Abdul Gani vs A.K. Majahiruddin Ahmad

Anil K. Sen, J.—This is a revisional application at the instance of the Defendant in a suit for ejectment.

In this application the Petitioner challenges an order dated April 29, 1977, passed by the learned Munsif, Second Court at Alipore, in Title Suit No. 233/73 whereby the learned Munsif overruling the Defendant''s objection as to jurisdiction dismissed his petition dated April 25, 1977. It would be necessary to refer to the facts lying in the background which may shortly be stated as follows:

The Plaintiff opposite party filed the aforesaid suit on June 25, 1973, praying for a decree for eviction as against the Defendant-Petitioner from the suit premises situate within P.S. Beniapukur, dist. 24-Parganas. It now appears that P.S. Beniapukur falls within the territorial jurisdiction of the Munsif at Sealdah though the same is contiguous to P.S. Karaya which falls within the jurisdiction of the learned Munsif at Alipore. It is obvious that the Plaintiff made a mistake in filing the suit in the Court of the learned Munsif at Alipore instead of filing the same in the Court of the learned Munsif at Sealdah--both, however, falling within the same district. The Defendant-Petitioner filed his written statement on June 27, 1974, but no objection as to the lack of jurisdiction of the Court in which the suit had been filed was taken in this written statement. It is also not in dispute that several proceedings were gone into since then and the suit was ultimately taken up for actual hearing. After some witnesses were examined and documents marked as exhibits in course of actual hearing, the Petitioner filed a petition dated April 25, 1977, raising an objection that the Court had not the jurisdiction to entertain the suit since the suit property is situate within P.S. Beniapukur outside the territorial jurisdiction of the learned Munsif at Alipore.

This objection was overruled by the learned Munsif on the view that Sealdah being within the district of 24-Parganas and the division for determination of territorial jurisdiction being merely administrative, the objection as preferred by the Defendant cannot be entertained, more so, when the parties are not likely to suffer any prejudice.

Feeling aggrieved by this order, the Defendant-Petitioner moves this Court in revision and Mr. Shrivastava appearing in support of this revisional application, has strongly contended that a Rule should, be issued on the opposite party to show cause why the said order should not be set aside since the view taken by the learned Munsif in rejecting the Defendant''s petition dated April 25, 1977, is clearly erroneous and that the said Court had no jurisdiction to entertain the suit. The point sought to be raised by Mr. Shrivastava is no doubt a point of law and of some importance, but as on anxious consideration of the contentions put forward by Mr. Shrivastava I have come to the conclusion that the objection had been rightly overruled by the learned Munsif, I am rejecting this application in revision in limine.

Though the learned Munsif in his order had not decided in clear terms as to whether he had the territorial jurisdiction or not and though he had proceeded more or less on the view that the division effected for determination of the territorial jurisdiction are merely for administrative purposes, I, however, feel no hesitation in accepting the contention of Mr. Shrivastava that the learned Munsif had not the territorial jurisdiction to entertain the suit. Such territorial jurisdiction was prescribed by the Government notification No. 63145 dated August 28, 1962, made u/s 13(1) of the Bengal, Agra and Assam Civil Courts Act, 1887. Territorial limits having thus been determined by the statutory notification, it cannot but be held that the learned Munsif had not the territorial jurisdiction to entertain the suit. But, in my view, his order can be sustained on another ground, viz. on application of Section 21 of the CPC or of principles analogous thereto.

Section 21 of the Code lays down:

No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

In the present case, on the facts set out hereinbefore there can be no dispute that the Defendant-Petitioner had not raised this objection as IO want of territorial jurisdiction of the Court at the earliest possible opportunity and certainly not before the issues were settled. As has been pointed out, he did not raise any such objection in his written statement and he allowed the suit to proceed to the stage of hearing and in the midst of hearing he raised this objection.

In such circumstances, it must be held that he did, waive the objection as to want of territorial jurisdiction of the Court and as such, he is precluded from raising such an objection at that stage of the I suit.

Mr. Shrivastava, however, contends that if there is inherent lack of jurisdiction, the same cannot be conferred upon the Court by consent nor any waiver on their part can make up for such lack or defect of jurisdiction. Reliance is placed by Mr. Shrivastava on the decision of this Court in the case of Kunja Mohan Chakravarty v. Manindra Mohan Roy (1922) C.W.N. 542. Secondly, Mr. Shrivastava contends that Section 21 in have no application when the objection is raised before the trial Court and reliance is placed on the following annotation of Mulla on Section 21, namely:

The section does not refer to the Court of first instance and in the Court of first instance the objection may be taken at any time before the final judgment.

So far as the first point raised by Mr. Shrivastava is concerned it must, now, be held that the lack of territorial jurisdiction coming within the purview of Section 21 of the Code is not considered as inherent lack of jurisdiction. The decision of this Court in the case of Kunja Mohan v. Manindra (Supra) is based on the Privy Council decision in the case of Ledgard and another v. Bull which was considered and explained by the Supreme Court in the case of Seth Hiralal Patni Vs. Sri Kali Nath, where it has been expressly laid down that

the objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived.

So far as the second point raised by Mr. Shrivastava is concerned, the annotation relied on by him no doubt supports his contention. But the annotation rests on two decisions of the Privy Council in the cases of (i) Maha Prasad v. Ramani Mohan (1914) L.R. 41 IndAp 197 and (ii) Ramlal v. Kishanchand (1924) L.R. 51 IndAp 72. I have carefully read and re-read the two Privy Council decisions in deference to the high authority of Mulla on whose annotation Mr. Shrivastava relies. But I have found no indication in these two decisions of the Privy Council from which one can deduce such an extreme proposition that an objection as to the want of jurisdiction can be raised before the Court of first instance at any time before the final judgment.

