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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.8957-8958 of 2013

ONGC Ltd. … Appellant

Versus

M/s. Modern Construction and Co.                         … Respondent

J U D G M E N T

Dr.B.S.Chauhan, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment and order dated 10.12.2010 passed by the High Court  of  

Gujarat at Ahmedabad in Special Civil Application Nos.5036-5037 of  

2010, reversing and setting aside the order dated 12.3.2010, passed by  

the  Addl.  District  Judge,  Fast  Track  Court,  Surat  in  Misc.  Civil  

Appeal Nos.29 and 30 of 2008 as well as the order dated 28.9.2007,  

passed in Special Execution Petition Nos.17 and 18 of 2007, passed  

by the 2nd Additional Senior Civil Judge, Surat.

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2. Facts and circumstances giving rise to these appeals are that:

A. A contract  for  re-construction of  cement  godown,  site  office  

and warehouse for LPG Plant at Kawas in Surat District was  

awarded by the appellant to the respondent to be completed on  

or  before  8.8.1984  vide  agreement  dated  9.2.1984.   The  

respondent  completed the work with an inordinate delay and  

possession could be taken by the appellant only on 31.6.1985.  

The  respondent  filed  Civil  Suit  Nos.60,  61  and  62  of  1986  

against the appellant in the Civil Court at Mehsana to recover  

the outstanding dues from the appellant.

B. The  Civil  Court  vide  judgment  and  decree  dated  31.1.1994  

allowed  Civil  Suit  Nos.61  and  62  of  1986  in  favour  of  the  

respondent.

C. Aggrieved, the appellant filed First Appeal Nos.1451, 1452 and  

1453 of 1994 before the High Court of Gujarat challenging the  

said judgment  and decree dated 31.1.1994.  The High Court  

vide common judgment and order dated 18.3.1997 held that the  

Civil Court at Mehsana did not have territorial jurisdiction to  

entertain the suits.   Therefore, the said judgment and decrees  

passed in the civil suits were set aside and the Civil Court at  

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Mehsana was directed to return the plaints to the respondent so  

that the same may be presented before the  appropriate court  

having jurisdiction.

D. The plaints  were  returned to  the  respondent  in  the  aforesaid  

civil  suits,  who instituted the same before the Civil  Court  at  

Surat on 3.2.1999 being Civil Suit Nos.56, 57 and 58 of 1999.  

The said suits were allowed by the 3rd Additional Senior Civil  

Judge vide judgment and decree dated 21.9.2006 holding that  

the  respondent  was  entitled  to  receive  an  amount  of  

Rs.1,29,138/-, Rs.1,69,757/- and Rs.58,616/- in the respective  

suits with a future interest @ 12% per annum from the date of  

filing of the suit till realisation.   

E. The appellant complied with the decrees passed by the 3rd Addl.  

Senior Civil Judge and made the payment of decretal amount to  

the  respondent  calculating  the  interest  on  the  principal  sum  

from  3.2.1999,  i.e.  the  date  on  which  the  respondent  had  

presented the plaints in the court of competent jurisdiction at  

Surat.   

F. The respondent  after  receiving the said amount  filed Special  

Execution  Petition  Nos.  17  and  18  of  2007  on  5.3.2007  

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claiming interest  for the period 1986 to 1999, i.e.  during the  

period  when  the  suit  remained  pending  before  the  court  at  

Mehsana which had no jurisdiction.  The Executing Court vide  

order  dated  28.9.2007  dismissed  the  Execution  petition  

observing that respondent was entitled to interest from the date  

of filing of the suit at Surat and not from the date on which the  

plaint was presented at Mehsana.

G. Aggrieved,  the  respondent  preferred  Misc.  Civil  Appeal  

Nos.29, 30 and 35 of 2008 before the District Court at Surat  

and the same were dismissed vide order dated 12.3.2010.

H. Aggrieved,  the  respondent  challenged  the  said  order  dated  

12.3.2010  by  filing  Special  Civil  Application  Nos.5036  and  

5037 of 2010 before the High Court of Gujarat at Ahmedabad  

and the said applications have been allowed vide order dated  

10.12.2010 holding that the respondent was entitled to interest  

from the date of institution of the suit at Mehsana Court.

Hence these appeals.

