ONGC LTD.versusM/S. MODERN CONSTRUCTION AND CO.

                        [2013] 10 S.C.R. 466

A                            ONGC LTD.
                                   v.
            M/S. MODERN CONSTRUCTION AND CO.
              (Civil Appeal Nos. 8957-8958 of 2013)
                         OCTOBER 7, 2013
B
          [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

         Code of Ci~i/ Procedure, 1908- Or. VII r.10- Suit returned
  - To be presented before court of competent jurisdiction - The
C suit before court of competent jurisdiction decreed directing
  the defendant to pay interest on decretal amount from the date
  of filing of the suit - Payment of interest from the date of filing
  of the suit before the court of competent jurisdiction - Claim
  of interest by decree-holder from the date of the suit filed
D before the court, not having jurisdiction - Held: Once the plaint
  was returned under Order VII r.10 and presented before the
  court of competent jurisdiction, subsequent suit was a fresh
  suit and not continuation of the previous suit - Decree-holder
  cannot be permitted to take advantage of his own mistake of
E instituting suit before wrong court - Hence, not entitled to
  interest from the date of filing of the suit before wrong court.

        Maxim - 'Actus Curiae Neminum Gravabit' - Applicability.

        Respondent-plaintiff filed suits in the year 1986 in the
F civil court at 'Mehsana' which were decreed. But the order
  of the civil court was set aside by High Court in appeal
  on the ground that the civil court at Mehsana had no
  territorial jurisdiction to entertain the suits. The High
  Court directed the civil court at 'Mehsana' to return the
G plaints to the respondent, so that the same could be filed
  before the appropriate court having jurisdiction.
  Thereafter, the respondent filed the suits in competent
  court at Surat on 3.2.1999. The suits were allowed
  holding that the respondent was entitled to decretal
H                               466
ONGC LTD. v. MIS. MODERN CONSTRUCTION AND 467
                     CO.
amount with a future interest@ 12% per annum from the             A
date of filing of the suit till realization. The appellant paid
the decretal amount with interest from the date the
respondent had presented the plaints before the Court of
competent jurisdiction i.e. 3.2.1999. The respondent filed
Special Execution Petition claiming interest for the period       B
1986 to 1999 i.e. the period when the suit remained
pending before the court at Mehsana which had no
jurisdiction. Executing court dismissed the petition.
Appeal against the same was dismissed. However, the
High Court by the impugned judgment held that the                 c
respondent was entitled to interest from the date of
institution of the suit at Mehsana Court. Hence the present
appeal.
    Allowing the appeals, the Court
                                                                  D
     HELD: 1. 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      E
plaintiff is entitled to 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        F
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. [Para 13]
[476-E-G]
                                                                  G
     Ramdutt Ramkissen Dass vs. E.D. Sassoon and Co.
AIR 1929 PC 103;Sri Amar Chand lnani vs. Union of India
AIR 1973 SC 313: 1973 (2) SCR 684; Hanamanthappa and
Anr. vs. Chandrashekharappa and Ors. AIR 1997 SC 1307:
1997 (1) SCR 846; Harshad Chimanla/ Modi (II) vs. D.L.F.          H
    468     SUPREME COURT REPORTS              [2013] 10 S.C.R.

A Universal Ltd. and Anr. AIR 2006 SC 646: 2005 (5) Suppl.
  SCR 740 - relied on.

