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Judgment
B.S. Patil, J.—In this writ petition, petitioners axe challenging the order dated 02.02.2009 passed by XXIV Addl. City Civil & Sessions Judge, Bangalore City on I.A. No. II filed under Order VII Rule 10 in O.S. No. 7420/2008 seeking dismissal of the suit for want of jurisdiction.
Defendants 2 to 4 in the suit filed the said application seeking dismissal of the suit contending interalia that the Court at Bangalore had no jurisdiction to try the case. The court below has dismissed the application by the impugned order.
Petitioner No. 1 is the Institution of Engineers located at No. 8, Gokhale Road, Kolkata and is represented by its Secretary and Director General whereas petitioners 2 & 3 ate authorities concerned with the Karnataka State Centre. The 4th Petitioner is the Board of Scrutineers appointed for election of one Corporate Member to the Council for the Karnataka State Centre and also for election of Division-wise Corporate Members to the Committee of Karnataka State Centre.
Respondents 1 to 7 are plaintiffs 1 to 7 before the trial court. They have filed the suit O.S. No. 7420/2008 seeking declaratory and injunctive reliefs against the defendants. The declaratory reliefs sought are for a declaration to declare that the election process for election of one corporate member from Karnataka State Centre to the Council and election of Division-wise Corporate members to the committee of Karnataka State Centre held as per notices issued on 30.06.2008 is null and void. Another declaration sought is that constitution of the Committee by the Institution of Engineers, Gokhale Road, Kolkata vide letter dated 12.10.2008 is illegal and without authority of law and is contrary to the Bye-laws and Regulations of the Council of the Institution of Engineers (India). The Injunctive reliefs sought for by the plaintiffs are for a permanent injunction restraining the defendants from announcing the results of the elections. Mandatory injunction directing defendants No. 1 & 2 to conduct fresh elections for these elections is also prayed for.
Main contention of the plaintiffs/respondents herein is that election process initiated for electing the members to the Karnataka State Centre and to the Division-wise Corporate members to the Committee of Karnataka State Centre suffered from serious illegalities. As a result of these irregularities, it is urged, that the 1st defendant the Chairman of the Institution of Engineers (India), Bangalore was convinced of the irregularities in the election process and therefore, to maintain highest ethical standards of the Institution of Engineers and the democractic process, election process held to be illegal. According to the plaintiffs, the 1st defendant vide his letter addressed, in this regard, to the 4th defendant stated that fresh election process would be notified immediately as per the Bye-Laws and Regulations of the Institution of Engineers (India) and that action would be initiated into the illegalities. The 4th defendant without any authority or jurisdiction constituted a Committee consisting of 3 persons in older to examine the matter and take decision in the election process. The contention of the plaintiffs is that the 4th defendant had absolutely no power or authority to constitute such a Committee under the Bye-laws and Regulations, especially since the 1st defendant had already declared that the entire election process was illegal and null and void.
Defendants 2, 3 & 4 filed their written statement. They have raised a preliminary objection with regard to the jurisdiction of the Court at Bangalore to try the same. In paragraph 6 of the written statement, defendants have contended that in terms of Bye-Law No. 154 of the Institution of Engineers (India), the Court at Bangalore had no jurisdiction to adjudicate the matter. They further stated that the Bye-law being the basic document of the 2nd Defendant-Institution are binding on all the members including the plaintiffs since they are contractually bound by the said Bye-Law. In the light of such a stand taken in the written statement, defendants 2 to 4 also filed an application requesting the Court to return the plaint to the plaintiffs or to dismiss the suit for want of jurisdiction.
The Court below has dismissed the said application holding that cause of action for the Suit arose in Bangalore as all events relating to the cause of action happened at Bangalore and defendant Institution is also situated at Bangalore and hence it had jurisdiction to try the suit. The Court below has further stated that when a Court has jurisdiction to decide a suit, by virtue of a Bye-law the same cannot be taken away nor can it be ousted by way of consent of parties. It has, however, held that if two or more courts have jurisdiction to try the suit, it will be open to the parties to select a particular Forum and exclude the other Forum and the parties may agree between themselves that the suit should be brought in any one of those courts and not in the other courts, but, as it was not the case of the defendants that both the Courts at Bangalore and Kolkata have jurisdiction and that parties having opted only to institute the suit at Kolkata , only the Court at Kolkata had jurisdiction the Court has held that consideration of such question did not arise. The Court has only proceeded that since it was the case of the defendants that only courts at Kolkata had jurisdiction and the courts at Bangalore had no jurisdiction, the contention urged was found to be misconceived and therefore the application came to be dismissed.
