Status of injunction order given by lower court when jurisdiction court changes subsequently.
shabarinath gupta
(Querist) 11 August 2013
This query is : Resolved
our property is wrongly sold by our relatives with having any title on it to a 3rd party.we filed a suit in the Munsif court.we also got Perpetual injunction order from the same court.The suit is now pending in the court.Recently we made an amendment in our suit i.e.for cancellation of the registered sale deed.But the muncif court considering the value of the property it gave an order to us i.e to plaintiff,go to the district court as it is not come under its jurisdiction.Accordingly we submitted the suit in district court and it has got numbered and due for 1st hearing this month end but the descendents treating the injunction has got vacated and entering in to the plot.
Now our doubt is whether the Perpetual injunction order issued by Muncif court is in force or not.If it comes an end how we should prevent defendants not to come in to the property?
prabhakar singh
(Expert) 11 August 2013
Of what kind property is and in which state it is located.?
as party seeking cancellation is not a party to the deed no ad valorem court fees on consideration shown in deed is payable.
And incase it is agri property and in U.P.
then it can be valued on rent fixed,no market valuation required.
Accordingly check your court fees Act.
Devajyoti Barman
(Expert) 11 August 2013
The suit is merely returned for filing in proper court. The order so far passed is very much in effect and force.
shabarinath gupta
(Querist) 11 August 2013
it is a open plot. It is situated in Andhra pradesh
R.K Nanda
(Expert) 11 August 2013
injunction order is still in operation and valid.
prabhakar singh
(Expert) 11 August 2013
When a suit is returned by a court lacking pecuniary jurisdiction provisions of Rule 10 and 10A of the Order VII of the CPC apply to deal the return procedure.
In my view injunction or any interim order passed by court returning the plaint shall cease to have it's force from the date of order of return.
And plaintiff shall have to seek fresh injunction order from court where suit has to be presented a fresh.Only fresh summons on defendant would not be required.
Returning a plaint by a court lacking pecuniary jurisdiction to be presented in proper court does not amount to transfer of suit by an inferior court to it's superior court.A suit wrongly filed in superior court can order transfer of case to an inferior court competent to try the suit.But the two things are altogether different.
Hence interim orders passed in suit would cease to have any force w.e.f. date return is ordered.
prabhakar singh
(Expert) 11 August 2013
The following would be situation and true import of law derivable from provisions of order VII Rule 10 & 10A of C.P.C.:
(i) The suit which is instituted on the representation of the plaint in the competent court after its return by the Court which lacked the jurisdiction is a freshly instituted suit within the meaning of the provisions of the Code of Civil Procedure and shall be governed by the provision of Order VII Rule 10 and 10A. Such a suit will be tried de novo in accordance with the provisions of the Code.
(ii) Any proceedings taken up and orders made in the suit during its pendency before the court which lacked necessary jurisdiction come to an end as soon as the order for the return of the plaint is made by the said court.
(iii) If the plaintiff on the return of the suit consider it necessary that any interim protection granted to him under the orders of the Court which lacked jurisdiction should be continued, he must approach the competent Court with a fresh application for grant of such a relief and it will be for the said Court to consider the application on its merits.
(iv) The return of the plaint for want of jurisdiction whether pecuniary or territorial cannot be equated to the transfer of the suit or proceedings either by virtue of Section 24 CPC or owing to any other statutory change.
prabhakar singh
(Expert) 11 August 2013
FOR AFORESAID REASONS I DISAGREE WITH ALL OF YOU.
R.K Nanda
(Expert) 11 August 2013
unless district court vacate the stay order of muncif court, said stay order is valid.
prabhakar singh
(Expert) 11 August 2013
A misconceived idea you want to prevail.
In the case of Amar Chand Inani, Vs. Union of India 1973 (1) SCC 313,the S.C. held:
"We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper court and was presented in that court, the suit can be deemed to be instituted in the proper court only when the plaint was presented in that court. In the other words the suit instituted in the Trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court."
The Bombay High Court as back as in the year 1928 in the case of Hirachand Succaram Gandhy & Ors. Vs. G.I.P. By Co. AIR 1928 Bombay 421 had held that when the plaint is returned to be presented in a Court of competent jurisdiction, the suit is to be considered as instituted on the date of such presentation, and the suit thus presented cannot be said to be in continuation of the suit filed in a Court without jurisdiction.
In the case of Hanamanthappa & Anr. Vs. Chandrashekharappa & Ors. AIR 1997 SCC 1307 the contention that since the plaint has been filed with amended averments, the same should be treated to be a fresh one and not one after the representation to the to the proper court, the Apex Court repelled the contention by stating " Object of order VII Rule 10 CPC is that the plaintiff on return of the plaint, can either challenge in an appellate forum or represent to the Court having territorial jurisdiction to entertain the suit. In substance, it is a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of the Court fee as has been pointed by the High Court.
