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OP(C) NO. 394 OF 2022
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# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944
OP(C) NO. 394 OF 2022
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IN IA 3/2021 IN OS 732/2018 OF ADDITIONAL MUNSIFF
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## **`COURT,NEDUMANGAD`**
## **`PETITIONER:`**
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MURALEEDHARAN PILLAI,
AGED 53 YEARS
S/O. VASUDEVAN PILLAI, NILAVU, ELAMBAL, PUNALUR
VILLAGE, KOLLAM 691 505.
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BY ADV B.MOHANLAL
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## **`RESPONDENT:`**
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RAKESH RAO,
S/O. RAVEENDRANATH RAO, T.C. 41/1080, ATTUKAL,
MANACAUD P.O, THIRUVANANTHAPURAM-695 009
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BY ADVS.
M.M.BABY
SONIA STEPHEN(K/001511/2003)
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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(C) NO. 394 OF 2022
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## **Dated this the 14[h] day of July, 2022**
## **JUDGMENT**
The original petition is filed challenging the order in IA No.3/2021 in O.S. No.732/2018 (Ext.P7) of the Court of the Additional Munsiff, Nedumangad.
2. The petitioner’s case, in a nutshell, relevant for the determination of the original petition is that, he is the defendant in O.S. No.732/2018, filed by the respondent. The respondent had initially filed the suit as O.S. No.1359/2015 before the Court of the Principal Munsiff, Thiruvananthapuram, seeking a decree for realisation of an amount of Rs.4,07,500/- with interest. The respondent had also filed I.A No.5546/2015 in the suit for an order of attachment before judgment. The court of the Munsiff, Thiruvananthapuram, by Ext.P2 order, passed a conditional order of attachment before judgment, which was later modified by Ext.P3 order. Then, the petitioner had filed a
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written statement, inter-alia, contending that the Court of the Munsiff, Thiruvananthapurm lacks the territorial jurisdiction to entertain the suit. Consequently, the Court of the Munsiff, Thiruvananthapuram, by Ext.P6 order, ordered the return of the plaint to be re-presented before the proper court. The respondent re-presented the plaint before the Court of the Additional Munsiff, Nedumangad and the same was re-numbered as O.S. No.732/2018. Then, the petitioner had filed I.A.No.3/2021, to return the original documents that were offered as security, pursuant to Ext.P3 order of attachment passed by the Court of the Munsiff, Thiruvananthapuram, on the ground that there was no order of attachment in force. However, the court below, without adverting to the contentions raised by the petitioner in the above application, by the impugned Ext.P7 order, dismissed I.A. No.3/2021. Ext.P7 is erroneous and wrong. Hence, the original petition.
3. Heard; Sri. B.Mohan Lal, the learned counsel appearing for the petitioner and Smt.Baby. M.M, the learned
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counsel appearing for the respondent.
4. Sri. B.Mohan Lal argued that once the suit was returned by the Court of the Munsiff, Thiruvananthapuram, as it lacked territorial jurisdiction, all the interim orders passed in the suit became a nullity. Therefore, Exts.P2 and P3 orders of attachment stood automatically lifted. Hence, the petitioner is entitled for the return of the original documents produced pursuant to Ext.P3 order.
5. Smt. Baby M.M, opposed the above submission and argued that after the plaint was re-presented before the Court of the Additional Munsiff, Nedumandgad, all the interim orders passed in the applications in the suit stood revived and continued to be in force. The court below has rightly rejected the petitioner’s application for return of the original documents.
6. The point is whether there is any irregularity or
illegality in Ext.P7 order passed by the court below.
7. Undisputedly, the Court of the Munsiff,
Thiruvananthapuram had passed Exts.P2 and P3 orders,
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pursuant to which the petitioner had furnished security by offering his property. It was later that the petitioner raised the contention that the said Court had lacked territorial jurisdiction to entertain the suit. Accordingly, the Court of the Munsiff, Thiruvananthapuram returned the plaint for representation before the proper court and the respondent re-presented the plaint before the Court of the Additional Munsiff, Nedumangad, and the suit was re-numbered as O.S. No.732/2018.
