Ram Phal vs Ram Singh And Ohters on 28 August, 2025

Allahabad High Court

Ram Phal vs Ram Singh And Ohters on 28 August, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 

 
AFR
 
Reserved on : 22.08.2025
 
Delivered on : 28.08.2025
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
SECOND APPEAL No. - 2375 of 1982
 
Ram Phal
 
								 ...Appellant
 
Versus
 
Ram Singh and Others
 
							         ...Respondents
 

 
Counsel for Appellants		:	A.K. Gaur, M.K. Sharma
 
Counsel for  Respondents	:	Madnesh Prasad Singh, Pramod 						Kumar, Vinod Kumar
 
Court No. - 5
 
HONBLE SAURABH SHYAM SHAMSHERY, J.

1. Heard Sri A.K. Gaur and Sri W.H. Khan, learned Senior Advocates assisted by Sri M.K. Sharma, learned counsel for appellants and Sri Madnesh Prasad Singh, learned counsel for legal heirs of some respondents.

2. This is second appeal of the year 1982. During pendency of second appeal, number of respondents have died and some of legal heirs were already brought on record and rest of them brought on the date of hearing. Number of legal heirs have already been represented by their respective advocates, therefore, without waiting the fresh notice, this appeal was heard finally on the question of law framed when present appeal was admitted by an order dated 25.08.1982. For reference the said order is reproduced hereinafter :-

Admit. Issue notice.

The substantial question of law involved in the second appeal is whether the decision of a full Bench of this Court in Mst. Ananti Vs. Chhannu (AIR 1930 Alld. 193) that if the suit is cognizable by a Revenue Court and is filed in a Civil Court, the plaint cannot be returned for presentation before the proper court is still good law in view of the decision of the Supreme Court in Athmanathaswami Devasthanam Vs. K. Gopalaswami Aiyangar (AIR 1965 SC 338) and the amended provisions of order 7 Rule 10 C.P.C. and what order should be passed in the suit.

3. Heard counsel for parties and perused the record.

4. I have the benefit of a very elaborate judgment passed on same issue by a co-ordinate Bench of this Court in Bansraj And Others Vs. Moti And Others, Second Appeal No.545 of 1992, decided on 30.07.2019 and the relevant part thereof is mentioned hereinafter :-

38. The aforesaid issue again came up before this Court in Gulab and others vs. Jaggan Ram Singh and others11, where this Court held that an old Full Bench Decision reported in Mst. Ananti vs. Channu12 (to which reference has been made in the context of the authority next considered in this judgment) is no longer good law in view of the authority of the Supreme Court in Sri Athmanatha-swami Devasthanam (supra). It was held by this Court in Gulab and others (supra) that the jurisdiction can be challenged anywhere, at any stage, and once it is held that the Court has no jurisdiction, it could neither decree the suit or dismiss it. It was held by this Court in Gulab and others (supra) thus:

“4. I am of the opinion that in view of Athmanathaswami Devasthanam‘s case (supra) decided by the Supreme Court, the Full Bench case of Mst. Ananti was no more good law. It has been held in AIR 1954 SC 340Kiran Singh v. Chaman Paswan where an order was passed without jurisdiction it could be challenged anywhere at any stage. As the Courts below have given a finding that they have no jurisdiction to entertain the suit any further finding or decision given by them would be without jurisdiction. They could neither decree the suit nor dismiss it.

5. Under the circumstances I am bound to follow the law laid down by AIR 1965 SC 338 in case of Athmanathaswami (supra).

6. The learned counsel for the respondent argued that the case of that Athmanathaswami (supra) was considered by the learned single Judge in the case of Devi Dutt Sharma (1979 All LJ 1086) (supra). From the judgment it appears that the learned single Judge referred to that case in para 3 of the judgment but how that case was not applicable is not indicated in the judgment. Consequently I hold that the Courts below were not justified in dismissing the suit.”

