K. Abraham Mathew, J.@mdash1. During the Christmas holidays in 2007 respondents 1 to 3 filed a plaint in the court of district judge, Thiruvananthapuram, which has been empowered to entertain it by section 19(1) of the Kerala Civil Courts Act. The court took it on its file as I.A. No. 3636 of 2007. The plaint showed that the court having jurisdiction to entertain the suit was sub court at Thiruvananthapuram. The petitioners in this O.P, who are defendants 1 and 2, entered appearance and filed Ext P2 ''written statement''. They challenged the territorial jurisdiction of sub court at Thiruvananthapuram to entertain the suit as the plaint schedule properties are situated within the local limits of sub court at Attingal. They also raised a contention that as the valuation shown in the plaint was only Rs. 25,000/- Munsiff court alone had jurisdiction to entertain the suit. The district court returned the plaint with the endorsement ''''returned for want of jurisdiction''''. Along with the plaint the ''written statement'' filed by the petitioners also was given to respondents 1 to 3. The latter made changes in the valuation shown in the plaint and filed it in sub court, Attingal, which took it on its file as O.S. No. 22 of 2008. The petitioners entered appearance in that court. The plaint was amended pursuant to the orders passed in I.A. No. 1814 of 2008. I.A. No. 1880 of 2008 filed by the petitioners to amend the written statement was dismissed. The 4th respondent was impleaded as additional third defendant. By the order passed in I.A. No. 1809 of 2009 the plaint was once again amended. When the suit was posted for trial the petitioners and the fourth respondent remained absent and the court passed Ext P4 ex parte decree against them. The application filed by them to set aside the ex parte decree was dismissed. F.A.O. No. 4 of 2012 and SLP No. 15380 of 2012 filed by them also were dismissed. Later, they filed R.F.A. No. 699 of 2012. A division bench of this court set aside the ex parte decree and remanded the matter to the trial court with a direction to consider the matter afresh after giving both parties opportunity to adduce evidence. After the remand, the petitioners filed Ext P6 ''written statement'' along with Ext P7 application to receive it. Respondents 1 to 3 objected to the prayer. The trial court held that Ext P6 written statement contained statements which are inconsistent with those in the written statement filed initially and the attempt of the petitioners was to take away the admission made in their initial written statement. It dismissed the application to receive the written statement which it called additional written statement, but granted them liberty to file an additional written statement "strictly in answer to the amended plaint". The refusal of the trial court to receive the ''written statement'' is challenged in this Original Petition.
2. Heard Sri. G.S. Ragunath counsel appearing for the petitioners and Sri. S. Sreekumar senior counsel appearing for respondents 1 to 3.
3. Learned counsel for the petitioners submits that a suit can be said to have been instituted only when the plaint is filed in the regular court and the plaint filed by respondents 1 to 3 before the district court did not become a suit and there was no question of the petitioners'' filing a written statement in the vacation court and the only written statement filed by them is the one they filed in the sub court, Attingal along with an application to receive it, which has been dismissed by the impugned order.
4. Section 19 of the Kerala Civil Courts Act which empowers the District Court to entertain proceedings during vacation reads thus:
"(1) The High Court may permit the Civil Courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year.
(2) During the adjournment of a Civil Court, the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters and for such purpose, appeals, plaints and petitions and other matters which would ordinarily be presented to such Civil Court shall be received in the District Court and any such order shall, except on matters to be presented in the District Court itself, remain in force until such matter has been heard and decided by the Court having jurisdiction and in the case of orders passed on matters to be presented in the District itself, such order shall be an order passed by a Court having jurisdiction."
In exercise of the powers given under this section the High Court issues notification. It is in accordance with this provision respondents 1 to 3 filed the plaint before the district court, which is hereinafter referred to as vacation court. The vacation court took it on its file as I.A. No. 3636 of 2007. On receiving notice from that court the petitioners appeared before it and filed a proceedings labelled written statement. The argument is that the case was not registered as an original suit but an interlocutory application (I.A.) in the vacation court and so the proceedings filed by the petitioners was not a written statement contemplated by the Civil Procedure Code.