        Joginder Tuli vs. S.L. Bhatia and Anr. (1997) 1 SCC 502:
    1996 (7) Suppl. SCR 221 • distinguished.
B      2. 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 Mehsana to
  return the plaint. The High Court while passing the order
C 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. Once
  the plaint was presented before the Civil Court at Surat,
D 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 of instituting the suit before
  a wrong court. Therefore, the judgment and order
E impugned cannot be sustained in the eyes of law. [Paras
  6, 17 and 19] [473-F; 477-H; 478-A]
      3. In the instant case, a copy of the decree has not
  been filed by either of the parties. The judgment and order
F dated 21.9.2006 shows 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
G man, comes into play. [Para 15] [477-C-D]
      Jayalakshmi Coelho vs. Oswald Joseph Coelho AIR
  2001 SC 1084: 2001 (2) SCR 207; Bhagwati Developers
  Private Ltd. vs. Peerless General Finance Investment
H Company Ltd. and Ors. AIR 2013 SC 1690: 2013 (5l sr.r
ONGC LTD. v. MIS. MODERN CONSTRUCTION AND 469
                     CO.
455; Bhartiya Seva Samaj Trust Tr. Pres. and Anr. vs.         A
Yogeshbhai Ambalal Patel and Anr. AIR 2012 SC 3285: 2012
(7) SCR 1054 - relied on.

    4. The Executing Court cannot go behind the decree.
Thus, in absence of any challenge to the decree, no           8
objection can be raised in execution. [Para 14) [476-H;
477-A]

      Bhawarlal Bhandari vs. Universal Heavy Mechanical
Lifting Enterprises AIR 1999 SC 246: 1998 (3) Suppl. SCR
331; Dhurandhar Prasad Singh vs. Jai Prakash University       c
and Ors. AIR 2001 SC 2552: 2001 (3) SCR 1129; Rajasthan
Financial Corpn. vs. Man Industrial Corpn. Ltd. AIR 2003 SC
4273; Balvant N. Viswamitra and Ors. vs. Yadav Sadashiv
Mule (Dead) Thru. Lrs. and Ors. AIR 2004 SC 4377: 2004
(3) Suppl. SCR 519; Kanwar Singh Saini vs. High Court of      D
Delhi (2012) 4 SCC 307: 2011 (15) SCR 972 - relied on.
                    Case Law Reference:
    AIR 1929 PC 103             relied on        Para 7
    1973 (2) SCR 684            relied on        Para 8       E
    1997 (1) SCR 846            relied on        Para 10
    1996 (7) Suppl. SCR 221     distinguished    Para 10
    2005 (5) Suppl. SCR 740     relied on        Para 11
                                                              F
    1998 (3) Suppl. SCR 331     relied on        Para 14
    2001 (3) SCR 1129           relied on        Para 14
    AIR 2003   Sc 4273          relied on        Para 14
    2004 (3) Suppl. SCR 519     relied on        Para 14      G
    2011 (15) SCR 972           relied on       Para 14
    2001 (2) SCR 207            relied on       Para 15
    2013 (5)   sec 455          relied on       Para 15
    2012 (7) SCR 1054           relied on       Para 15       H
    470      SUPREME COURT REPORTS            (2013] 10 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8957-8958 of 2013.

         From the Judgment and Order dated 10.12.2010 of the
    High Court of Judicature of Gujarat at Ahmedabad in Special
    Civil Application No. 5036 of 2010 with Special Civil
8
    Application No. 5037 of 2010.

        Parag P. Tripathi, Nishant Menon, Kavita Sarin, Kunal
    Verma for the Appellant.

c       Santosh Krishnan, Nikhil Goel, Marsook Bafaki, Naveen
    Goel for the Respondent.

          The Judgment of the Court was delivered by

       DR. B.S. CHAUHAN, J. 1. These appeals have been
D preferred against the impugned judgment and order dated
  10.12.2010 passed by the High Court of Gujarat atAhmedab<Jd
  in Special Civil Application Nos.5036-5037 of 2010, reversing
  and setting aside the order dated 12.3.2010, passed by the
  Addi. District Judge, Fast Track Court, Surat in Misc. Civil
E 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.