In this writ petition, the petitioners have conceded that the Court at Bangalore has also got jurisdiction. It is contended by the defendants that the Court at Kolkata also has jurisdiction in view of the nature of the relief sought and as the registered office of the l8t petitioner - Institution of Engineers is located at Kolkata. It is urged that as per Section 20 of the CPC even the Court at Kolkata also has jurisdiction. It is further contended that in view of the fact that both the Courts at Kolkata and Bangalore have jurisdiction, in terms of Bye-Law No. 124 of the Bye-Laws of the Council. The Bye-law provide that an appropriate Court in Kolkata has jurisdiction to adjudicate any dispute between the Institution and a member of any Class involving interpretation or operation of the Bye-laws, Regulations of the Institution and decisions of the Council. Counsel further contends that it is the Bye laws which is the result of agreement between the parties that are binding on the members. Hence, as per Bye-law No. 124, the suit has to be necessarily instituted before the Court at Kolkata. In support of this contention, learned Counsel for the petitioner has placed reliance on the following decisions of the Supreme Court,-
a) Hakam Sing Vs. Gammon (India) Ltd., ,
b) A.B.C. Laminart Pvt. Ltd. and Another Vs. A.P. Agencies, Salem, ,
c) Shriram City Union Finance Corporation Ltd. v. Rama Mishra AIR 2002 S.C. 2402;
d) New Moga Transport Company, through its Proprietor Krishanlal Jhanwar Vs. United India Insurance Co. Ltd. and Others, ;
e) Morgan Stanley Mutual Fund Vs. Kartick Das, ; and
f) Bloom Dekor Limited Vs. Subhash Himatlal Desai and Others, .
Learned Counsel for the respondent has contended that the argument before the Court below was only to the effect that it was only the Courts at Kolkata that had jurisdiction and the Courts at Bangalore had no jurisdiction, therefore, the present contention urged in the writ petition that both the courts at Bangalore and Kolkata had jurisdiction and hence by virtue of Bye-Law No. 124 the jurisdiction of other Courts except the Court at Kolkata have been excluded by consent, is a new stand taken by the petitioners which is totally inadmissible. He refers to several circumstances, such as the factum of holding election at Bangalore, appointment of the Returning Officer at Bangalore, declaration of election at Bangalore, the entire process of election initiated and conducted at Bangalore coupled with the fact that 3 defendants are residing at Bangalore to contend that entire cause of action has arisen at Bangalore and no cause of action arose at Kolkata. According to him only because the registered office of the 1st respondent is situated at Kolkata, it with not confer jurisdiction either under the provisions of Bye-Law 124 under the provisions of Section 20 CPC. He further contends that there will be practical difficulty in conducting the case at Kolkata as, all witnesses are from Bangalore and the Ballot boxes are at Bangalore. He also contends that Bye-Law 124 applies only when any question of interpretation or operation of the Rule, Bye-Law, Regulation or decision of the Institution is involved and that no such question is involved in this case. He submits that tins is a case where the question is one of mal-practices and irregularities conducted in the process of election which has nothing to do with the operation of the Bye-Laws or Regulations. He also contends that in the absence of any agreement entered into between the parties, agreeing to oust the jurisdiction of any Court and confining the jurisdiction to any one among them, principles contained in the decisions relied upon by the learned Counsel for the petitioners are not applicable.
I have heard the learned Counsel for the parties and considered the materials on record. Though elaborate arguments were advanced by the learned Counsel for the parties regarding the purport and import of Bye Law No. 124 of the Bye-Laws of the Institution of Engineers and Section 20 CPC and although this Court, at one point was persuaded to examine the legal effect of these provisions and pronounce on the same, on a deeper consideration of the matter, I find that it is not appropriate for this court to pronounce upon the merits of the contentions raised by the petitioners, as the trial Court had no opportunity to consider these points and answer the same, inasmuch as it was not contended before the trial Court by the petitioners herein, that both the Courts at Bangalore and Kolkata had jurisdiction to try the case and due to the provisions contained in Bye-Law 124, parties have agreed to oust the jurisdiction of other court and restrict their right to approach the court only at Kolkata. On the other hand, it was the specific case of the defendants before the trial court that the Court at Bangalore had no jurisdiction and it was only the Court at Kolkata which had jurisdiction. On account of this contention taken by the defendants, the Court below has not dealt with the application of Section 20 CPC or the effect of Bye-law No. 124 of the Bye-Laws of the defendant''s Institution. It is not the finding of the Court below that the court at Kolkata also has jurisdiction. The Court below had no occasion to deal with this aspect of the matter with reference to the provisions contained u/s 20 CPC keeping in mind the location of the registered office of the Institution of Engineers at Kolkata.
Application of Section 20 also presupposes the existence of several factual aspects. It is not apparent for this Court to take upon itself this task of deciding the issue raised for the first time and to pronounce on the jurisdiction of the trial court on the new points urged before this Court, in exercise of the writ jurisdiction. Since the question involved touches upon the jurisdiction, tins question has to be better addressed and decided by the trial court so that parties may have another opportunity to test the order before the appropriate forum. In this view of the matter, I refrain from answering the question raised regarding jurisdiction making it clear that these points raised in the writ petition for the first time shall be considered by the court below after giving opportunity to both the parties. The Court below shall answer the point of jurisdiction in the light of the contentions raised by the parties.
As I find that there was no occasion for the court below to take note of these contentions and as I also find that these contentions go to the very root of the jurisdiction, it is necessary to direct the Court below to re-hear the matter. Hence, I pass the following:
ORDER
(i) Writ Petition Stands disposed off.
(ii) Impugned order is set aside.
(iii) The Court below is directed to pass a fresh order after hearing both parties on the points referred to herein above and in the light of the discussions made above.
(iv) Parties are directed to appear before the court below on 6th June 2009.
(v) Parties to bear their respective costs.