39. This Court, however, in Lal Bahadur Singh and another vs. Bagesara and others13, went into the distinction between cases where the question as to lack of jurisdiction is raised and decided at the earliest, and those cases where parties go to trial completing the entire course, or may be in appeal where it is found that the Court had no jurisdiction to try the suit. This distinction appears to have its genesis in the Full Bench decision of this Court in Mst. Ananti vs. Channu (supra), where it was held that in cases where after trial of the suit on all issues, the Court also holds that it had no jurisdiction, the suit must be dismissed and the plaint not returned. In Lal Bahadur Singh and another (supra), the case arose out of an order of the Appellate Court where the Trial Court framed as many as eight issues in a suit for declaration that the plaintiffs were bhumidhars of the land, and the revenue entry in favour of the defendants was wrong. The Trial Court decided all issues and also held that the Civil Court had no jurisdiction to try the suit. The suit was dismissed. In appeal, the lower Appellate Court did not examine the findings on other issues, but merely dealt with the issue of jurisdiction. Expressing agreement that the suit was not triable by the Civil Court, the Appellate Court set aside the decree of dismissal, and substituted it by an order for the return of plaint for presentation to the proper Court. Two appeals, both by the plaintiffs and the defendants, were carried to this Court from the order for return of the plaint. It was in the context of the said facts that this Court in Lal Bahadur Singh and another (supra) held thus:

“6. The question that has been canvassed before me is about the form of the order that ought to be passed by the Court in such cases. No difficulty arises when an order for return of the plaint under Order 7, Rule 10, C.P.C., or of rejection of the plaint under Rule 11, is passed. The real difficulty arises in the other cases. According to Sri R.N. Singh, when once the Court enters upon adjudication of all the controversies of merit, the Court has no option left but to finally determine all these issues and if it finds that it has no jurisdiction in the matter, it must dismiss the suit instead of ordering return of the plaint for presentation to the proper Court. Sri Sankatha Rai, on the other hand, contended that once the Civil Court finds that it had no jurisdiction, it must stay its hands at once and should order return of the plaint without further venturing to decide any other issue or to express its opinion on merits. According to the following rule laid down in Athmanath Swami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338:–

“When the Court had no jurisdiction over the subject matter of the suit, it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.” He contended that return of the plaint was the only proper course for the Court.

7. This case was referred to by the learned single Judge who decided the case of Devi Datt Sharma (1979 All LJ 1086) (supra) also. According to the learned Judge where the Court, as a matter of caution, records all findings on issues touching merits of the controversy in addition to the issue of jurisdiction, the order has to be of return of plaint because the other findings in such a case have no legal effect. These are recorded only for facilitating the higher Courts and avoidance of a remand in case they come to a different conclusion on the question of jurisdiction. After briefly referring to the above Supreme Court decision, the learned Judge proceeded to consider an earlier Full Bench decision of this Court in Smt. Ananti v. Chhannu AIR 1930 All 193 and held that if after going to the trial of the suit on all the issues the Court ultimately holds that it had no jurisdiction in the matter, it must result in an order of dismissal of the suit. It may, however, be mentioned here that in Smt. Ananti‘s case, the controversy was raised in an altogether different manner and the facts were also quite different. There a suit had been filed in the Civil Court and after the written statement had been filed, the Munsif entertained a serious doubt as to whether the Civil Court could take cognizance of the suit. He, therefore, framed two questions and made a reference to the High Court. It was while answering the reference that the Full Bench had made the following observations which are also quoted by the learned Judge in his decision (1979 All LJ 1086).

“The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts, he will get his relief from the forum chosen. If he framed his suit in a manner not warranted by facts and goes for his relief to a Court which cannot grant him relief, on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper Court, for the plaint, as framed, would not justify the other kind of Court to grant him the relief. But we are told that although the plaintiff has chosen his forum rightly, the defendant, if he so wishes, may, merely by saying something in his defence-something the correctness of which he need not take the trouble to establish, oust the jurisdiction of the Court and compel the plaintiff to go to another Court.”

8. What has been decided by the Supreme Court in Devasthanam‘s case (AIR 1965 SC 338) (supra) is that while holding that the Court had no jurisdiction to decide the particular suit, no decision on merit on any point involved therein should be made. It, however, does not lay down that if the Court has no jurisdiction then it had no right to dismiss the suit and must necessarily direct return of the plaint for presentation to the proper Court. The view taken to the contrary in 1983 Rev. Dec. 185 : (AIR 1983 All 145), therefore, does not appear to be wholly correct. In every case, it has to be seen whether on the allegations made in the plaint the suit was not maintainable in the Civil Court if so, the plaint had to be returned. But if the question of jurisdiction depends on decision of other questions on merit, then it is not necessary that the Court should always return the plaint. The Court has a discretion either to dismiss the suit after recording a finding that it had no jurisdiction and may in appropriate cases also direct return of the plaint without dismissing the same. It will depend upon the facts of each case and the broad principles have been rightly laid down in the Full Bench decision inSmt. Ananti‘s case(supra). Applying the principles laid down therein to the facts of the present case, I find that the order passed by the Court below was eminently justified and it was not incumbent on the Court to have dismissed the suit. The lower appellate Court has rightly directed that the plaint should be returned for presentation to the proper Court after recording a finding that the Civil Court had no jurisdiction in the matter.”

