M/S EXL CAREERS AND ANOTHERversusFRANKFINN AVIATION SERVICES PRIVATE LIMITED

                         [2020] 6 S.C.R. 289                              289


               M/S EXL CAREERS AND ANOTHER                                A
                                  v.
    FRANKFINN AVIATION SERVICES PRIVATE LIMITED
                   (Civil Appeal No. 2904 of 2020)
                         AUGUST 05, 2020                                  B
             [R. F. NARIMAN, NAVIN SINHA AND
                    INDIRA BANERJEE, JJ.]
      Code of Civil Procedure, 1908:
       Order VII Rules 10 and 10A – Return of the Plaint – To be          C
presented in the Court having appropriate jurisdiction – Whether
the suit to proceed de novo or to continue from the stage where it
was pending at the time of return of the plaint – Held: Where the
suit is returned to be presented in the Court of appropriate
jurisdiction, the suit shall proceed de novo.
                                                                          D
      Constitution of India:
       Arts. 136 and 142 – Suit for recovery – Territorial jurisdiction
questioned – Objection rejected – Later territorial jurisdiction
objected to on the basis of exclusionary jurisdiction clause in the
agreement between the parties – Objection rejected – In Revision          E
High Court directed return of the file, on the ground of the
exclusionary jurisdiction clause, to the Court of appropriate
jurisdiction – Civil Judge transferred the file to the Court having
jurisdiction – In Revision High Court rejected the contention of de
novo trial raised by the defendant – Appeal to Supreme Court –
Held: Though High Court was not correct in refusing de novo trial,        F
in the facts of the case, in order to do complete justice between the
parties, in exercise of power of Arts. 136 and 142 impugned order
is not set aside – Code of Civil Procedure, 1908 – Order VII rr. 10
and 10 A.
      Disposing of the appeal, the Court                                  G
      HELD: 1.1 It is no more res-integra that in a dispute between
parties where two or more courts may have jurisdiction, it is
always open for them by agreement to confer exclusive jurisdiction
by consent on one of the two courts. Clause 16B of the agreement
                                                                          H
                                 289
290            SUPREME COURT REPORTS                      [2020] 6 S.C.R.


A     between the parties leaves no doubt that the parties clearly
      indicated that it was only the court at Delhi which shall have
      exclusive jurisdiction with regard to any dispute concerning the
      franchise agreement and no other court would have jurisdiction
      over the same. In that view of the matter, the presentation of the
      plaint at Gurgaon was certainly not before a court having
B
      jurisdiction in the matter. [Para 13][297-C-E]
            1.2 The mere use of the words ‘return the file’ by the High
      Court in Revision in the order dated 05.09.2017 cannot enlarge
      the scope of jurisdiction under Order VII Rule 10 CPC to mean
      that the High Court has directed so with the intention for
C     continuance of the suit. Firstly, that objection was expressly
      rejected. Secondly the order itself states that the file be returned
      under Order VII Rule 10 and 10A CPC. Clearly what the High
      Court intended was the return of the plaint. [Para 11][296-F-G]
            1.3 There is no contradiction in the law as laid down in
D     *Modern Construction case pronounced after consideration of the
      law and precedents requiring reconsideration in view of any
      conflict with **Joginder Tuli case. *Modern Construction case lays
      down the correct law. [Para 17][299-D]
            1.4 Order VII Rule 10-A was inserted by the Code of Civil
E     Procedure (Amendment) Act, 1976 (with effect from 01.02.1977)
      in order to obviate the necessity of serving summonses on the
      defendants where the return of plaint is made after the appearance
      of the defendant in the suit. Also, under sub-rule (3) all that the
      Court returning the plaint can do, notwithstanding that it has no
F     jurisdiction to try the suit is to fix a date of appearance in the
      Court where plaint is to be filed after its return. The language of
      Order VII Rule 10-A is in marked contrast to the language of
      Section 24(2) and Section 25(3) of the Code of Civil Procedure.
      In cases dealing with transfer of proceedings from a Court having
      jurisdiction to another Court, the discretion vested in the Court
G     by Sections 24(2) and 25(3) either to retry the proceedings or
      proceed from the point at which such proceeding was transferred
      or withdrawn, is in marked contrast to the scheme under Order
      VII Rule 10 read with Rule 10-A where no such discretion is