5. Section 26 C.P.C provides that every suit shall be instituted by the presentation of a plaint or such other manner as may be prescribed. Plaint is not defined in the Code or General Clauses Act. Order 4 Rule 1 of the Code stipulates that every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf. Sub rule 2 mandates that the plaint shall comply with the rules contained in Orders 6 and 7 as far as they are applicable. Sub rule 3 makes it clear that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules 1 and 2. It is seen from the plaint presented by respondents 1 to 3 in the vacation court that it complied with the rules contained in Orders 6 and 7. So the plaint was duly instituted as contemplated by Order 4 Rule 1 sub-rule 3. Did the institution of the plaint by respondents 1 to 3 amount to institution of a suit? Learned counsel submits that it was registered as an Interlocutory Application (I.A) and not as an Original Suit (O.S) and so it did not become a suit. In Bulram Singh v. Dudh Nath (, AIR 1949 Allahabad 100) Allahabad High Court held that a proceedings started by the presentation of an application shall be treated as a suit as Section 26 C.P.C provides that a suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In Surendra Prasad v. Aftabuddin (, AIR 1922 Cal. 234) Calcutta High Court took the view that when the plaint is registered by the court the suit can be said to have been duly instituted. In B.K.N Pillai v. George Mendez (, AIR 1988 (2) KLT 605) High Court of Kerala held that mere presentation of a plaint does not make it a suit; it becomes a suit only when it is duly presented. The same view has been taken in Sugunan v. Joseph (, 2009(1) KLT 160) also. The conclusion is that a plaint which complies with the provisions in Orders 6 and 7 C.P.C becomes a suit when it is received on the file of the court and registered in the book prescribed for the purpose. The nomenclature given by the court does not determine the character of the proceedings. I do not find any difficulty to hold that the plaint filed by respondents 1 to 3 in the vacation court became a suit when it was received by the court on its file.
6. At the same time, I doubt whether it is proper for the vacation court to take a plaint on its file as an Interlocutory Application. Subrule 9 and subrule 10 of Rule 5 of the Civil Rules of Practice define Interlocutory Application and Original Petition respectively as follows: Interlocutory Application means an application to the court in any suit or appeal or proceeding already instituted in such court other than a proceeding for execution of a decree or order. Original Petition means a petition whereby any proceeding other than an appeal or proceeding in execution of a decree or order is instituted in a court. Instituting a proceeding for the first time as an interlocutory application is against the concept of interlocutory proceedings. An interlocutory proceedings presupposes institution of a suit or appeal or an original petition. To take a proceedings as an interlocutory application it should be fled in another proceedings which should be a proceedings other than an interlocutory proceedings.
7. The petitioners who appeared before the vacation court in response to the notice issued to them filed a proceedings labelled ''written statement''. The submission of Sri.G.S. Ragunath, learned counsel for the petitioners, is that it was only an objection and not a written statement as it was filed in answer to a proceedings taken on the file of the vacation court as an interlocutory application.
8. The term written statement is not defined in C.P.C or General Clauses Act. Section 27 C.P.C provides that where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim. The proceedings filed answering the claim of the plaintiff is called a written statement of defence, which is the term used in Order 8 Rule 1 C.P.C. The proceedings filed by the petitioners on their appearance before the vacation court bears the label written statement. It contains all the particulars which are ought to be stated in a written statement. It has been verified like a written statement. After entering appearance in the regular court (sub court, Attingal) they did not file another proceedings answering the claim in the plaint. The sub court recorded in the proceedings sheet that issues were framed, which means that the court treated the proceedings filed by the petitioners in the vacation court as their written statement (it is true that the court did not frame issues though it was recorded that issues were framed). In RFA. No. 699 of 2012 filed by them the petitioners had no case that they had not filed written statement in the suit. The division bench which considered the appeal accepted the proceedings filed by them in the vacation court as their written statement. In paragraph 20 in the judgment in the R.F.A the division bench has observed: "It is submitted that when there is already a written statement it is incumbent on the court to frame issues but the same is absent going by the judgment." Before the division bench submission of the learned counsel for the petitioners was that the proceedings filed by them in the vacation court was their written statement. They even complained of the omission of the trial court to frame issues on the basis of their written statement and the pleadings of the respondents 1 to 3. It is also pertinent to note that in the trial court they filed I.A. No. 1880/2008 for amending the ''written statement''. Their argument that the proceedings filed by them in the vacation court was not a written statement is only to be rejected.
