Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has set aside an order of the 2nd Additional District Judge, Srinagar, that denied the defendants’ request to file a fresh written statement citing lapse of the 120-day timeline, and has allowed them to file it within 30 days of their appearance before the trial court. The dispute stems from a civil suit where the plaintiff sought a declaration of ownership share in land and two residential houses, partition and possession, and an injunction against alienation. Holding that the plaint had been returned for want of pecuniary jurisdiction, the Court said the suit must begin afresh before the competent court even if evidence had earlier been completed.

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Upon consideration of the preliminary issue, the trial court found the suit to be undervalued and directed correction of valuation and payment of court fee. After compliance, the suit valuation exceeded the pecuniary jurisdiction of the court, leading to return of the plaint for presentation before the competent court. The plaint was thereafter transferred to another court having requisite pecuniary jurisdiction.

Following transfer, the defendants sought permission to file a fresh written statement. The transferee court rejected the application on the ground that the statutory period for filing a written statement had expired under Order VIII Rule 1 of the Code of Civil Procedure. This rejection formed the subject matter of challenge before the High Court, contending that once a plaint is returned for want of jurisdiction, the proceedings before the competent court must commence afresh and earlier procedural stages cannot be relied upon.

The Court examined the effect of return of plaint for lack of pecuniary jurisdiction and the procedural consequences flowing therefrom. Referring to settled legal principles, the Court recorded that “there can be no dispute to the legal position” that once a plaint is returned by a court lacking jurisdiction, the suit must proceed afresh before the competent court.

Relying on binding precedent, Supreme Court in Exl Careers v. Frankfinn Aviation Services Pvt. Ltd (2020) the Court noted that “after the return of plaint by the court lacking jurisdiction, the suit has to proceed de novo before the competent court, even if evidence of the parties stood concluded before the court which returns the plaint.” It was further recorded that “Order 7 Rule 10 read with Rule 10A cannot be interpreted as providing any discretion to the court to proceed in the suit from the stage from which the plaint was returned.”

The Court scrutinised the conduct of the transferee court and observed that “the learned trial court proceeded from the stage that had reached when the plaint was returned” and directly fixed the matter for recording of evidence. It was held that “when the parties appear before the court of competent jurisdiction, after the court lacking jurisdiction has fixed a date of appearance of the parties before it, the competent court has to proceed in the suit de novo.”

The Court expressly found fault with the approach adopted by the transferee court, stating that “the procedure adopted by the learned trial court by straightaway directing the plaintiff to produce evidence without calling upon the defendants to file written statement is palpably illegal and cannot be countenanced in law.” It was also recorded that “the defendants were not even required to file an application seeking permission to file written statement.”

The High Court further observed that “once it is concluded that the initial proceedings were held before a court that lacked jurisdiction, the written statement and other evidence that may have been led by the parties before the said court become non-est in the eyes of law.” Consequently, it was stated that “the defendants are within their rights to file their written statement before the transferee court.”

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The Court directed that “the petition is allowed” and “the impugned order dated 19.12.2024 passed by the learned 2nd Additional District Judge, Srinagar, is set aside. The petitioners are permitted to file their written statement before the learned trial court within a period of thirty days from the date of their appearance before the said court. The parties shall appear before the trial court on 26.12.2025.”

Advocates Representing the Parties

For the Petitioners: Mr. Showkat Ali Khan, Advocate

Case Title: Mohammad Shaif Bhat Alias Wani & Anr. v. Rafi Ahmad Bhat Alias Wani & Ors.
Case Number: CM(M) No. 75 of 2025
Bench: Justice Sanjay Dhar