H
      M/S EXL CAREERS AND ANOTHER v. FRANKFINN                           291
           AVIATION SERVICES PRIVATE LIMITED

given and the proceeding has to commence de novo. [Paras 19,             A
20 and 21][299-F-H; 300-A, C-D, G-H]
      Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013)
      9 SCC 32 : [2013] 7 SCR 581; State of West Bengal v.
      Associated Contractors (2015) 1 SCC 32 : [2014] 10
      SCR 426; Amar Chand Inani v. The Union of India                    B
      (1973) 1 SCC 115 : [1973] 2 SCR 684; *Oil and natural
      Gas Corporation Ltd. v. Modern Construction & Co.
      (2014) 1 SCC 648 : [2013] 10 SCR 466; Ramdutt
      Ramkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC
      103 : Hanamanthappa v. Chandrashekharappa, (1997)
                                                                         C
      9 SCC 688 : [1997] 1 SCR 846; Harshad Chimanlal
      Modi (II) v. DLF Universal Ltd. (2006) 1 SCC 364 :
      [2005] 5 Suppl. SCR 740 – relied on.
      **Joginder Tuli v. S.L. Bhatia (1997) 1 SCC 502 :
      [1996] 7 Suppl. SCR 221 – held per-in-curium and
                                                                         D
      distinguished.
      Oriental Insurance Company Ltd. v. Tejparas Associates
      and Exports Pvt. Ltd. [2019] 9 SCC 435 – overruled.
      R.K. Roja v. U.S. Rayudu (2016) 14 SCC 275 : [2016]
      3 SCR 221 – held inapplicable.                                     E
       2. In the peculiar facts and circumstances of the present
case, because the appellant did not raise the objection under
clause 16B of the agreement at the very first opportunity, the
first order of rejection attained finality, the objection under clause
16B was raised more as an after-thought, the second application          F
under Order VII Rule 10 CPC had to be preferred by the
respondent, that pleadings of the parties have been completed,
evidence led, and that the matter was fixed for final argument,
despite having concluded that the impugned order is not
sustainable in view of the law laid down in the *Modern
Construction case, in exercise of discretionary jurisdiction under       G
Article 136 of the Constitution and in order to do complete and
substantial justice between the parties under Article 142 of the
Constitution, in the peculiar facts and circumstances of the case,
nonetheless the impugned order of the High Court is not set
aside. [Para 27][300-C-E]                                                H
292            SUPREME COURT REPORTS                      [2020] 6 S.C.R.


A           Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer AIR
            1965 SC 95 : [1964] 7 SCR 49; Balraj Taneja v. Sunil
            Madan (1999) 8 SCC 396 : [1999] 2 Suppl. SCR 258;
            ONGC Ltd. v. Sendhabhai Vastram Patel (2005) 6 SCC
            454 : [2005] 2 Suppl. SCR 448; Shin-Etsu Chemical
            Co. Ltd. (2) v. Vindhya Telelinks Ltd., (2009) 14 SCC
B
            16; Karam Kapahi v. Lal Chand Public Charitable Trust
            (2010) 4 SCC 753 : [2010] 4 SCR 422 – relied on.
                            Case Law Reference
      [2013] 7 SCR 581              relied on             Para 13
C     [2014] 10 SCR 426             relied on             Para 14
      [1973] 2 SCR 684              relied on             Para 15
      [2013] 10 SCR 466             relied on             Para 16
      [1997] 1 SCR 846              relied on             Para 16
D
      [2005] 5 Suppl. SCR 740       relied on             Para 16
      [1996] 7 Suppl. SCR 221       held per-in-curiam Para 15
                                    and distinguished
      (2019) 9 SCC 435              overruled             Para 18
E     [2016] 3 SCR 221              held inapplicable     Para 22
      [1964] 7 SCR 49               relied on             Para 23
      [1999] 2 Suppl. SCR 258       relied on             Para 24
      [2005] 2 Suppl. SCR 448       relied on             Para 25
F
      (2009) 14 SCC 16              relied on             Para 26
      [2010] 4 SCR 422              relied on             Para 26
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2904
      of 2020.
G           From the Judgment and Order dated 13.03.2018 of the High Court
      of Punjab and Haryana at Chandigarh in CR No. 1602 of 2018.
            Manoj Swarup, P. S. Patwalia, Sr. Advs., Ankit Swarup, Naveen
      Kumar, Jawad Tariq, Neelmani Pant, Ms. Vidisha Swarup, Kulvinder
      Singh Kohli, Ms. Meenakshi Midha, Kapil Midha, Ms. Abhivandana
H
      M/S EXL CAREERS AND ANOTHER v. FRANKFINN                                293
           AVIATION SERVICES PRIVATE LIMITED

