Trial Court Has To Return Plaint If It Inherently Lacked Jurisdiction; It May Look Into Averments Pleaded By Way Of Amendment: Bombay High Court

The Petition before the High Court was filed against the order directing that the application for amendment of a plaint would be first heard and decided, before rendering decision on an application for return of the plaint filed by the Defendants under Order 7 Rule 10.

Referring to the judgment in HSIL Limited v. Imperial Ceramic and Anr. (2018), the Single Bench of Justice Valmiki Menezes stated, “I am in complete agreement, as held in the above paragraphs, with the view taken by the Delhi High Court in HSIL Limited (supra), in that the Trial Court would be required to examine the plaint as it stood, and based upon the averments of the plaint, if it inherently lacked jurisdiction to take up the suit, it has to reject or return the plaint as the case may be without looking into the amendment; however, whilst doing so, the Trial Court may also look into the averments sought to be pleaded by way of amendment to test whether, if these averments were allowed to be incorporated, in the plaint as it originally stood, they would have the effect of conferring the jurisdiction on the Court dealing with the suit, which it otherwise lacked or that the amendment would assist the plaintiff to get over the bar of any law.”

Advocate Vibhav Amonkar represented the Petitioner, while Advocate Kaif Noorani represented the Respondent.

Factual Background

A Special Civil Suit was filed by the Respondent/Original Plaintiff wherein the Plaintiff sought a decree to direct the Defendant to compensate the Plaintiff in the sum of Rs 50,00,000 for loss of reputation of the Plaintiff caused by the Defendant. The cause of action for filing the suit arose when the Defendant published on Instagram, material, which according to the Plaintiff, was defamatory. The plaintiff also sought a decree directing the Defendant to issue a public apology and to retract the allegations made by the Defendants against the Plaintiffs.

On the aforementioned averments, the cause of action as pleaded in the plaint and reliefs sought, the Trial Court issued a summons to the Defendant. The Defendant filed an application under Order 7 Rule 10 CPC for return of the plaint, raising a plea that the suit partakes of a commercial transaction covered under the Commercial Courts Act and the Trial Court lacked the jurisdiction to entertain the suit. The plaint was sought to be returned to be presented before the appropriate Commercial Court, on this basis. Immediately thereafter, the Plaintiff moved an amendment application seeking to amend the valuation clause in the suit. By the impugned order, the Trial Court held that it was the application for amendment that would be first decided.

Reasoning

The Bench, at the outset, observed, “In my opinion, it is not in every case that the Court would consider the amendment application first, and then consider the application under Order 7 Rule 11 for rejection of plaint or under Order 7 Rule 10 CPC for return of plaint. The correct approach that the Court would have to follow would be to examine the plaint as it stood when filed, and consider whether on a holistic reading of the plaint, the Court totally lacked or inherently lacked jurisdiction to entertain the suit. If it did, it may not be appropriate for the Court, if it inherently lacks jurisdiction, either because the statute bars its jurisdiction or where the statute confers jurisdiction to try particular types of suits before a different forum, to allow an amendment application and bring a suit within its jurisdiction.”

“In other words, the Court would have to examine in the first place, whether its act of issuing summons in a suit, where it lacked the jurisdiction to entertain such a suit, (either because it was beyond its pecuniary jurisdiction or because it was barred by a law), was itself void and a nullity”, it added.

As per the Bench, it was incumbent upon the Trial Court to have first examined the plaint as it stood when filed and concluded for itself whether the plaint partook of a commercial suit, as argued by the Petitioners/Defendants. It ought to have also examined simultaneously whether the amendment application, if granted, would change the nature of the suit and bring it within the jurisdiction of the Court i.e. to see whether it would amount to converting what was originally a commercial suit into a regular civil suit, which the Trial Court would otherwise have jurisdiction to entertain. “It is only after examining the effect of the amendment on the plaint and the averments made in the plaint as it originally stood, that the Trial Court would have to decide whether amendment should be allowed, and conversely, the application for return of the plaint would have to be rejected. The converse equally applies”, it added.

Thus, setting aside the impugned order, the Bench directed the Trial Court to consider the averments made in the plaint as they stood when the plaint was brought before the Court, while also considering the effect of the amendment, if allowed. “On considering both the applications, if it concludes that the suit as originally filed is a commercial suit, the Trial Court shall return plaint to be presented before the appropriate Commercial Court, in which case it will lack the jurisdiction to grant the amendment application. However, if on considering both the applications, it concludes that the amendment application, if granted would have no effect on its jurisdiction, it would proceed to reject the application under Order 7 Rule 10 and consider the amendment application on its own merits. Obviously, therefore, the Trial Court would have to consider both the applications simultaneously.”

Cause Title: Akshay Quenim v. Royce Savio Pereira (Neutral Citation: 2025:BHC-GOA:1827)

Appearance

Petitioner: Advocates Vibhav Amonkar, Raj Chodankar, Omkar Bhave

Respondent: Advocate Kaif Noorani

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