8. The Hon'ble Supreme Court in **M/s. Exl Careers And Another v. Frankfin Aviation Services Private Limited** [2020 (4) KHC 498] has emphatically held that, if a suit is returned for re-presentation, the suit shall proceed de novo. A similar view has also been taken by the Hon'ble Supreme Court in **Harshad Chimanlal Modi v. DLF Universal Ltd and another** [2006 KHC 35] holding that, if a plaint is returned for presentation to proper court due to lack of it will not be considered as a jurisdiction, continuation of the proceeding.
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9. In the light of the above exposition of law, I have no doubt in my mind that Exts.P2 and P3 have become non-est and non-existent. Nonetheless, that does not mean that the transferee court, namely, the Court of the Munsiff, Nedumangad, does not have the jurisdiction to adjudicate the applications afresh.
10. Immediately on the suit getting re-numbered, all the applications filed in the suit are also to be re-numbered and reconsidered by the new Court. It is before the applications were re-considered that the petitioner has sought for return of the documents, which was rejected by Ext.P7 order. The respondent has the right to move the applications before the Court of the Additional Munsiff, Nedumangad and seek for their reconsideration. Even though I hold that Ext.P7 order passed by the court below is erroneous and wrong, the same will not defeat the right of the respondent to move the applications pending in the suit before the present court.
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11. At this stage, Sri.B.Mohan Lal submitted that the petitioner is ready to offer cash security, in lieu of the property that was offered as security.
12. In view of the above factual and legal matrix, I direct the court below, to consider the application pending in the suit for an order of attachment before judgment, and if the petitioner offers sufficient cash security to the satisfaction of the court below, the same can be accepted and the original documents produced in the suit be returned to him in accordance with law.
With the above observations, this original petition is disposed of.
Sd/-
rmm/14/7/2022
**C.S.DIAS JUDGE**
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## **`APPENDIX OF OP(C) 394/2022`**
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PETITIONER EXHIBITS
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- `Exhibit P1`
- `THE TRUE COPY OF THE PLAINT O.S. NO. 1359/2015 FILED BY THE RESPONDENT/PLAINTIFF AGAINST THE PETITIONER/DEFENDANT BEFORE THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM`
- `Exhibit P2 THE TRUE COPY OF THE ORDER DATED 16.072015 IN I.A. NO. 5546/2015 IN O.S. NO. 1359/2015 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM.`
- `Exhibit P3 THE TRUE COPY OF THE ORDER DATED 19.09.2015 IN I.A.NO. 7477/2015 IN O.S. NO. 1359/2015 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM.`
- `Exhibit P4 THE TRUE COPY OF THE SECURITY FURNISHED BY THE PETITIONER BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM.`
- `Exhibit P5 TRUE COPY OF THE ORDER DATED 15.09.2018 IN O.S. NO. 1359/2015 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM.`
- `Exhibit P6 THE TRUE COPY OF THE ORDER DATED 18.09.2018 IN O.S.NO. 1359/2015 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM.`
- `Exhibit P7 THE TRUE COPY OF THE ORDER DATED 25.01.2022 IN I.A. NO.3/2021 IN O.S. NO. 732/2018 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD.`
- `RESPONDENT EXHIBITS`
- `EXHIBIT R1`
- `THE TRUE COPY OF THE PLAINT IN OS NO. 732/2018 FILED BEFORE THE ADDITIONAL MUNSIFF COURT NEDUMANGAD`
- `EXHIBIT R2 TRUE COPY OF IA NO. 3/21 IN OS NO. 732/18 OF ADDITIONAL MUNSIFF COURT NEDUMANGAD`
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## **`OP(C) NO. 394 OF 2022`**
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EXHIBIT R3TRUE COPY OF THE OBJECTION FILED IN IA NO.
3/21 IN O S NO. 732/18 OF ADDITIONAL
MUNSIFF COURT NEDUMANGAD
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