Chowdhury, Ms. Pritika Juneja, Amandeep Singh Bhullar, Chander                A
Shekhar Ashri, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      NAVIN SINHA, J.
      1. Leave granted.                                                       B
       2. The present appeal has been placed before us on a reference
by a two Judge Bench opining a perceived conflict between two Division
Bench decisions in Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502
and Oil and Natural Gas Corporation Ltd. v. Modern Construction
& Co., (2014) 1 SCC 648. The question of law we are required to answer        C
is that if a plaint is returned under Order VII Rule 10 and 10A of the
Code of Civil Procedure 1908, (hereinafter called as “the Code”) for
presentation in the court in which it should have been instituted, whether
the suit shall proceed de novo or will it continue from the stage where it
was pending before the court at the time of returning of the plaint. The
order of reference also leaves it open for consideration if the conduct of    D
the appellant disentitles it to any relief notwithstanding the decision on
the issue of law.
       3. The respondent filed a suit for recovery against the appellant
arising out of a franchise agreement dated 24.03.2004, before the Civil
Judge (Sr. Division) at Gurgaon. In view of the exclusion clause in the       E
agreement, the plaint was returned holding that the court at Gurgaon
lacked territorial jurisdiction and that the court at Delhi alone had
jurisdiction in the matter. The High Court by the impugned order dated
13.03.2018 has held that the suit at Delhi shall proceed from the stage at
which it was pending at Gurgaon before return of the plaint and not de        F
novo. Aggrieved, the appellant preferred the present appeal. Further
proceedings were stayed on 13.07.2018 culminating in the order of
reference.
       4. Shri Manoj Swarup, learned senior counsel appearing on behalf
of the appellant, submitted that there is no conflict between the decisions
                                                                              G
in Joginder Tuli (supra) and Modern Construction (supra) requiring
consideration by a larger Bench. The latter lays down the correct law
that the suit will have to proceed de novo at Delhi and cannot be continued
from the earlier stage at Gurgaon. Joginder Tuli (supra) cannot have
any precedential value not being based on consideration of the law, but
having been passed more in the facts of that case.                            H
294             SUPREME COURT REPORTS                            [2020] 6 S.C.R.


A            5. Shri Swarup submitted that the High Court erred in not
      appreciating that it was not exercising transfer jurisdiction under Section
      24 of the Code. The plaint could be returned at any stage of the suit
      under Order VII Rule 10 and 10A. The fact that the pleadings and
      evidence may have concluded before the Gurgaon court was
      inconsequential. The suit was filed on 06.01.2011. The appellant had
B
      preferred the objection under Order VII Rule 10 promptly on 26.08.2011.
      Order XVIII Rule 15 also could not be invoked in view of the nature of
      jurisdiction conferred under Rule 10 for return of the plaint. Rule 10A is
      only a sequitur with regard to the procedure to be followed for the
      same. It cannot be interpreted as providing for continuation of the suit.
C     The High Court in the first revisional order dated 05.09.2017 had rejected
      the objection with regard to the advanced stage at which the suit was at
      Gurgaon. The mere use of the words ‘return the file’ are irrelevant and
      cannot be construed as enlarging the scope of jurisdiction under Order
      VII Rule 10. The order attained finality as no appeal was preferred
      against the same. Significantly under Order VII Rule 10A fresh summons
D
      had to issue upon presentation of the plaint before the court of competent
      jurisdiction. Shri Swarup in this context referred to Order IV Rule 1 with
      regard to the institution of the suit by presentation of a plaint and issuance
      of summons under Order V Rule 1 to contend that under Rule 10A
      when summons are issued by the new court where the plaint is presented
E     the proceedings go back to the inception of the suit by institution.
            6. In support of his submission that the suit has necessarily to
      proceed de novo on return of the plaint, he relied upon Ramdutt
      Ramkissen Dass vs. E.D. Sassoon & Co., AIR 1929 PC 103; Amar
      Chand Inani vs. The Union of India, (1973) 1 SCC 115; Harshad
F     Chimanlal Modi (II) vs. DLF Universal Ltd., (2006) 1 SCC 364 and
      Hasham Abbas Sayyad vs. Usman Abbas Sayyad, (2007) 2 SCC 355,
      to submit that the institution of the suit at Gurgaon being coram non
      judice the suit had necessarily to commence de novo at Delhi.
            7. Shri P.S. Patwalia, learned senior counsel appearing for the
G     respondent, submitted that the special leave petition suffers from
      suppression of material facts. Had the materials placed in the counter
      affidavit been brought to the attention of the court perhaps the special
      leave petition may not have been entertained. The appellant in his first
      objection did not raise the ground under the exclusion clause 16B of the
      agreement but limited it to the grounds that no business was carried on
H
     M/S EXL CAREERS AND ANOTHER v. FRANKFINN                                  295
 AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]