(Emphasis by Court)

40. The point again arose before their Lordships of the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. vs. Shree Vallabh Glass Works Ltd14. The said decision arose on an Appeal by Special Leave from a Division Bench of the Bombay High Court in a summary suit brought for recovery of money on the original side. Dealing with the defendant’s plea as to lack of territorial jurisdiction with the Court at Bombay, the learned Single Judge held that the suit was maintainable at Bombay on reasoning given in the learned Judge’s judgment. On Letters Patent Appeal to the Division Bench, an Application seeking to amend the plaint appears to have been brought in order to give up some part of the cause of action, that was beyond the territorial jurisdiction of the Court at Bombay. The said Application was rejected and the appeal allowed dismissing the suit. On the plaintiff’s Appeal by Special Leave, it was held, thus, by their Lordships:

“7. …………. Even if there was any doubt in the mind of the Division Bench, the learned counsel for the plaintiff had made a request for allowing him to amend the plaint but such request was wrongly refused by the learned Division Bench. The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived to the conclusion that the Bombay Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper court and not to dismiss the suit. ……….”

(Emphasis by Court)

41. There is still another decision of this Court in Mattukki and Ors. vs. Rajwanti15, where again classification of cases into two categories was approved; one where the suit has been tried on all issues the entire way, one of these being about jurisdiction, which is not found with the Court, and the other category being of cases where the issue about jurisdiction is considered at the earliest stage, looking to the allegations in the plaint. This Court held falling back on the Full Bench decision in Mst. Ananti vs. Channu (supra) and distinguishing the decision of their Lordships in Sri Athmanatha-swami Devasthanam (supra), that suits where the entire course of trial has gone through, it would not be the proper course to order return of the plaint, but to dismiss the suit as done by the first Appellate Court. Of course, to those conclusions, has been added a further dimension that this categorization of cases would be applicable to those causes where the plea is based on lack of jurisdiction as to subject matter, and not where it relates to territorial or pecuniary jurisdiction. It was held in Mattukki and Ors. vs. Rajwanti (supra) thus:

“15. The present case falls in the second category where the first appellate court upon deciding an issue between the parties about their status which question had a direct bearing on the question of jurisdiction has found that the class of Courts in the civil court would not have Jurisdiction to entertain the suit. It was not the case where the territorial limits or the pecuniary limits or the class of the Court within civil court was involved. It was a case where cancellation of the Will deed at the instance of a plaintiff who was not recorded in the revenue records and had not filed any evidence or substantial evidence to prove an interest in the property that the civil court held that the class of civil courts had no jurisdiction because the plaintiffs interest and title was under a cloud and it required a declaration from the competent court. Therefore, under these circumstances the discretion was exercised by the civil court when the first appellate court dismissed the suit of the plaintiff on the issue of lack of jurisdiction and did not return the plaint for presentation before the competent court because even the plaint as it stood for cancellation of a Will deed could not be entertained by the revenue court.

16. The decision cited by Sri R. N. Singh in the case of Athmanathaswami Devasthanam (supra) relates to a case where the suit was filed for recovery of damages for use and occupation of the land. The respondent therein was given possession of the land by the previous trustees of the Devasthanam trust and he started claiming acquisition of the status of ryot under Section 3(15) of the Madras Estates Land Act and acquired permanent rights of occupancy under Section 6 of the said Act. In appeal the High Court disagreed with the trial court and found that the suit as presented could be instituted only in the revenue court and civil court had no jurisdiction to entertain the same and, therefore, it ordered the return of the plaint for presentation to the proper Court. The Hon’ble Supreme Court was considering such a dispute and held that when the Court has no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. The question that can be decided is only a question of jurisdiction and if it comes a conclusion that it had no jurisdiction over the matter it had to return the plaint which was on the plain averments made therein cognizable by another Court competent to entertain the suit.