9. The vacation court accepted the contentions raised by the petitioners that sub court, Thiruvananthapuram had no jurisdiction to entertain the suit and so it ordered return of the plaint. The court made the following endorsement on the plaint: "Returned for want of jurisdiction".
10. Order 7 Rule 10 sub rule 2 C.P.C provides that on returning the plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presented it and brief statement of the reasons for returning it. This was not complied with by the vacation judge. In Devaki Amma vs. Kochunarayanan (, 1977 KLT 773) this court has expressed an opinion that the reasons for the return as provided for in rule 10(2) of Order VII need not be recorded on the back of the plaint itself and the order for return containing the reasons serves the purpose of an endorsement as required under rule 10(2). But in the case on hand no such separate order was passed. In Basil Attipetty @ Basil A.G vs. State of Kerala and Others (, 2012 (2) KHC) a division bench of this court has deprecated passing of nonspeaking orders. It is pertinent to note that the petitioners attacked the maintainability of the suit on two grounds viz. 1) as the valuation of the suit was only Rs. 25,000/-, only Munsiff Court can entertain it. 2) as the properties are situated within the territorial limits of the court at Attingal, only that court can entertain the suit. The vacation judge did not mention how the sub court at Thiruvananthapuram lacked jurisdiction i.e whether it was subject matter, territorial or pecuniary jurisdiction. There was violation of the mandatory provision contained in Order 7 Rule 10 of the Code.
11. Order 7 Rule 10A C.P.C makes it mandatory for the court to intimate its decision to return the plaint to the plaintiff if the defendant has already entered appearance. This is to enable the plaintiff to file an application in the court specifying the court in which he proposes to present the plaint after its return. The court shall fix a date for the appearance of the parties in the court in which the plaintiff proposes to file the plaint after its return. These facts should be mentioned in the order to be written on the plaint itself by the Judge. The vacation judge failed to comply with Order 7 Rule 10A C.P.C also.
12. The vacation judge not only returned the plaint to respondents 1 to 3 but gave them the written statement filed by the petitioners also. Order 7 Rule 10 C.P.C empowers the court to return the plaint only. The proceedings filed by a party alone can be returned to him; the proceedings filed by another party cannot be returned to him. The vacation judge was wrong in giving the written statement filed by the petitioners to respondents 1 to 3.
13. Order 7 Rule 10 C.P.C empowers the court in which a plaint is wrongly presented to return it so that the plaintiff may file it in the proper court. Does it mean that it shall not return any other document? Can it return any other document?
14. In M. Krishnamoorthy v. Y. Ramamoorthy (AIR 1957 Andhra Pradesh 654) it was held that it must be deemed that the vakalatnama also was wrongly presented in the proceedings in the court which declined jurisdiction in the matter and that it could be used along with the other papers returned.