R.K Nanda
(Expert) 11 August 2013
do not thrust ur view on other experts.
prabhakar singh
(Expert) 11 August 2013
In the case of Nanikutty Amma Devaki Amma and Ors. Vs.Krishnan Kochunarayanan Nair & Ors. AIR 1978 Kerala 3, the Kerala High Court has also in the similar circumstances held that after the order of return of the plaint if any amendment is made by the plaintiff in the plaint and represents it, it is really a fresh plaint which the court has always power to receive.
prabhakar singh
(Expert) 11 August 2013
I am not thirsting rather showing how one can find my analogy correct.
Guest
(Expert) 11 August 2013
I am fully in agreement with the views of Shri Prabhakar Singh. There was even no need to cite any case law. Needless to emphasize, if a court is not competent to try a case, any injunction, if issued on that case by that court also becomes null & void and ineffective in character. Here even the court of Munsif itself has declared to be not competent to try the case.
A fresh injunction would therefore be needed from a competent court only unless the competent court ratifies the existing injunction. otherwise the plaintiff would be at a loss by keeping himself under misconsumption.
Guest
(Expert) 11 August 2013
You are welcome, Prabhakar ji.
shabarinath gupta
(Querist) 11 August 2013
still i have a doubt sir,
i.e.
According to the order of Munsif court we submitted our suit in the District court and it is numbered also.After it has got numbered the defendants entered into the suit property.
Please clear out, even in the above situation also does the perpetual injunction order previously issued by Munsif court is not valid.if not what immediate step we (plaint)should take?
Guest
(Expert) 11 August 2013
Naturally, his advocate has advised him about non-existence and ineffectiveness of the previous injunction after the case goes out of jurisdiction of the previous court and admitted in the other court.
Injunction was required to be taken simultaneously from the present court when the case came within its jurisdiction.
prabhakar singh
(Expert) 11 August 2013
Dhingra Ji is RIGHT!
The moment your suit was numbered in District court you should have applied a fresh for same injunction.
Do apply a fresh without delay now in the present court.
shabarinath gupta
(Querist) 11 August 2013
can i take what R.K Nanda sir said is as not correct?
prabhakar singh
(Expert) 11 August 2013
IT IS JUST INCORRECT TO UNDERSTAND THAT INJUNCTION ORDER BY THE COURT IS IN ANY WAY EFFECTIVE AFTER IT'S ORDER OF RETURN OF THE PLAINT.
R.K Nanda
(Expert) 11 August 2013
dear Gupta,
how much legal advice u want from experts free.
shabarinath gupta
(Querist) 12 August 2013
Thanks to all of you for your valuable contribution.
shabarinath gupta
(Querist) 12 August 2013
Dear Nanda sir,
as i was in confusion of different opinions i asked such thing.u misunderstood me.Since i am facing lot of problems from our suit defendants i asked suggestion from experts not because of the service is free.
shabarinath gupta
(Querist) 12 August 2013
as you said, today our advocate is going to apply for fresh injunction.how should i move to remove the iron sheet room which is done by the defendants after the plaint is returned.can i make request of removal in the application for new injunction.
please guide me on this
Guest
(Expert) 12 August 2013
Without asking for a relief in the present application for injunction, you would not be able to get any order to remove the structure, as you can expect only the orders for status quo. Removal of structure can only be possible after the order of the court.
Raj Kumar Makkad
(Expert) 13 August 2013
fresh injunction order is required to be obtained from the appellate court and thus the opinion of Mr, Singh and Mr, Dhingra ji is correct.
prabhakar singh
(Expert) 13 August 2013
SO GOOD COME ADVISES SOME TIME FROM INVALIDS TOO.!?
shabarinath gupta
(Querist) 20 August 2013
as all you advised my Advocate filed a fresh petition in the District court for injunction.But the district Judge returned the petition by writing on the petition as "How the petition is maintainable when the similar petition is pending and in which the status quo is granted vide I.A.No.____ in O.S.No.____ on the file of Prl Junior Civil Judge court."
Now can we think that old injunction is still valid and can we take any action on the defendants under contempt of the court?
Plz.guide
R.K Nanda
(Expert) 20 August 2013
yes, still valid as advised u earlier also.
u can take action against defendants under
contempt of court act.
prabhakar singh
(Expert) 20 August 2013
The effect of the order now passed on your application moved before District Judge is that the order initially passed stands revived provided application moved by you is not in your hand but on the file.You said he returned the application passing order'returned the petition by writing on the petition as "How the petition is maintainable when the similar petition is pending and in which the status quo is granted vide I.A.No.____ in O.S.No.____ on the file of Prl Junior Civil Judge court."'
sounds strange as that application even if in view of DJ was not maintainable it should become part of the file with his order passed.
prabhakar singh
(Expert) 20 August 2013
Complications would arise when there would be hearing on contempt on merit.
shabarinath gupta
(Querist) 22 August 2013
What our advocate should do now? The case is for hearing on 26th of this month.can we restrain the defendants with help of old injunction order?
