Daejung Moparts Private Limited vs Premalatha Jagdish Bansal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 26.02.2024

PRONOUNCED ON : 15.03.2024

CORAM

THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

CRP.No.277 of 2024 and CMP.Nos.1291 & 4062 of 2024 Daejung Moparts Private Limited No.6, Sengundram Indl. Estate, Melrosapuram, Singaperumal Koil, Chengalpattu District – 603 204. Represented by its authorized signatory Mr.Ganesh ... Petitioner vs. 1.Premalatha Jagdish Bansal 2.Pooja Goel ... Respondents (Both represented by their power agent Mr.Manu Goel)

PRAYER : This civil revision petition has been filed under Article 227 of the Constitution of India to set aside the order dated 13.12.2023 passed in O.S.No.463 of 2022 on the file of the Principal District Court, Chengalpattu. For Petitioner ... Mr.M.G.Pranava Charan

For Respondents ... Mr.V.Raghavachari, Senior counsel for Mr.T.Balaji

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https://www.mhc.tn.gov.in/judis CRP.No.277 of 2024

ORDER

This civil revision petition has been filed to set aside the order dated

13.12.2023 passed in O.S.No.463 of 2022 on the file of the Principal

District Court, Chengalpattu.

2.The petitioner is the defendant and the respondents are the

plaintiffs. The plaintiffs have filed the suit in O.S.No.463 of 2022 on the

file of the District Court, Chengalpattu with the following prayers:

(a). To quit, vacate and deliver vacant possession (recovery of

possession) of the property for an extent of 1.77 Acres out of 3 Acres in

S.F.Nos.232 and 66 part (as per S.F.Nos. As reflected in FMB Sketch

232/1B Part, 2D Part, 2E Part, 66/2E Part, 66/2F Part) situated at

Sengundram Village, Chengalpattu Taluk, Kancheepuram District along

with the building covering an plinth area of 41135 sq.ft which is more fully

described as schedule property hereunder;

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(b).Direct the defendant to pay the sum of Rs.44,27,920/- towards

arrears of rent from January 2022 to May 2022;

(c).Direct the defendant to pay the sum of Rs.8,85,580/- towards

GST payment from January 2022 to May 2022;

(d).Direct the defendant to pay the sum of Rs.9,83,980/- towards

arrears of rent from June 2022 to July 2022, totaling to a sum of

Rs.19,67,960/-;

(e).Direct the defendant to pay the statutory payment of Rs.90,329/-

towards the GST arrear for the month of December 2021;

(f).Mandatory Injunction to direct the defendant to make the

statutory payment of Rs.7,87,184/0 towards the TDS arrears from October

2021 to May 2022;

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(g). Direct the defendant to pay the liquidated damages of

Rs.90,000/-per day from 05.07.2022 till 16.08.2022 towards use and

occupation of the schedule property totaling to Rs.38,70,000/-

(h).To direct the defendant to pay the liquidated damages of

Rs.90,000/- per day towards future use and occupation of the schedule

property from the date of plaint till the date of delivery of possession of the

suit schedule property by the defendants to the plaintiffs;

(i).For a permanent injunction and other reliefs.

The trial Court, on 13.12.2023 for non filing of the written statement

by the defendant, set exparte and posted for exparte evidence on

20.12.2023, which is under challenge.

3.The learned counsel appearing for the petitioner submitted that the

petitioner filed an application in I.A.No.6 of 2023 on 22.11.2022 for return

of the plaint under Order VII Rule 10 CPC on the ground that the Court

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has no jurisdiction. Further submitted that the learned Judge, without

considering the application seeking for return of plaint filed by the

petitioner in I.A.No.6 of 2023, has erred in setting exparte for non filing of

the written statement. The petitioner has clearly pointed out the lack of

jurisdiction on the part of the Court to entertain the suit and the Court has

to adjudicate upon the jurisdiction before forcing the petitioner for filing the

written statement and thus, pleaded to allow the civil revision petition.

4.To support his argument, the learned counsel appearing for the

petitioner relied upon the decisions of the Hon'ble Supreme Court in (i).

