo trial so dont be afraid.
PALNITKAR V.V.
(Expert) 13 June 2011
O.7 R.10. Return of plaint.
(1) Subject to the provisions of rule 10-A, the plaint shall
at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. The plaintiff or his pleader shall be informed of the date fixed for the return of the plaint."
R. 10A. Power of Court to fix a date of appearance in the
Court where plaint is to be filed after its return
(1) Where, in any suit, after the defendant has appeared, the
Court is of opinion that the plaint should be returned, it
shall, before doing so, intimate its decision to the
plaintiff.
(2) Where an intimation is given to the plaintiff under
sub-rule (1), the plaintiff may make an application to the
Court-
(a) specifying the Court in which he proposes to present the
plaint after its return,
(b) praying that the Court may fix a date for the appearance
of the parties in the said Court, and
(c) requesting that the notice of the date so fixed may be
given to him and to the defendant.
(3) Where an application is made by the plaintiff under
sub-rule (2), the Court shall, before returning the plaint and
notwithstanding that the order for return of plaint was made
by it on the ground that it has no jurisdiction to try the
suit,-
(a) fix a date for the appearance of the parties in the Court
in which the plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such
date for appearance.
(4) Where the notice of the date for appearances is given
under sub-rule (3),-
(a) it shall not be necessary for the Court in which the
plaint is presented after its return, to serve the defendant
with a summons for appearance in the suit, unless that Court,
for reasons to be recorded, otherwise direct, and
(b) the said notice shall be deemed to be a summons for the
appearance of the defendant in the Court in which the plaint
is presented on the date so fixed by the Court by which the
plaint was returned.
(5) Where the application made by the plaintiff under sub-rule
(2) is allowed by the Court, the plaintiff shall not be
entitled to appeal against the order returning the plaint.
The above provision would indicate that the plaintiff has to present the plaint in the proper court. If it is presented, the defendant can file his WS as it is. But if Plaint is not presented to proper court after its return, the WS can not be taken back from the court which returned the plaint.