at Gurgaon and that defendant no.2 did not reside there also. The first        A
order of rejection dated 12.03.2015 has not been annexed to the appeal.
Thereafter jurisdiction was framed as a preliminary issue which was
again decided in favour of the respondent on 06.09.2016. The revision
by the appellant having been allowed by the High Court on 05.09.2017,
it did not take any steps for having the plaint retuned to the respondent.
                                                                               B
It was left for the respondent to file a fresh application under Order VII
Rule 10 praying for transfer of the entire judicial file from Gurgaon to
Delhi considering the advanced stage of the suit which was allowed by
the Civil Judge and affirmed in the impugned order by the High Court.
        8. Shri Patwalia next submitted that the High Court on 05.09.2017
had consciously directed for return of the file. Nothing precluded the         C
High Court from directing the return of the plaint. The Trial Court has
justifiably reasoned that the order of the High Court for return of the file
was based on the premise of the advanced stage of the suit for
continuation of the same at Delhi, as otherwise it would be a travesty of
justice if the suit was to proceed de novo at Delhi. The High Court            D
correctly affirmed the same by the impugned order. The present was
not a case where the Gurgaon court lacked complete jurisdiction. The
respondent has been non suited at Gurgaon only in view of the
exclusionary clause at 16B of the franchise agreement. It shall be a
question on the facts of each case, if the trial should proceed afresh or
continue from the earlier stage and the matter could not be put in a           E
straight jacket. The present being a case of overlapping jurisdictions it
would be a travesty of justice and will cause great injustice and prejudice
to the respondent if the suit is directed to proceed de novo at Delhi. Shri
Patwalia relied upon R.K. Roja vs. U.S. Rayudu, (2016) 14 SCC 275
and Oriental Insurance Company Ltd. vs. Tejparas Associates and                F
Exports Pvt. Ltd., (2019) 9 SCC 435, to submit that the latter also follows
Joginder Tuli (supra).
      9. We have considered the submission on behalf of the parties
and considered the materials on record. The franchise agreement was
executed between the parties at New Delhi on 24.03.2004 for running            G
courses in Aviation, Hospitality and travel Management at Meerut in
accordance with the prescriptions and standards of the respondent.
Clause 16B of the agreement stipulated as follows:
      “B. JURISDICTION
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296             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A           Only Courts in Delhi shall have exclusive jurisdiction to settle all
            disputes and differences arising out of the AGREEMENT, whether
            during its term or after expiry/earlier termination thereof.”
              10. The respondent on 06.01.2011 instituted a suit before the Civil
      Judge (Sr. Division) at Gurgaon against the appellant for recovery of
B     Rs.23,11,190/-. The appellant filed an application under Order VII Rule
      10 CPC on 26.08.2011 contending that the Gurgaon court had no territorial
      jurisdiction as it did not carry on any business within its jurisdiction and
      neither was it a resident, requiring the plaint to be returned to the
      respondent. No objection was raised under clause 16B of the agreement.
      The Civil Judge, Gurgaon on 12.03.2015 rejected the objection opining
C     that it could not be decided summarily and was required to be framed as
      a preliminary issue. The appellant then filed its written statement and
      the respondent its replication. Issues in the suit were framed on 01.10.2015
      inadvertently ignoring the earlier order leading to framing of the
      preliminary issue on 01.10.2015 with regard to jurisdiction. The appellant
D     offers no explanation why the objection under clause 16B of the
      agreement was not raised in its application dated 26.08.2011 under Order
      VII Rule 10 CPC.
             11. The Civil Judge Gurgaon by his order dated 06.09.2016 rejected
      the argument with regard to exclusive jurisdiction at Delhi under clause
E     16B of the Agreement. The High Court in revision on 05.09.2017 set
      aside the order of the Civil Judge dated 6.9.2016 holding that in view of
      clause 16B of the franchise agreement, the Gurgaon court lacked
      territorial jurisdiction directing return of the file. The submission of the
      respondent with regard to the advanced stage of the suit at Gurgaon
      was rejected. Prior thereto, the suit had made substantive progress as in
F     the meantime evidence of the parties had been closed and the matter
      has been fixed for final argument on 01.06.2017. We are of the considered
      opinion that the mere use of the words ‘return the file’ in the order dated
      05.09.2017 cannot enlarge the scope of jurisdiction under Order VII
      Rule 10 to mean that the High Court has directed so with the intention
G     for continuance of the suit. Firstly, that objection was expressly rejected.
      Secondly the order itself states that the file be returned under Order VII
      Rule 10 and 10A of the Code. Clearly what the High Court intended
      was the return of the plaint.
            12. Thereafter it was left for the respondent who moved an
H     application on 11.10.2017 before the Civil Judge at Gurgaon that in the
     M/S EXL CAREERS AND ANOTHER v. FRANKFINN                                   297
 AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]