17. The decisions cited on behalf of the respondents is with respect to the two circumstances when the Court has to return a plaint for presentation or exercise its discretion to dismiss the suit on the ground of having no jurisdiction. The present case is one of the second category where the question of jurisdiction depends upon the averments in the plaint and other questions on merit and the Court proceeded to decide the other issue relating to the claim of the plaintiff as not maintainable before the civil court due to reasons given therein and when the plaint as such could not be maintainable before the revenue court.

18. Once having decided the locus of the plaintiff Phekani in relation to the property and relationship of Gajadhar and Smt. Sugani it found that the suit for cancellation of the Will filed by the plaintiff was not maintainable before the civil court because the plaintiff first required a declaration of her interest which was possible only by the revenue courts. The first appellate court dismissed the suit in toto and did not order return of the plaint. It has, therefore, to be seen whether the plaint ought to have been returned under Order VII, Rule 10 of C.P.C. in the facts and circumstances or the discretion exercised by the first appellate court by dismissing the suit in toto without directing return of plaint is proper or not.

19. As has already been indicated above there are two categories of cases when a jurisdictional issue is involved and the Courts have to decide the same on the facts averred in the plaint. The discretion is only in the second category and in case the plaint allegations are such as falls in the second category where no issue of territorial limits or pecuniary limits or class of Courts within the civil courts is concerned the Court is free to exercise its discretion. Therefore when in the present case there was no issue of territorial limits or pecuniary limits or the class of Courts in the hierarchy of civil courts where the plaint could be maintainable the issue falls squarely where the Court has to consider the question of its jurisdiction on the averments in the plaint only after deciding the competence of the plaintiff to maintain the suit. This was a suit for cancellation of the Will deed by the plaintiff who was not recorded in the revenue records nor had filed any substantial evidence to indicate any interest in the property in question. Therefore, the plaintiff required to get a declaration of her title and remove the cloud over her relating to any right title or interest in the property in question. Hence, the plaint as it stood could not be returned since it would not be cognizable by the revenue court.”

42. The question has also been the subject matter of a decision by the Chhattisgarh High Court in Suryakant Gupta vs. B.L. Saraf and another16, where in unequivocal terms, the learned Judge has held that at any stage of the proceeding once it is held that the Court had no jurisdiction, the proper course is to make an order for return of the plaint. In the aforesaid decision, N.K. Agarwal, J. relied upon a Full Bench decision of the Himachal Pradesh High Court in Prithvi Raj Jhingta vs. Gopal Singh17. The decision of the Supreme Court in R.S.D.V. Finance Co. Pvt. Ltd. (supra) was also relied on by His Lordship. It was held in Suryakant Gupta (supra) thus:

“10. The Full Bench of the High Court of Himachal Pradesh in case of Prithvi Raj Jhingta v. Gopal Singh, [AIR 2007 Himachal Pradesh 11.] considering the amended provision of Order XIV has held, to eliminate delay and to ensure expeditious disposal of the suits, both at the stage of trial as well as at the appeal stage, the legislature decided to provide for a mechanism whereby, subject to all exception created under sub-rule (2), all issues, both of law and fact were required to be decided together and the suit had to be disposed of as a whole, of course based upon the findings of the Trial Court on all the issues, both of law and fact.

11. Order XTV of C.P.C. has to be read along with Order VII, Rule 10 of C.P.C. As per explanation of Order VII, Rule 10(I), the Court of Appeal or Revision may direct, after setting aside the decree passed in a suit, return of the plaint. Even if the Court had recorded findings on all issues including the issue of jurisdiction, proper course open for the Court is to return the plaint for its presentation to proper Court. Therefore, ratio of law laid down by the High Court of Himachal Pradesh inPrithvi Raj Jhingta‘s (supra) case is of no help to the respondents in the facts and circumstances of the present case. For the reasons mentioned hereinabove, in the considered opinion of this Court, the judgment and decree of the Trial Court is not sustainable in law. Therefore, the appeal is allowed. The judgment and decree impugned is set aside. The matter is remitted back to the Trial Court for return of plaint to the plaintiff in terms of provisions contained in Order VII, Rule 10 of C.P.C. Parties are directed to appear before the Trial Court on 2.5.2011. Record of the Trial Court shall be sent back forthwith.”