Saleem Bhai and Ors. Vs. State of Maharashtra and Ors reported in

MANU/SC/1185/2002, (ii). R.K.Roja Vs. U.S.Rayudu and Ors reported in

MANU/SC/0751/2016 (iii).the decision of the Rajasthan (JaiPur Bench)

High Court in Laxmi Narayan Sharma Vs. Rajeshree Khandewal and

Ors reported in MANU/RH/1368/2016 (iv).the decision of the Delhi High

court in Jagmohan Behl Vs. State Bank of Indore reported in

MANU/DE/2930/2017 (v).the decision of this Court in S.Murugan Vs.

J.Joseph in CRP.(NPD).Nos.3056 of 2021 batch cases.

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5.The learned counsel appearing for the respondents supported the

impugned order and contended that an application filed under Order VII

Rule 10 CPC can be maintained only by the plaintiffs and not by the

defendant. After the amendment to the Code of Civil Procedure in 2002, it

prescribed 30 days as the period for filing the written statement from the

date of service of summons. In this case, the petitioner/defendant received

summon and appeared from 12.10.2022 to 13.12.2023, but had not filed a

written statement. Therefore, the trial Court for non filing of written

statement set exparte. He can very well raise an objection regarding

jurisdiction in the written statement, if the defendant were to file an

application, he would be doing so at his peril. Because it would take

considerable time to dispose of such an application filed by the defendant.

However, the delay in disposal would not extend the period prescribed for

filing the written statement. Therefore, there is no illegality in the impugned

order and seeking to dismiss the civil revision petition.

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6.To support his argument, the learned counsel appearing for the

respondent relied upon the judgment of the Karnataka High Court in

M/s.Vasudeva Rao & Sons and Another Vs. Smt. Prathiba Devi reported

in ILR 2015 KAR 415 and another judgment of Karnataka High Court in

W.P.No.100173 of 2024.

7.I have considered the matter in the light of the submissions made

by the learned counsel on either side and perused the materials available on

record.

8.On perusal of the materials and records, the fact reveals that the

revision petitioner is the defendant and the respondents are the plaintiffs in

O.S.No.463 of 2022 on the file of the District Court, Chengalpattu. The

petitioner, after appearance, filed I.A.No.6 of 2023 for return of plaint

under Order VII Rule 10 CPC for want of jurisdiction on 22.11.2022. It is

noticed that the diary extract of the daily status of the Court reveals that

I.A.No.6 of 2023 is not decided by the Court as on date. The trial Court on

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13.12.2023, non filing of the written statement, the defendant called absent

set exparte. For better appreciation, the diary extracts runs as follows:

“Written statement not filed, defendant called absent. For exparte evidence by 20.12.2023.

IA.3/2022 C/w. Suit (IOE) IA.4,5,6/2022 C/W.suit by 20.12.2024.

Next purpose - Ex-Parte Evidence

Next hearing date – 20.12.2023”

It is now under challenge.

9.According to the petitioner, the trial Court, without deciding the

jurisdiction of the Court to entertain the suit, set exparte the defendant for

non filing of the written statement is unsustainable. The Court erred in not

considering the application seeking for return of plaint filed by the

petitioner in I.A.No.6 of 2023. The argument of the learned counsel for the

respondents is that the time limit for filing the written statement is 30 days

from the date of service of summons, instead of filing written statement, the

defendant raised an objection regarding jurisdiction and he filed an

application to that effect. Since the application is not disposed of, the delay

in disposal would not extend the period prescribed for filing the written

statement.

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10.The settled principle of law is that, if a question as to jurisdiction,

territorial or pecuniary, is raised at any stage of the suit, then it is the

bounden duty of the Court to decide the matter to short circuit litigation

and protect the parties from undue harassment of protracted and expensive

litigation where a question of lack of jurisdiction has been raised the Court

can decide the issue. It need not wait for filing of written statement. The

words 'at any stage of the suit' would include the stage prior to filing of

written statement. Therefore, without deciding the matter of jurisdiction set

exparte the defendant is unsustainable, therefore, it is liable to be set aside.

Accordingly, the impugned order is hereby set aside and the civil revision

petition is allowed. The trial Court is directed to dispose of the application

filed by the petitioner with regard to the jurisdiction in I.A.No.6 of 2023

within one month. No costs. Consequently, the connected miscellaneous

petitions are closed.

Index : Yes/No 15.03.2024 Internet : Yes/No sms To The Principal District Court, Chengalpattu. V.SIVAGNANAM ,J.

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sms

Pre-delivery Order made in CRP.No.277 of 2024 and CMP.Nos.1291 & 4062 of 2024

15.03.2024

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