F        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
G 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
H recover the outstanding dues from the appellant.
ONGC LTD. v. M/S. MODERN CONSTRUCTION AND 471
          CO. [DR. B.S. CHAUHAN, J.]
     B. The Civil Court vide judgment and decree dated                 A
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
                                                                       8
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).1lerefore, the said
judgment and decrees passed in the civil suits were set aside          C
and the Civil Court at 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        D
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                 E
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 Addi. Senior Civil Judge and made the payment of decretal          F
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           G
Special Execution Petition Nos. 17 and 18 of 2007 on 5.3.2007
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                 H
    472       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   ~bserving 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
8
    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
C 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.

0         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 Court which had no territorial
E   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
F   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
G   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
H   (hereinafter referred to as the 'Limitation Act') and the court fees
 ONGC LTD. v. MIS. MODERN CONSTRUCTION AND 473
          CO. [DR. B.S. CHAUHAN, J.]
paid earlier may be adjusted but by no stretch of imagination       A
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.                                                    B

     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           C
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      D
said judgment and order by filing an application under Section
152 CPC. Therefore, no interference is called for and the
appea-ls are liable to be dismissed.

      5. We have considered the rival submissions made by           E
 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
                                                                    F
,provisions of Order VII Rule 10 CPC. The relevant part of the
 order reads as under:

     "Therefore, the impugned judgments and decrees in all the
     three appeals are allowed only on the limited ground           G
     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 0. 7, R 1O of the CPC. Therefore,        H
    474       SUPREME COURT REPORTS                   [2013] 10 S.C.R.


A         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
B         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
c         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)
D       7. In Ramdutt Ramkissen Dass v. £.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
E         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)
F
       8. In Sri Amar Chand lnani 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
G 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.
H
ONGC LTD. v. MIS. MODERN CONSTRUCTION AND 475
         CO. [DR. B.S. CHAUHAN, J.]
     9. In Hanamanthappa & Anr. v. Chandrashekharappa & A
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:                                B

     "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."
                                                                     c
      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            D
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        s
Court and proceeded with from the stage on which it v.J"aS
 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         F
     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."                                       G

     11. This Court in Harshad Chimanla/ 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 lnani
(supra) and distinguished the case in Joginder Tuli (supra)          H
    476       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A observing that:

          '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
B
          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
C 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
D 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
E 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 which he prosecuted the
F 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
G 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
H decree. Thus, in absence of any challenge to the decree, no
ONGC LTD. v. M/S. MODERN CONSTRU~TION AND 477
          CO. [DR. 8.S. CHAUHAN, J.]
objection can be raised in execution. (Vide: Bhawarlal Bhandari   A
v. Universal Heavy Mechanical Lifting Enterprises Al R 1999
SC 246; Dhurandhar Prasad Singh v. Jai Prakash University
& Ors., AIR 2001 SC 2552; Rajasthan Financial Corpn. v.
Man Industrial Cotpn. Ltd., AIR 2003 SC 4273; Balvant N.
Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Thru. Lrs.        B
& 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 that the plaints were received and registered C
 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: D
_Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC
 1OB4; and Bhagwati Developers Private Ltd. v. Peerless
 General Finance Investment Company Ltd. & Ors., AIR 2013
 SC 1690).
                                                                  E
       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        F
     at any forum, what to talk of a Writ Court, as explained
     by the legal maxim 'allegans suam turpitudinem non est
     audiendus'. If a paftY 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    G
     'Commodum ex injuria sua non habere debet'; and
     'nullus commodum 9apere 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         H
    478      SUPREME COURT REPORTS                    [2013) 10 S.C;R ..


A 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 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
B 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
C   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
D   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
E   been reiterated that the respondent cannot be allowed to take
    advantage of the words nfrom 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 now claiming interest for
F   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
G   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.
H
ONGC LTD. v. MIS. MODERN CONSTRUCTION AND 479
         CO. [DR. B.S. CHAUHAN, J.]
      19. We are of the considered view that once the plaint was   A
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         B
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 Trial Executing Court as well as of the
Appellate Court are restored. There shall be no order ~s to        C
costs.

K.K.T.                                       Appeals allowed.