3. Shri Parag P. Tripathi, learned Senior counsel appearing for the  

appellant  duly  assisted  by  Shri  Nishant  Menon,  Advocate  has  

submitted  that  the  plaints  had  initially  been  instituted  at  Mehsana  

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Court which had no territorial jurisdiction to entertain these suits and  

even after being decreed, the High Court vide order dated 18.3.1997  

had rightly set aside the judgment and decrees and asked the court at  

Mehsana to return the plaints to the respondent so that the plaintiff  

could  present  them  before  the  court  of  competent  territorial  

jurisdiction.   Therefore,  the  order  of  the  High  Court  has  to  be  

understood to have been passed in view of the provisions of Order VII  

Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to  

as  ‘CPC’)  and  not  a  case  of  transfer  of  a  suit  from the  Court  at  

Mehsana to the Civil Court, Surat. Once the plaint is presented after  

being returned from the court having no jurisdiction, it is to be treated  

as  a fresh suit and even if the trial was conducted earlier, as in the  

instant case, it had to be done de novo.  The only protection could be  

to take advantage of the provisions of Section 14 of the Limitation  

Act,  1963 (hereinafter  referred  to  as  the ‘Limitation Act’)  and the  

court  fees  paid  earlier  may  be  adjusted  but  by  no  stretch  of  

imagination it can be held to be a continuation of the suit.  Had it been  

so there would be no occasion for the High Court  to set  aside the  

judgment and decree of the civil court at Mehsana at such a belated  

stage.  Thus the impugned judgment and order is liable to be set aside.

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4. Per contra, Shri Santosh Krishnan, learned counsel appearing  

for  the  respondent  has  submitted  that  in  fact,  the  suits  had  been  

instituted at Mehsana Court in 1986 and the civil court therein had  

decreed the suit.    The High Court in the impugned order has clearly  

stated that the suits were  transferred from Mehsana Court to Civil  

Court at Surat and therefore, the respondent was entitled for interest  

from the date of institution of suit at Mehsana.   The judgment and  

decree dated 21.9.2006 clearly reveals that the suits were received and  

registered on 24.3.1986.  The appellant had not applied for correction  

of the said judgment and order by filing an application under Section  

152 CPC.  Therefore, no interference is called for and the appeals are  

liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

 6.       The High Court while passing order dated 18.3.1997, did not  

exercise  its  power  of  transfer  under  Section  24  CPC;  rather   the  

language used in the said judgment makes it clear that the return of  

the plaints was required in view of the provisions of Order VII Rule  

10 CPC.  The relevant part of the order reads as under:      

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“Therefore, the impugned judgments and decrees in all  the  three  appeals  are  allowed  only  on  the  limited  ground  that  civil  court  at  Mehsana  had  no  jurisdiction to entertain the suits with the result, the  plaints are required to be returned to the Plaintiff for  filing  suits  in  appropriate  forum  or  court  at  appropriate place in view of provisions of O. 7, R 10  of  the  CPC. Therefore,  the  plaints  are  ordered  to  be  returned to  the Plaintiff  or  (sic)  presentation  to  proper  court having territorial jurisdiction. No doubt, we cannot  resist  temptation  of  mentioning  the  fact  that  the  controversy is very old. It pertains to money on the basis  of  breach  of  contract.  Therefore,  the  proper  court  on  presentation of plaints will expeditiously determine and  decide  the  dispute  between  the  parties.  We  have  not  entered  into  merits  of  other  issue  decided  by  the  trial  court as decisions rendered in respect of other issues as  they are examined and adjudicated upon by the trial court  without jurisdiction. In the result, all the three appeals are  allowed and impugned judgment and decree are quashed  and  set  aside.  The  appeals  are  allowed.  The  plaints,  therefore,  shall  be  returned  to  the  Plaintiff  for  presentation to proper court.”               (Emphasis added)

7. In  Ramdutt  Ramkissen Dass  v.  E.D.  Sassoon & Co.,  AIR  

1929 PC 103, a Bench of Privy Council held:

"…..It is quite clear that where a suit has been instituted   in a court which is found to have no jurisdiction and it is   found  necessary  to  raise  a  second  suit  in  a  court  of   proper jurisdiction, the second suit cannot be regarded   as a continuation of the first,  even though the subject   matter and the parties to the suits were identical……"

                                                              (Emphasis added)

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8. In  Sri Amar Chand Inani v. Union of India, AIR 1973 SC  

313, the issue involved herein was considered and this Court held that  

in such a fact-situation, where the plaint is returned under Order VII  

Rule 10 CPC and presented before the court of competent jurisdiction,  

the  plaintiff  is  entitled  to  exclude  the  time  during  which  he  

prosecuted the suit before the court having no jurisdiction in view of  

the provisions of Section 14 of the Limitation Act and by no means it  

can  be  held  to  be  continuation  of  the  earlier  suit  after  such  

presentation.

