1. This order will dispose of Civil Revisions Nos. 1989 and 1990 of 1989. The facts for the purpose of this order are taken from Civil Revision No. 1990 of 1989.
2. The petitioners through the present revision petition have challenged the order dated 8-2-1988 passed by Sub Judge 1st Class, Muktsar who while holding that the said Court has got no jurisdiction to entertain and try the suit dismissed the application under order 39 rules 1 & 2 cpc filed by the plaintiffs-petitioners and the orders of the Lower Appellate Court dated 9-6-1989 wherein it is held that no appeal lies against the orders of trial Court returning the plaint.
3. The admitted facts of the case are that the plaintiffs-petitioners preferred a suit before the trial Court challenging the order dated 23-4-1987 passed by respondent No. 2 i.e. Superintending Canal Officer, Ferozpur Canal Circle, Forezepur Cantt. under the Northern India Canal and Drainage Act 1873. Along with the suit an application under Order 39 Rules 1 and 2 read with section 151 CPC and application under Section 80(2) CPC were also filed. The trial Court granted permission to the plaintiffs-petitioners to file the suit without serving advance notice under Section 80 CPC and also granted ad interim injunction. However, after filing of the written statement by the Defendants/ Respondents 3 and 4 the pleas of jurisdiction, dismissal of writ petition by this Court on 17-8-1987 filed by plaintiff-petitioners against the order impugned before the Trial Court etc. were taken.
4. After examining the rival contention of the parties the trial Court came to the conclusion that in view of the provisions of the Northern India Canal and Drainage Act, 1873 particularly Section 30(g) read with Section 68 of the said Act, jurisdiction of the Civil Court was barred. However, it also dismissed the application of the plaintiffs-petitioners for temporary injunction on merit vide order dated 8-2-1988. On appeal preferred by the plaintiffs-petitioners, the Lower Appellate Court vide order dated 9-6-1989 dismissed the appeal of the petitioners on the plea that the order of the trial Court, whereby the plaint was ordered to be returned was not appeal able and since the plaint was returned so the order passed by the trial Court dismissing the application under order 39 rules 1 & 2 c.p.c, was non-existent. Against both the orders of the trial Court as well as of the Lower Appellate Court, the plaintiff-petitioners are before this Court.
5. I have heard the counsel for the parties and perused the case file. I am of the considered view that viewing the case of the plaintiffs-petitioners from any angle, they are bound to fail. No doubt both the trial Court as well as the Lower Appellate Court have taken view contrary to law, but that is not going to improve the case of the plaintiffs-petitioners.
6. The very fact that the plaintiff-petitioners challenged the orders of the authorities passed under the Northern India Canal and Drainage Act, 1873, in Civil Suit is contrary to law inasmuch as the jurisdiction of the Civil Court is barred under Section 30(g) read with Section 68 of the Act (supra) which are reproduced as under:
"30(g) Bar of jurisdiction of the Civil Court -- Notwithstanding anything contained in this Act or any other law for the time being in force no civil court shall have jurisdiction to entertain or decide any question relating to matters falling under Sections 30-A to 30 F.F.)"
"68(6) The Superintending Canal Officer, within whose jurisdiction the water course is situated may suo motu or on an application made in this behalf by an aggrieved person, revise an order passed in appeal by a Divisional Canal Officer under sub-section. (5).
Provided that no such application shall lie unless it is made within a period of thirty days from the date of such order.
(7) No order passed under this section shall be liable to be called in question in any civil court."
7. The perusal of the aforementioned, provisions of law would show that the jurisdiction of the Civil Court was barred and hence the plaint was required to be rejected' under Order 7 Rule 1 l(d) of C.P.C, instead of returning the same. The plaint can be returned under Order 7 Rule 10 of C.P.C, for the purpose of presentation of the same to the Court in which the suit should have been instituted. Since the suit could not be instituted in any Civil Court whether A, B or C, so the plaint was required to be rejected being barred by Northern India Canal and Drainage Act, 1873. Order 7 Rule 10 and Order 7 Rule 11 C.P.C, are reproduced as under:
"10. Return of plaint:-- (1) (Subject to the provision of rule 10a) 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.
(Explanation:-- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule).
(2) Procedure on returning plaint:-- On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it."
"11. Rejection of plaint:--The plaint shall be rejected in the following cases:
a) Where it does not disclose a cause of action;
b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on "being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
d) Where the suit appears from the statement in the plaint to be barred by any law.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
8. Secondly the trial Court committed an illegality while dismissing the application of the plaintiffs-petitioners under Order 39, Rules 1 and 2 read with Section 151 C.P.C.
9. It is well settled that if any court has no jurisdiction to entertain and try the suit it cannot pass any order accepting or rejecting the application for temporary injunction as well. In any case it has to return or reject the plaint, as the case may be.
10. Another illegality committed by the trial Court is that without hearing the rival contention of the parties it granted ex parte permission to the plaintiffs-petitioners to file a suit without serving notice under Section 80 C.P.C. It is well settled that if temporary injunction is to be declined after considering the rival contention of the parties then the plaint has to be returned to the plaintiff for filing the same after serving notice under Section 80 C.P.C, if otherwise suit is maintainable, as in that case, there will be no urgency so as to exempt the plaintiffs from filing the suit without serving notice under Section 80 C.P.C. Thus injunction showing urgency and exemption under Section 80(2) C.P.C, are correlated and co-existent. Section 80(2) C.P.C, is reproduced as under:
"80(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by subsection (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of subsection (1)."
11. It is also well settled that if the civil Court has no jurisdiction, grant of exemption to file the suit without serving notice under Section 80 C.P.C, will not improve the situation and the plaintiff cannot stake any claim on the basis thereof as the mistaken belief could not confer jurisdiction upon Court. Hence the action of the trial Court in dismissing the application for temporary injunction and granting the permission under Section 80 C.P.C, were beyond its jurisdiction in the present case.
12. The Lower Appellate Court also committed an illegality while arriving at the conclusion that an order returning the plaint is not appeal able. Provisions of Order 43, Rule l(a) C.P.C, clearly provides an appeal from an order passed under Order 7, Rule 10 which reads as under:--
"1. Appeals from orders:-- An appeal shall lie from the following orders under the provisions of section 104, namely :--
(a) an order under Rule- 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10a of order vii has been allowed."
13. Since it is not the case of return of plaint but would be a case of rejection of plaint, so even if the conclusion of the Lower Appellate Court is against law, it will not give any benefit to the plaintiffs-petitioners for the aforementioned reasons.
14. For the foregoing reasons, the revision petition is dismissed being devoid of merits. However, instead of returning the plaint it is ordered to be rejected under Order 7 Rule 11 (d) C.P.C. Parties are left to bear their own costs.
14. Petition dismissed.
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