Balwan Singh Huda vs Haryana State

S.D. Bajaj, J.—Plaintiff-appellant was posted as Clerk in the office of General Manager, Haryana Roadways, Rohtak, in the pay scale of Rs. 110-4-130/5-160/5-225. On September 1, 1978 he was to cross the first efficiency bar in his pay scale aforesaid raising his basic salary from Rs. 130/- to Rs. 135/- P.M. State Transport Controller, Haryana, did not sanction it to him on the basis of his service record. Similar orders were also passed on January 30, 1979, July 6, 1981 and October 13, 1981 while reviewing the similar situation arising for reconsideration during every subsequent year on September 1, 1979, September 1, 1980 and September 1, 1981 respectively. From Rohtak the plaintiff-appellant was transferred to Sonepat and therefrom to Karnal. While posted at Karnal plaintiff appellant filed civil suit No. 693 on February 21, 1984 before the learned trial court for declaration that the decisions repeatedly taken by the State Transport Controller in his crossing of efficiency bar cases were illegal. Holding that civil court had no toritorial jurisdiction to decide the matter, learned trial court dismissed the suit on February 5, 1986. Learned court of first appeal vide its assailed judgment dated July 18, 1986 ordered the plaint to be returned to the plaintiff appellant for being presented to the civil court of competent jurisdiction either at Rohtak or at Sonepat. Dissatisfied with the order of the learned court of first appeal, the plaintiff-appellant filed Regular Second Appeal No. 596 of 1987 in this Court.

Learned counsel for the plaintiff appellant has referred me to the provisions of section 21 of the Code of Civil Procedure, 1908 as amended in 1976 which read, "(1) 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. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction 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. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice." and urged that proceedings before the learned two courts below having not resulted in a failure of justice, the objection raised by the defendant-respondent before them for want of territorial jurisdiction in them to try and decide the cause should be over-ruled and the decision on facts recorded by the learned two courts below, of the plaintiff-appellant having proved his case before them in its entirety, should be given effect to by reversing the final conclusion of dismissal of suit into decree; after setting aside the order of return of plaint to plaintiff appellant for presenting it before the civil court of competent jurisdiction either at Rohtak or Sonepat where a part of the cause of action admittedly arose, passed by the learned court of first appeal against him on July 18, 1986.

The argument is wholly without merit. For repelling it a reference to clause (c) of section 20 and Rules 10 and 10A of order 7 of the CPC is called for. Necessary legal provisions read:

20 Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) xx xxx xxx xxx

(b) xx xxx xxx xxx

(c) the cause of action, wholly or in part, arises.

(1) Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation-For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the same of the party presenting it, and a brief statement of the reasons for returning it.

10A. (1) Where in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1) the plaintiff may make an application to the Court,-

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding 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

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearance is given under sub-rule (3),-

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.

It would thus appear that the objection regarding want of territorial jurisdiction in the learned trial court at Karnal having been raised at the initial stage, before the framing of the issues, learned trial court was obliged in law to return the plaint to plaintiff, appellant for being presented before the civil court of competent jurisdiction at Rohtak or Sonepat. Instead of doing so, learned trial court in its assailed judgment of February 5, 1986 wrongly dismissed the suit. Learned court of first appeal corrected the error vide its appellate judgment of July 18, 1986 and there is obviously no fallacy in the finding recorded by the learned court of first appeal in this regard which is duly affirmed.

The policy underlying actions 21 and 99 of the CPC and section 11 of the Suits Valuation Act is the same, namely, that where a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on the technical grounds unless it has resulted in a failure of justice. In the present case besides the objection regarding territorial jurisdiction having been raised at the initial stage, there has been a prejudice on merits to plaintiff-appellant himself because his suit was dismissed by the learned trial court. Learned court of first appeal did well in sustaining the objection for want of territorial jurisdiction in the learned trial court and ordering return of plaint to plaintiff-appellant so that he could, after production of adequate evidence, secure a fresh verdict on the merits of the case from the learned trial court of competent jurisdiction; wherein the plaint is refiled after withdrawal from the learned trial court at Karnal. There is thus no illegality or infirmity in the order passed by the learned court of first appeal on July 18, 1986.

In result, the appeal fails and is dismissed with costs. To avoid further delay in disposal of the case it is ordered that the plaintiff appellant shall comply with the direction given by the learned court of first appeal to him in its assailed order of July 18, 1986 till July 25, 1988.