9. In Hanamanthappa & Anr. v. Chandrashekharappa & Ors.,  

AIR 1997 SC 1307, this Court reiterated a similar view rejecting the  

contention  that  once  the  plaint  is  returned  by the  court  having no  

jurisdiction and is presented before a court of competent jurisdiction,  

it must be treated to be continuation of the earlier suit.  The Court  

held:  

 “In substance,  it  is  a suit  filed afresh subject  to the   limitation,  pecuniary  jurisdiction  and  payment  of  the   Court  fee.   …. At best  it  can be treated to be a fresh   plaint and the matter can be proceeded with according to   law.”

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10. In  Joginder Tuli v. S.L. Bhatia & Anr., (1997) 1 SCC 502,  

this Court dealt with a case wherein the landlord had terminated the  

tenancy and filed a suit for possession.  An application for amendment  

of the plaint to recover damages for the use and occupation was also  

filed.  On that basis, the pecuniary jurisdiction of the Trial Court was  

beyond its  jurisdiction  and accordingly the plaint  was  returned for  

presentation to proper court.  On revision, the High Court directed the  

Court to return the plaint  to the District Court with a direction that the  

matter would be taken up by the District Court and proceeded with  

from the stage on which it was returned.  This Court disposed of the  

case observing:  

“Normally, when the plaint is directed to be returned for   presentation to the proper court perhaps it has to start   from the beginning but in this case, since the evidence   was already adduced by the parties, the matter was tried   accordingly.   The High Court  had directed to proceed   from that stage at which the suit stood transferred.  We   find no illegality in the order passed by the High Court   warranting interference.”   

11. This  Court  in  Harshad  Chimanlal  Modi  (II)  v.  D.L.F.  

Universal Ltd. & Anr., AIR 2006 SC 646 has approved and followed  

the judgment of this Court  in  Sri Amar Chand Inani (supra) and  

distinguished the case in Joginder Tuli (supra) observing that:  

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“The suit when filed was within the jurisdiction of the   Court  and  it  was  properly  entertained.   In  view  of   amendment in the plaint during the pendency of the suit,   however,  the  plaint  was  returned  for  presentation  to   proper  court  taking  into  account  the  pecuniary   jurisdiction of the court.  Such is not the situation here.”

   12. Section 14 of the Limitation Act provides protection against the  

bar of limitation to a person bonafidely presenting his case on merit  

but fails as the court lacks inherent jurisdiction to try the suit.  The  

protection also applies where the plaintiff brings his suit in the right  

court,  but  is  nevertheless  prevented  from getting  a  trial  on  merits  

because  of  subsequent  developments  on  which  a  court  may  loose  

jurisdiction because of the amendment of the plaint or an amendment  

in law or in a case where the defect may be analogous to the defect of  

jurisdiction.  

13. 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 VII 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  

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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.

14. There can also be no quarrel with the settled legal proposition  

that  the  Executing  Court  cannot  go  behind  the  decree.  Thus,  in  

absence of any challenge to the decree, no objection can be raised in  

execution.  (Vide:  Bhawarlal  Bhandari  v.  Universal  Heavy  

Mechanical  Lifting Enterprises  AIR 1999 SC 246;  Dhurandhar  

Prasad  Singh  v.  Jai  Prakash  University  & Ors.,  AIR 2001  SC  

2552; Rajasthan Financial Corpn. v. Man Industrial Corpn. Ltd.,  

AIR  2003  SC  4273;  Balvant  N.  Viswamitra  &  Ors.  v.  Yadav  

Sadashiv Mule (Dead) Thru. Lrs. & Ors., AIR 2004 SC 4377; and  

Kanwar Singh Saini v. High Court of Delhi,  (2012) 4 SCC 307).