In the case of Maha Prasad v. Ramani Mohan (1914) L.R. 41 IndAp 197 the suit was brought in the Court of the Subordinate Judge at Bhagalpur to enforce a mortgage in respect of properties situate partly in Bhagalpur and partly in Santhal Parganas. It was found that the suit in regard to the Santhal Parganas properties could not have been entertained by any civil court in view of provisions of the Santhal Parganas Act, 1855 and the Santhal Parganas Justice Regulation, 1893. In such circumstances, the objections to the want of jurisdiction of the civil court was upheld by the Privy Council and the suit was dismissed. That was not a case of lack of territorial jurisdiction. On the other hand, it was a case of a statutory bar of jurisdiction of the civil court under the provision of the said Regulation. In any event, there is nothing in this decision of the Privy Council to support the view that an objection contemplated by Section 21 of tie Code can be raised before the trial Court at any time before final judgment.

In the other case of Ramlal v. Kishanchand (Supra) an objection as to want of territorial jurisdiction was allowed by the Privy Council on a clear finding that such an objection was raised initially in the Court of first instance. In this decision also the Privy Council was not considering any question as to whether a Defendant can at any time raise an objection as to want of jurisdiction before the Court of first instance. In that view, this decision of the Privy Council also docs not appear to me to be any authority for the proposition sought to be contended for by Mr. Shrivastava.

Section 21 of the Code came up for consideration by the Supreme Court in three cases. It has now been held by the Supreme Court that the principle underlying Section 11 of the Suits Valuation Act, 1887 and Section 21 of the Code of Civil Procedure, is to treat objection as to jurisdiction both territorial and pecuniary as technical which can be waived. Reference may be made to the decisions of the Supreme Court in the cases of Kiran Singh and Others Vs. Chaman Paswan and Others, and Seth Hiralal Patni Vs. Sri Kali Nath, . Even on the aforesaid two decisions of the Supreme Court it could still be contended, as contended by Mr. Shrivastava, that though the appellate Court and the Court of revision can disallow an objection as to lack of jurisdiction in circumstances laid down by Section 21 of the Code, is it permissible for the Court of first instance to do so? It has been contended by Mr. Shrivantava that the two decisions of the Supreme Court referred to above are no authority for a proposition that (he trial Court too can disallow such an objection only because it bad been raised at a late stage as in the present case. No doubt, Section 21 begins with the words that "no such objection shall be allowed by the appellate and the revisional Court", but nonetheless the other part of the provision has to be given effect to when it lays down as a condition precedent that such an objection must be taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. If the Court of first instance be held to be incompetent to disallow any such objection, then this part of the provision in Section 21 may be rendered nugatory. In that event the Defendant may very well sit over the objection until the last stage and then raise the objection and when the trial Court is bound to give effect to the objection, Such objection needs no further to be taken before the appellate or the revisional Court. The last decision of the Supreme Court, which I presently refer to, in my view, enlightens us on the point at issue to a great extent. This is the case of The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, . In this case the trial Court had not the territorial jurisdiction to entertain the suit in view of the provision of Section 20 of the Code and an objection in that regard was raised but was overruled by the High Court the High Court taking the view that the Defendants waived the objection and conceded the jurisdiction of the trial Court in view of certain proceedings taken by them. The Supreme Court, however, found that there was no such waiver and the objection having been raised at the initial stage in the trial Court as the Court of first instance, was upheld. In this connection it was ruled by the Supreme Court:

Counsel for the Plaintiff-Respondent submitted that it was open to the Defendants to waive this objection and if they did so, they could not subsequently take the objection. This submission is well-founded. As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Code provides an exception and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver u/s 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 may be waived. Independently of this section, the Defendant may waive the objection and may be subsequently precluded from taking it.

Though it was observed that the waiver u/s 21 was limited to objections in the appellate and revisional Court, yet the Supreme Court also held that the same principles underlying Section 21 can be availed of and in further elucidating the point the Supreme Court went on to observe:

If the Defendant allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the Defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.

The last sentence, as aforesaid, is very instructive. It is, therefore, possible, to hold that a Defendant, who has not raised any objection as to want of territorial jurisdiction but has continued to participate in the proceedings of the suit without any protest, has waived the objection even if there has been no final judgment or order by the said Court. Such a plea, therefore, is clearly a plea to be raised in the Court of first instance. On the authority of this decision of the Supreme Court, therefore, I hold that even assuming that Section 21 does not refer to the Court of first instance and the said Court cannot avail of the said provision, still the said Court can certainly avail of the analogous principle independently of Section 21 and thus disallow an objection as to the want of territorial jurisdiction where the Defendant by his conduct can legitimately be considered to have waived the objection. On the facts of the present case, it is established beyond doubt that the Defendant did waive this objection when he participated in the suit throughout and did not raise the objection until the hearing itself had proceeded nearly to its end.

In my view, therefore, for the reasons aforesaid, the learned Munsif was right in disallowing the objection raised in the Defendant''s petition dated April 25, 1977 and no ground has been made out for interference by this Court in exercise of its revisional jurisdiction. I must also observe that the revisional jurisdiction being a part of my discretion, on the facts found there is no case for exercise of any discretion in favour of the Defendant-Petitioner in the present case.

In the result, the application fails and is dismissed.