peculiar facts of the case, the advanced stage at which the proceedings         A
were at Gurgaon, it would be in the interest of justice that the entire
judicial file be transferred to the court having jurisdiction at Delhi, which
was allowed by the Civil Judge Gurgaon on 14.02.2018 noticing that the
High Court in revision had directed for transfer of the file. In the fresh
revision preferred by the respondent against the order, the High Court
                                                                                B
by the impugned order dated 13.03.2018 declined to interfere and rejected
the contention of the appellant for a de novo trial at Delhi. We have
referred to the facts of the case with brevity to notice the conduct of the
parties and all other relevant aspects to be kept in mind while passing
final orders.
       13. It is no more res-integra that in a dispute between parties          C
where two or more courts may have jurisdiction, it is always open for
them by agreement to confer exclusive jurisdiction by consent on one of
the two courts. Clause 16B of the agreement extracted above leaves us
in no doubt that the parties clearly indicated that it was only the court at
Delhi which shall have exclusive jurisdiction with regard to any dispute        D
concerning the franchise agreement and no other court would have
jurisdiction over the same. In that view of the matter, the presentation of
the plaint at Gurgaon was certainly not before a court having jurisdiction
in the matter. This Court considering a similar clause restricting
jurisdiction by consent in Swastik Gases (P) Ltd. vs. Indian Oil Corpn.
Ltd., (2013) 9 SCC 32, observed as follows:                                     E

       “32. ….It is a fact that whilst providing for jurisdiction clause in
       the agreement the words like “alone”, “only”, “exclusive” or
       “exclusive jurisdiction” have not been used but this, in our view, is
       not decisive and does not make any material difference. The
       intention of the parties—by having Clause 18 in the agreement—           F
       is clear and unambiguous that the courts at Kolkata shall have
       jurisdiction which means that the courts at Kolkata alone shall
       have jurisdiction. It is so because for construction of jurisdiction
       clause, like Clause 18 in the agreement, the maxim expressio
       unius est exclusio alterius comes into play as there is nothing to       G
       indicate to the contrary. This legal maxim means that expression
       of one is the exclusion of another. By making a provision that the
       agreement is subject to the jurisdiction of the courts at Kolkata,
       the parties have impliedly excluded the jurisdiction of other courts.
       Where the contract specifies the jurisdiction of the courts at a
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298            SUPREME COURT REPORTS                            [2020] 6 S.C.R.