15. In Masumpi v. Dangar Singh (S.A. No. 497/1917 of High Court of Nagpur) it is observed that where a party delivers a duly signed vakalatnama to a pleader without putting his name in the body of the vakalatnama he impliedly authorises him to fill the detail and if, as in this case, the pleader simultaneously accepts the vakalatnama and signs his name in token of acceptance, the provisions of the law have been sufficiently complied with. The acceptance is in writing and was made in the presence of the party''s agent who executed the power of attorney (quoted in Maharashtraya Jnan Kosh v. Bijulal (AIR 1923 Nagpur 182). In Maharashtraya Jnan Kosh''s case the court observed as follows:
"But it appears to me that the original vakalatnama enures for the purposes of the suit in the Court in which the plaint is subsequently filed. Under rule 4(2) of Order 3, even if it contains no express provision to that effect, and therefore ought in every case to be returned along with the plaint."
16. By executing the vakalath the authority the party gives his advocate is to present it in proper court along with the plaint. After the plaint is returned to the advocate who presented it in a wrong court, how can he present it in the proper court unless the vakalath also is returned? The party gives an implied authority to the advocate to take back the vakalath and make corrections in it so that the latter may present it in the proper court along with the plaint. When a plaint is returned under Rule 10 in Order 7 C.P.C, the vakalath presented by the plaintiff''s advocate also should be returned to him.
17. Rule 132 of the Civil Rules of Practice makes it an obligation of the court to return the documents which have been filed in a proceedings but which have not been tendered in evidence as early as possible even without an application. It is sufficient that an acknowledgment is obtained in the list of documents. A fortiori, the court which returns the plaint should return the documents produced by the plaintiff also because when the plaint is returned for want of jurisdiction, in the eye of law, there has been no institution of any proceedings in that court.
18. When a plaint is returned under Order 7 rule 10 C.P.C for want of jurisdiction, though the court shall return the vakalath and the documents filed by the plaintiff, it shall not give him the written statement or documents or other proceedings filed by any other party.
19. When the plaintiff presents the plaint in the court in which it should have been instituted, he may get the benefit Section 14 of the Limitation Act. This is the purpose for which the plaint is returned and the reason why Order 7 Rule 10 C.P.C prescribes that the judge shall endorse on the plaint the date of its presentation and return. If the plaintiff does not want to claim the benefit of Section 14 of the Limitation Act, he need not present the plaint returned to him, but may prepare a new plaint and file it in the proper court, for which there is no impediment.
20. In Komappan Vs. Karthiyayini (, 1968 KLT 705) a learned judge of this court that if no substantial changes have been made in the plaint after its return by the wrong court and before its presentation before the proper court it cannot be said that the plaint filed in the latter court is a new plaint in all respects. To put it in other words, only when substantial changes have been made in the plaint before its presentation in the latter court, it can be said to be a new plaint. The learned judge further held that if it is not a new plaint the plaintiff is entitled to get credit for the court fees paid on the plaint in the wrong court. At the same time his lordship held that only the practice of the court entitles him to get such credit.
21. The decision of this court in Kuttikkadan Engineering Company Vs. Hindustan Steel Ltd. (1977 KLT 488) is worthy of notice in this context. The learned Single Judge held:
"When a plaint is returned under Order VII Rule 10 C.P.C for representation before the proper court, as far as the court which returns the plaint is concerned, the suit comes to an end. If, instead of representing the plaint before the proper court as directed in the order returning the plaint, the plaintiff wants to file it again before the court which returned the same by making necessary alterations to attract the jurisdiction of the court it will be nothing but the institution of a suit. So, it goes without saying that all the formalities including the payment of fresh court-fee have to be complied with."
22. In Amar Chand Inani Vs. Union of India (, AIR 1973 SC 313) the Supreme Court held that the suit filed in the proper court is not a continuation of the suit filed in the court which had no jurisdiction. The decision of the apex court in Hanamanthappa Vs. Chandrashekharappa (, AIR 1997 SC 1307) is sufficient to clear all doubts in this regard. The court has said: "In substance, it is a suit filed afresh subject to limitation, pecuniary jurisdiction and payment of the court fees." The decision in Komappan''s case does not lay down the correct law to the extent it holds that the plaint filed in the proper court after its return from the wrong court is a new plaint if the plaintiff has made substantial changes in it in between.
