Thirupathi vs Kothai Aachi

A. Kulasekaran, J.—The Plaintiff in O.S. No. 872 of 1996 before the II Additional District Munsif, Tirunelveli is the revision petitioner

herein. The Plaintiff has filed the said suit for a declaration to declare that he is the adopted son of Late. Chockalinga Chettiar and his wife namely

Kothai Achi, respondent herein. In the said suit examination of the witnesses of both sides were over and the case was posted for arguments. At

that time, the respondent herein has filed an application I.A. No. 76 of 2002 under Order VIII Rule 9 CPC seeking permission of the Court to

receive the additional written statement. The trial court, after hearing both sides has allowed the said petition, hence this revision.

Heard both sides. Mr. Srinivas, learned counsel appearing for the petitioner submitted that the trial court exceeded its jurisdiction and permitted

the respondent to file her additional written statement without satisfying the requirements under Order 8 Rule 9 CPC; that the trial court failed to

note the scope and power of the Court conferred u/s 21 of CPC; that the trial court completely overlooked that the respondent has submitted to

the jurisdiction, hence stopped from questioning the jurisdiction belatedly which would cause prejudice to the petitioner''s right; that the trial court

erred in allowing the petition which was filed belatedly, that too, after examination of witness on both sides were over; that the respondent has not

explained the delay in filing the petition; that under Order 14 Rule 2 CPC as well as Section 21 CPC, the jurisdiction can be decided at the earliest

possible opportunity, hence the application filed by the respondent ought to have been dismissed by the trial court and prayed for setting aside the

impugned order dated 26-04-2002.

Mr. S.P. Maharajan, learned counsel appearing for the respondent submitted that the trial court has no territorial jurisdiction to try the case,

which plea was not mentioned in the written statement by oversight; that the said plea would not change the character or cause of action of the suit;

that the trial court has rightly held that receiving the additional written statement would not cause any prejudice to the petitioner; that the trial court

further rightly found that the jurisdiction of the Court could be decided only after trial, while so the impugned order is perfectly valid.

The trial court allowed the petition filed by the respondent herein on the ground that though examination of witnesses on both sides are over, it is

the bounden duty of the Court to decide the vital question of law namely Jurisdiction of the Court which could be done only after trial and if the

additional written statement sought to be filed is not received, it would amount to denial of opportunity to the party from bringing to the notice the

vital issue involved in the case. It is also pointed out by the trial court that receiving additional written statement neither cause any prejudice to the

petitioner nor change the character of the suit.

The respondent herein intended to canvass in his additional written statement that the Court within its jurisdiction the office of the Sub-registrar,

who registered the deed of adoption located and the place where the adoption ceremonies conducted is competent to try the case. According to

the respondent, both the causes of action not taken place within the jurisdiction of the court below.

Now, we look into the provisions of Section 21, Order VIII Rule 9 OF CPC

Objections to Jurisdiction: - (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.

Order VIII Rule 9 - Subsequent Pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to a

set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any

time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

Section 21 CPC relates to objection to jurisdiction of the Court. Section 21 begins with 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. If a party fail to

object jurisdiction of the trial court, he is not permitted to canvass the same either before the appellate or revisional Court. The intention of

enactment of Section 21 of CPC is where a Court has no jurisdiction over a litigation its order, however precisely certain and technically correct

are mere nullities and can be declared to be void by every Court in which they may be presented. In case of initial lack of jurisdiction, no amount

of consent or waiver on the part of the parties can create jurisdiction, where there is none. Hence, it is absolutely necessary to the parties to raise

their objection before the Court of first instance. No doubt, it is incumbent on the parties to raise their objection relating to jurisdiction at the

earliest possible opportunity and in all cases where issues are settled at or before such settlement.

Order 8 Rule 9 CPC enables the Court to accept a written statement filed at a later stage, even after settlement of issues upon such terms as it

may think fit and proper, however, the Rule contemplates the leave of the Court before any party can present a further pleading after the written

statement has been filed. This Rule invest the Court with widest possible discretion and enables it to accept additional written statement.

The learned counsel appearing for the petitioner submitted that the objection regarding jurisdiction was not taken up by the respondent herein

prior to framing of issues or prior to commencement of trial thereby submitted to the jurisdiction, he is stopped from questioning the jurisdiction. I

am unable to accede to this contention because the nature of the objection is regarding jurisdiction of the Court below which goes to the very root

of the matter.

As I have already pointed out, when a Court has no jurisdiction over a litigation, no amount of consent or waiver on the part of the parties can

create jurisdiction. A joint reading of Section 21 as well as Order 8 Rule 9 CPC would make it clear that any trial in the wrong Court would lead

to failure of justice. Hence, I have no hesitation in confirming the order passed by the trial court. However, in the interest of justice, due opportunity

may be afforded to the petitioner to meet the averments in the additional written statement. I direct the trial court to dispose of the suit on merits

uninfluenced by the order passed by this Court in this revision.

In the result, the revision is dismissed. No costs. Connected CMP is closed.