A           particular place and such courts have jurisdiction to deal with the
            matter, we think that an inference may be drawn that parties
            intended to exclude all other courts. A clause like this is not hit by
            Section 23 of the Contract Act at all. Such clause is neither
            forbidden by law nor it is against the public policy. It does not
            offend Section 28 of the Contract Act in any manner.”
B
            14. This was reiterated in State of West Bengal vs. Associated
      Contractors, (2015) 1 SCC 32, holding that presentation of the plaint in
      a court contrary to the exclusion clause could not be said to be proper
      presentation before the court having jurisdiction in the matter.
C            15. That brings us to the order of the reference to be answered
      by us. In Joginder Tuli (supra) the original court lost jurisdiction by
      reason of the amendment of the plaint. The Trial Court directed it to be
      returned for presentation before the District Court. This Court observed
      as follows:

D           “5. … 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
E           Court warranting interference.”
              To our mind, the observations are very clear that the suit has to
      proceed afresh before the proper court. The directions came to be made
      more in the peculiar facts of the case in exercise of the discretionary
      jurisdiction under Article 136 of the Constitution. We may also notice
F     that it does not take into consideration any earlier judgments including
      Amar Chand Inani vs. The Union of India (supra) by a Bench of
      three Honourable Judges. There is no discussion of the law either and
      therefore it has no precedential value as laying down any law.
             16. Modern Construction (supra), referred to the consistent
G     position in law by reference to Ramdutt Ramkissen Dass vs. E.D.
      Sassoon & Co., Amar Chand Inani vs. The Union of India,
      Hanamanthappa vs. Chandrashekharappa, (1997) 9 SCC 688,
      Harshad Chimanlal Modi (II) (supra) and after also noticing Joginder
      Tuli (supra), arrived at the conclusion as follows:
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     M/S EXL CAREERS AND ANOTHER v. FRANKFINN                                    299
 AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]

      “17. Thus, in view of the above, the law on the issue can be               A
      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 7 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
                                                                                 B
      exclude the period during 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     C
      concluded before the court having no competence to try the same.”
     Joginder Tuli (supra) was also noticed in Harshad Chimanlal
Modi (II) (supra) but distinguished on its own facts.
       17. We find no contradiction in the law as laid down in Modern
Construction (supra) pronounced after consideration of the law and               D
precedents requiring reconsideration in view of any conflict with Joginder
Tuli (supra). Modern Construction (supra) lays down the correct law.
We answer the reference accordingly.
       18. We regret our inability to concur with Oriental Insurance
Company Ltd. (supra), relied upon by Mr. Patwalia, that in pursuance             E
of the amendment dated 01-02-1977 by reason of insertion of Rule 10A
to Order VII, it cannot be said that under all circumstances the return of
a plaint for presentation before the appropriate court shall be considered
as a fresh filing, distinguishing it from Amar Chand Inani (supra). The
attention of the Court does not appear to have been invited to Modern            F
Construction (supra) and the plethora of precedents post the amendment.
       19. Order VII Rule 10-A, as the notes on clauses, indicates was
inserted by the Code of Civil Procedure (Amendment) Act, 1976 (with
effect from 01.02.1977) for the reason:
      “New Rule 10-A is being inserted to obviate the necessity of               G
      serving summonses on the defendants where the return of plaint
      is made after the appearance of the defendant in the suit.”
      Also, under sub-rule (3) all that the Court returning the plaint can
do, notwithstanding that it has no jurisdiction to try the suit is:
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300            SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A           “10A. Power of Court to fix a date of appearance in the
            Court where plaint is to be filed after its return.
            xxx xxx xxx
            (3) Where an application is made by the plaintiff under sub-rule
            (2), the Court shall, before returning the plaint and notwithstanding
B           that the order for return of plaint was made by it on the ground
            that it has no jurisdiction to try the suit,—
            (a) fix a date for the appearance of the parties in the Court in
            which the plaint is proposed to be presented, and