15. In the instant case, a copy of the decree has not been filed by  

either of the parties.  The judgment and order dated 21.9.2006 shows  

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that  the  plaints  were  received  and  registered  on  24.3.1986.   The  

respondent cannot be permitted to take advantage of a mistake made  

by the court  and raise  a  technical  objection to  defeat  the cause  of  

substantial  justice.  The  legal  maxim,  ‘Actus  Curiae  Neminem  

Gravabit’ i.e. an act of Court shall prejudice no man, comes into play.  

(See: Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC  

1084; and  Bhagwati Developers Private Ltd. v. Peerless General  

Finance Investment Company Ltd. & Ors., AIR 2013 SC 1690).

16. This Court in Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v.  

Yogeshbhai  Ambalal  Patel  &  Anr.,  AIR  2012  SC  3285,  while  

dealing with the issue held:

“21.  A person alleging his own infamy cannot be heard   at any forum, what to talk of a Writ Court, as explained   by the legal maxim ‘allegans suam turpitudinem non est   audiendus'. If a party has committed a wrong, he cannot   be permitted to take the benefit of his own wrong….  

This  concept  is  also  explained  by  the  legal   maxims ‘Commodum ex injuria sua non habere debet’;   and  'nullus  commodum  capere  potest  de  injuria  sua   propria'.”  

17. Thus, the respondent cannot take the benefit of its own mistake.  

Respondent  instituted  the  suit  in  Civil  Court  at  Mehsana  which  

admittedly had no jurisdiction to entertain the suit. In spite of the fact  

that the civil suit stood decreed, the High Court directed the court at  

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Mehsana to return the plaint in view of the provisions of  Order VII  

Rule 10 CPC.  Thus, the respondent presented the plaint before the  

Civil Court at Surat on 3.2.1999.  

18. The judgment and decree dated 21.9.2006 clearly provided for  

future interest at the rate of 12 per cent per annum from the date of  

filing of the suit till  the realisation of the amount.  The Executing  

Court vide judgment and decree dated 28.9.2007 rejected the claim of  

the respondent observing that the respondent had wrongly filed suit at  

Mehsana and the said court had no jurisdiction, and the “wrong doer  

cannot get benefit of its own wrong” i.e. the benefit of interest on the  

amount  from  the  date  of  filing  the  suit  in  Mehsana  court.   The  

Appellate Court in its order dated 12.3.2010 reiterated a similar view  

rejecting  the  appeal  of  the  respondent  observing  that  “a  public  

undertaking cannot  be  penalised  for  the  mistake  committed  by the  

plaintiff by choosing a wrong forum”. Before the High Court when  

the  matter  was  taken  up  on  14.9.2010,  a  similar  view  had  been  

reiterated that the respondent cannot be allowed to take advantage of  

the words “from the date of the suit”, and conveniently overlook its  

own wrong of initially filing the suit in 1986 in the court at Mehsana.  

Though the court did not have jurisdiction, the plaintiff/respondent is  

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now claiming interest  for the period from 1986 to 1999 i.e.  for 13  

years by taking advantage of its own wrong and for that purpose, the  

plaintiff/respondent is trying to misconstrue the words mentioned by  

the learned trial court in the operative portion of the judgment dated  

21.9.2006, viz., from the date of filing of the suit.  However, while  

passing the impugned order, the High Court has used the language  

that the case stood transferred from the Mehsana court to the court at  

Surat and, therefore, interest has to be paid from the date of initiation  

of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the  

claim.   

19. We  are  of  the  considered  view  that  once  the  plaint  was  

presented  before  the  Civil  Court  at  Surat,  it  was  a  fresh  suit  and  

cannot  be  considered  to  be  continuation  of  the  suit  instituted  at  

Mehsana.  The  plaintiff/respondent  cannot  be  permitted  to  take  

advantage of its own mistake instituting the suit before a wrong court.  

The judgment and order impugned cannot be sustained in the eyes of  

law.

20. In view of the above, appeals are allowed. The judgment and  

decree  impugned  are  set  aside.   The  judgments  and  orders  of  the  

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Trial/Executing Court as well as of the Appellate Court are restored.  

There shall be no order as to costs.   

….………………..........J.  (DR. B.S. CHAUHAN)  

…...................................J.                                                (S.A. BOBDE)  

NEW DELHI;  October  7, 2013       

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