Ane Jose v. State of Kerala and Ors.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 ``` ## `OP(C) NO. 248 OF 2023` ``` IN OS /2023 OF MUNSIFF COURT, KOTHAMANGALAM ``` ## `PETITIONER/PETITONER/PLAINTIFF:` ``` SMT. ANEE JOSE AGED 56 YEARS W/O JOSE @ JAMES, KAVUMPURATH HOUSE, ELANGAVAM KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM PIN – 686691 ``` ``` BY ADVS.S.SREEDEV ENOCH DAVID SIMON JOEL LEO LUKOSE RONY JOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI ``` ## `RESPONDENTS/RESPONDENTS/DEFENDANTS:` ``` 1STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN – 682021 ``` ``` 2TAHSILDAR TALUK OFFICE, KOTHAMANGALAM ERNAKULAM DISTRICT PIN – 686666 3DEPUTY TAHSILDAR TALUK OFFICE KOTHAMANGALAM ERNAKULAM DISTRICT PIN – 686666 ``` - `4 VILLAGE OFFICER VILLAGE OFFICE, VARAPPETTY,` ``` O.P.(C)No.248/2023 ``` ``` -:2:- ``` ``` KOTHAMANGALAM ERNAKULAM DISTRICT PIN - 686666 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.248/2023 ``` ``` -:3:- ``` Dated this the 31[st] day of January,2023 ## **J U D G M E N T** Aggrieved and confronted with Ext.P4 order dated 06.01.2023 passed in I.A.No.1/2023 in unnumbered OS by the Court of the Munsiff, Kothamangalam, the plaintiff in the suit has filed the original petition. The respondents are the defendants. 2. The skeletal facts leading to Ext P4 order, are: - (i) The petitioner instituted Ext P2 plaint before the court below to pass a decree of permanent prohibitory injunction, to restrain the respondents from taking any action against plaint ‘A’ schedule property, from realising the alleged dues of her husband from her and from removing the plaint ‘B’ schedule movables from the building situated in plaint ‘A’ schedule property. - (ii) Along with the suit, the petitioner filed I.A.No.2/2023(Ext P3) for an order of temporary injunction. ``` O.P.(C)No.248/2023 ``` ``` -:4:- ``` - (iii) The court below, without numbering the suit or granting the petitioner an opportunity of being heard, has returned Ext P2 plaint holding that it has no jurisdiction to entertain the plaint in view of the embargo under Section 72 of the Kerala Revenue Recovery Act,1968(in short, ‘Act’). - (iv) Ext P4 order is improper, unjust and illegal. Hence, the original petition. 3. Heard; Sri. S.Sreedev, the learned counsel appearing for the petitioner and Sri. S. Unnikrishnan, the learned Government Pleader appearing for the respondents. 4. The short point is, is there any illegality in Ext P4 order?. 5. A bare reading of Ext P4 order would reveal that the court below, without even numbering the suit, has laconically held that it has no jurisdiction to entertain the suit in the light of the statutory bar under ``` O.P.(C)No.248/2023 ``` ``` -:5:- ``` Section 72 of the Act and, consequentially, ordered the return of the plaint. 6. Order 7 Rule 10 of the Code of Civil Procedure,1908(in short, 'C.P.C.') deals with return of plaint and Order 7 Rule 11 of the Code deals with rejection of plaint. 7. There is a marked difference in the above two statutory provisions. 8. A Division Bench of this Court in **Rimi Albi and Anr. v. Kerala State Co-operative Bank and Ors.** [2013(3) KHC 587] has held thus: “3. The grounds recognised for returning of plaint in terms of Order 7 Rule 10 of CPC are pecuniary jurisdiction and territorial jurisdiction. The clear terms thereof provides only for the plaint being returned to be presented to the Court in which the suit should have been instituted. A suit of civil nature under Section 9 of CPC, can be instituted only in a Civil Court. The words 'Courts', 'suits', and 'plaint' in Order 7 Rule 10 of CPC do not provide any room to devise a mechanism to return of plaint for its presentation before any other Forum, after holding that the suit is barred by any provision of law. ``` O.P.(C)No.248/2023 ``` ``` -:6:- ``` Therefore, the impugned order returning the plaint is not sustainable. 4. Learned counsel for appellants is also justified in criticising the impugned order, as one by which the Court below has essentially decided on an issue as to the maintainability of the suit. Such a question could have been gone into only in the suit after registering the plaint. If grounds are made for rejection of the plaint on any of the grounds referable to Order 7 Rule 11 CPC, that could follow. That is a different matter. If none of those grounds exists, the Court has to decide the suit on its merits, even on a ground of jurisdiction or maintainability. Even such an issue can be considered as a preliminary issue, only if it is a pure question of law and not one which is a mixed question of law and fact.” 9. In the light of the explicit enunciation of law in the afore-referred decision, a plaint can be returned only if the court lacks pecuniary or territorial jurisdiction. 10. In the case on hand, the court below has passed Ext P4 order, assumably on the ground that the suit is hit by Section 72 of the Act. If that be the case, ``` O.P.(C)No.248/2023 ``` ``` -:7:- ``` the court below was precluded from ordering the return of the plaint under Order 7 Rule 10 of the Code. If the suit was found to be barred by any law, the course available to the court below was under Order 7 Rule 11 of the Code. 11. Recently, this Court in **Surendran S. v. State of Kerala** [2023 (1) KHC 352], has laid down the criteria by which a suit can be rejected under Order 7 Rule 11(d) of the Code. 12. On a conspectus of the law, the pleadings and materials on record and the findings rendered above, I am definitely of the view that the court below has overstepped its bounds of authority and power in passing Ext.P4 order, which warrants interference by this Court in exercise of its power of superintendence under Article 227 of the Constitution of India. Resultantly, I allow the original petition as follows: (i) Ext P4 order is set aside. ``` O.P.(C)No.248/2023 ``` ``` -:8:- ``` - (ii) The parties are directed to appear before the court below on 06.02.2023. - (iii) The Court of the Munsiff, Kothamangalam, shall, following the ratio decidendi laid down by this Court in the afore-cited decisions, reconsider the issue whether the suit is maintainable or not, after numbering the suit, as a preliminary issue. - (iv) The court below shall afford both parties an opportunity of being heard. - (v) The respondents are directed to defer further coercive proceedings pursuant to Ext P1 notice until a decision is taken by the court below on the preliminary issue. Sd/- ## **C.S.DIAS,JUDGE** DST/31.01.23 // True copy// P.A. to Judge. Judge ``` O.P.(C)No.248/2023 ``` ``` -:9:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1A TRUE COPY OF THE NOTICE DATED 22.09.2022 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2A TRUE COPY OF THE PLAINT IN UNNUMBERED OS SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MUNSIFF'S COURT, KOTHAMANGALAM. EXHIBIT P3A TRUE COPY OF THE AFFIDAVIT AND INTERIM APPLICATION FILED AS I.A 1/2023 IN UNNUMBERED OS SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE MUNSIFF'S COURT, KOTHAMANGALAM. EXHIBIT P4A TRUE COPY OF THE ORDER DATED 06.01.2023 IN I.A 1/2023 IN UNNUMBERED OS ON THE FILES OFTHEHON'BLEMUNSIFF'SCOURT, KOTHAMANGALAM. ``` ``` RESPONDENTS’ EXHIBITS: NIL ```