C           (b) give to the plaintiff and to the defendant notice of such date
            for appearance.”
             20. The language of Order VII Rule 10-A is in marked contrast to
      the language of Section 24(2) and Section 25(3) of the Code of Civil
      Procedure which read as under:
D           “24. General power of transfer and withdrawal.
            xxx xxx xxx
            (2) Where any suit or proceeding has been transferred or
            withdrawn under sub-section (1), the Court which is thereafter to
            try or dispose of such suit or proceeding may, subject to any special
E           directions in the case of an order of transfer, either retry it or
            proceed from the point at which it was transferred or withdrawn.
            25. Power of Supreme Court to transfer suits, etc.
            xxx xxx xxx
F           (3) The Court to which such suit, appeal or other proceeding is
            transferred shall, subject to any special directions in the order of
            transfer, either retry it or proceed from the stage at which it was
            transferred to it.”
             21. The statutory scheme now becomes clear. In cases dealing
G     with transfer of proceedings from a Court having jurisdiction to another
      Court, the discretion vested in the Court by Sections 24(2) and 25(3)
      either to retry the proceedings or proceed from the point at which such
      proceeding was transferred or withdrawn, is in marked contrast to the
      scheme under Order VII Rule 10 read with Rule 10-A where no such
      discretion is given and the proceeding has to commence de novo.
H
     M/S EXL CAREERS AND ANOTHER v. FRANKFINN                                 301
 AVIATION SERVICES PRIVATE LIMITED [NAVIN SINHA, J.]

      22. For all these reasons, we hold that Oriental Insurance Co.          A
(supra) does not lay down the correct law and over-rule the same. R.K.
Roja (supra) has no direct relevance to the controversy at hand.
       23. That brings us to a question with regard to the nature of the
order to be passed in the facts and circumstances of the present case.
In Penu Balakrishna Iyer vs. Ariya M. Ramaswami Iyer, AIR 1965                B
SC 195, this court observed as follows:
      “7. …The question as to whether the jurisdiction of this Court
      under Article 136 should be exercised or not, and if yes, on what
      terms and conditions, is a matter which this Court has to decide
      on the facts of each case.”                                             C
      24. In Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396 it was
observed as follows :-
      “47….It is true that the jurisdiction under Article 136 of the
      Constitution is a discretionary jurisdiction and notwithstanding that
      a judgment may not be wholly correct or in accordance with law,         D
      this Court is not bound to interfere in exercise of its discretionary
      jurisdiction….”
       25. In ONGC Ltd. vs. Sendhabhai Vastram Patel, (2005) 6 SCC
454, it was observed:
                                                                              E
      “23. It is now well settled that the High Courts and the Supreme
      Court while exercising their equity jurisdiction under Articles 226
      and 32 of the Constitution as also Article 136 thereof may not
      exercise the same in appropriate cases. While exercising such
      jurisdiction, the superior courts in India may not strike down even
      a wrong order only because it would be lawful to do so. A               F
      discretionary relief may be refused to be extended to the appellant
      in a given case although the Court may find the same to be justified
      in law.”
       26. The nature of jurisdiction under Article 136 of the Constitution
was again considered in Shin-Etsu Chemical Co. Ltd. (2) vs. Vindhya           G
Telelinks Ltd., (2009) 14 SCC 16. In Karam Kapahi vs. Lal Chand
Public Charitable Trust, (2010) 4 SCC 753, it was observed as follows:
      “65. The jurisdiction of this Court under Article 136 of the
      Constitution is basically one of conscience. The jurisdiction is
                                                                              H
302             SUPREME COURT REPORTS                            [2020] 6 S.C.R.


A            plenary and residuary in nature. It is unfettered and not confined
             within definite bounds. Discretion to be exercised here is subject
             to only one limitation and that is the wisdom and sense of justice
             of the Judges (see Kunhayammed vs. State of Kerala, (2000) 6
             SCC 359). This jurisdiction has to be exercised only in suitable
             cases and very sparingly as opined by the Constitution Bench of
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             this Court in Pritam Singh vs. State, AIR 1950 SC 169…”
             27. In the peculiar facts and circumstances of the case, because
      the appellant did not raise the objection under clause 16B of the agreement
      at the very first opportunity, the first order of rejection attained finality,
      the objection under clause 16B was raised more as an after-thought, the
C     second application under Order VII Rule 10 had to be preferred by the
      respondent, that pleadings of the parties have been completed, evidence
      led, and that the matter was fixed for final argument on 03.07.2017, we
      are of the considered opinion that despite having concluded that the
      impugned order is not sustainable in view of the law laid down in the
D     Modern Construction (supra), in exercise of our discretionary jurisdiction
      under Article 136 of the Constitution and in order to do complete and
      substantial justice between the parties under Article 142 of the
      Constitution in the peculiar facts and circumstances of the case
      nonetheless we decline to set aside the impugned order of the High
      Court dated 13.03.2018.
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             28. The appeal stands disposed of.



      Kalpana K. Tripathy                                         Appeal disposed of.
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