23. There is a practice of the court''s giving credit to the court fees already paid by him in the court which returned the plaint if the plaint is presented in the proper court within a fixed period. This has no statutory backing and is only a grace of the court as observed in Parameswaran v. Ramachandran (, 1986 KLT 982). In fact, the court which returns the plaint has no jurisdiction to fix a time to present it in the proper court and it is of no assistance to the plaintiff in computing the period of limitation. Reliance may be placed on the decisions of this court in Narayana Vs. Vasudeva (, 1964 KLT 145), Abraham Vs. Sadanandan and others (1979 KLT 493) and Parameswaran vs. Ramachandran (supra).
24. If the plaint presented in the proper court after its return is a new plaint for all purposes, no doubt, the defendant has every right to file new written statement even though he had filed a written statement in the court which returned the plaint. But it is not necessary for him to file a new written statement; he may request the court in which the new plaint is filed to call for the written statement and the documents he filed in the other court. As the proper court can act upon the plaint returned by the wrong court, it can act upon the written statement also filed in the wrong court, but only if the defendant so desires. Once he causes the proper court to accept the statement filed in the wrong court as his written statement and the court acts upon it, he cannot be allowed to turn round later and say that it is not his written statement and that he is entitled to file another written statement answering the claim in the plaint filed in the proper court. The petitioners did not want to file a new written statement in the sub court, Attingal and that court acted upon their written statement filed in the vacation court and proceeded with the trial of the suit. It is not fair or just on their part to say that the written statement filed in the vacation court shall be ignored and they are entitled to file another written statement.
25. Another complaint of the petitioners is that after the plaint was returned by the vacation court, and before it was produced before the sub court, Attingal respondents 1 to 3 amended it without any authority. When a plaint is returned it ceases to be in the custody of the court and before it is produced before the proper court it does not come into the custody of that court. The plaintiff need not take the permission of any court for its amendment before it is presented before the proper court. Moreover, unless the name of the court is amended, how can it be presented before the court in which it should have been filed. The plaintiff has every right to amend the plaint before it is presented in the proper court Hanamanthappa and another v. Chandrashekharappa and others (, AIR 1997 SC 1307), Kuttikkadan Engineering Company v. Hindustan Steel Ltd. (1977 KLT 488) and Devaki Amma v. Kochunarayanan (, 1977 KLT 773) have held so.
26. Natural justice demands that when a plaintiff amends his pleadings the defendant is entitled to file an additional written statement unless the nature of the amendment does not require it. The division bench of this court in R.F.A. No. 699 of 2012 allowed the petitioners to file an additional written statement and not a new written statement.
27. It is well settled that a defendant cannot be allowed to withdraw the admission already made in the written statement. In M/S. Modi Spinning and Weaving Mills Co. Ltd., and another Vs. M/S. Ladha Ram and another (, AIR 1977 SC 680) the Supreme Court has held that though a defendant may make inconsistent pleas in the written statement, he cannot be allowed to displace the plaintiff completely from the admission made by him in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced. This was followed by this court in Bullemmayi vs. Venkatareddi (1990 (2) KLT SN page 53), in which it is observed: "If the intention of filing the additional written statement was to completely alter the plea which has already been taken in the original written statement and not to add to or amend the same without affecting the fabric of the original defence, the trial court was right in its order refusing leave to the petitioner to file the additional written statement." Heeralal v. Kalyan Mal and Others (, AIR 1998 SC 618) is another decision and Ram Niranjan Kajaria v. Sheo Prakash Kajaria and Others (, 2015 (1) SCC 203) the latest decision of the Supreme Court in which this principle has been reiterated. There is no dispute that in the additional written statement filed by the petitioners they have withdrawn certain admissions made in the written statement filed before the vacation court. The learned sub judge rightly refused to receive it on file.
In the result, this Original Petition is dismissed. The petitioners are allowed to file a proper additional written statement within 3 weeks from today.