43. A consideration of all the authorities on this seemingly debatable point are preponderant that in a case where the Court at any stage of the proceeding finds that the suit is not triable by it, the proper order to make is one for return of the plaint under Order VII Rule 10 CPC, and not one of dismissal of the suit, or any kind of a decision on merits. The guidance of their Lordships of the Supreme Court, and as already said preponderant authority, certainly not in consensus, is that it does not matter whether the suit has gone through trial the whole way, or has reached the stage of appeal or second appeal. What is relevant is that lack of jurisdiction once determined at any stage, ought to lead to an order for return of the plaint with no determination on merits made. The other view which seems to be not largely subscribed is based on the Full Bench decision in Mst. Ananti vs. Channu (supra). It would be well to remember that the statutory context in which the Full Bench in Mst. Ananti vs. Channu (supra), decided way-back in 1930, was a differently phrased provision of the Code of Civil Procedure, much different from the way it is now worded after the Amendment Act of 1976. The most significant change that the 1976 Amendment has brought about is the addition of the explanation. The added explanation makes it explicit that the power to return can be exercised by virtue of the added explanation by the Court of appeal or revision, after setting aside the decree passed in the suit and by substituting it with an order for return of the plaint. The addition of the explanation brought about by CPC Amendment Act 104 of 1976 is of great significance. The purpose of an explanation is clarificatory. It is expressive of the legislative intent, where doubt has arisen in the application of a statute.

5. The Court also takes note of a judgment passed by Supreme Court in EXL Careers v. Frankfinn Aviation Services (P) Ltd., (2020) 12 SCC 667 : 2020 SCC OnLine SC 621 and its relevant paragraph Nos. 15 and 16 are reproduced hereinafter :-

15.Modern Construction [ONGC v. Modern Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] , referred to the consistent position in law by reference to Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. [Ramdutt Ramkissen Dass v. E.D. Sassoon & Co., 1929 SCC OnLine PC 3 : (1928-29) 56 IA 128 : AIR 1929 PC 103] , Amar Chand Inani v. Union of India [Amar Chand Inani v. Union of India, (1973) 1 SCC 115] , Hanamanthappa v. Chandrashekharappa [Hanamanthappa v. Chandrashekharappa, (1997) 9 SCC 688] , Harshad Chimanlal Modi (2) [Harshad Chimanlal Modi (2) v. DLF Universal Ltd., (2006) 1 SCC 364] and after also noticing Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502] , arrived at the conclusion as follows: (Modern Construction case [ONGC v. Modern Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] , SCC p. 654, para 17)

17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.

16. We find no contradiction in the law as laid down in Modern Construction [ONGC v. Modern Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] pronounced after consideration of the law and precedents requiring reconsideration in view of any conflict with Joginder Tuli [Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502] . Modern Construction [ONGC v. Modern Construction & Co., (2014) 1 SCC 648 : (2014) 1 SCC (Civ) 617] lays down the correct law. We answer the reference accordingly

6. In the aforesaid circumstances, question framed is answered in following terms that once a Court come to the conclusion that it has no jurisdiction to adjudicate the suit, the plaint has to be returned back and the said Court may not go into the other issues and if plaint is presented in the Competent Court, the suit will be decided De Novo by granting benefit of Article 14 of Limitation Act.

7. In the present case, it is not much under dispute that learned Trial Court has in a very specific manner has held that the said Court has no jurisdiction to adjudicate the suit and the Competent Court would be the Court of Revenue, however, after returning the said finding, learned Trial Court erroneously proceeded to decide other issues which were unwarranted and legally not permissible and dismissed the suit and appeal filed by plaintiff was also dismissed without taking note of legal error committed by learned Trial Court.

8. In the aforesaid circumstances, I accepts the argument raised by learned Senior Counsel for appellants and rejects the argument raised by learned counsel for respondents for some of legal heirs, since he was failed to show any judgment contrary of position of law on the issue as referred above.

9. In the aforesaid circumstances, the present Second Appeal is allowed and learned Trial Court is directed to return the plaint and it is now up to appellants to present it before the Competent Court.

(Saurabh Shyam Shamshery, J.)

August 28, 2025

P. Pandey