Vasant Narain vs State

V.R. Newaskar, J.—This appeal is directed against an order directing return of the plaint for presentation to proper Court passed by the appellate Court with reference to an objection as to the place of suing. The point as to the place of suing was raised on behalf of the Defendant in the trial Court. A preliminary issue was framed by the trial Court on this point and when it came to the stage of argument it seems that the argument advanced was on the basis of Section 9 of the CPC namely as to whether the case is of a civil nature. The finding given by the Court was that it is a civil nature. The case later was tried on merits and the suit was dismissed. The Plaintiff preferred appeal against that decision. Before the appellate Court it was pressed on behalf of the Respondent that the objection as to the place of suing had not been determined by the trial Court. The lower appellate Court thereupon considered that question in appeal and held that the trial Court had no territorial jurisdiction to try the suit and directed return of the plaint for presentation to proper Court. This appeal is directed against that decision.

It is contended on behalf of the Appellant that an order directing the return of the plaint for presentation to proper Court is appealable. The appeal is specifically provided for under Order 43, Rule 1 (a) of the CPC Code. It is further contended on behalf of the Plaintiff-Appellant that the lower appellate Court has committed an error of law in considering the objection as to the place of suing at the appellate stage ignoring the provision of Section 21 C. P. C. Reliance in this connection was placed by the learned Counsel for the Appellant upon the decisions reported in Kiran Singh and Others Vs. Chaman Paswan and Others, and Seth Hiralal Patni Vs. Sri Kali Nath, .

On behalf of the Respondent it is strenuously argued by the learned Government Advocate that Section 21, under the circumstances of the present case, will not have any application since the trial Court had not given any finding on the issue regarding the place of suing which was specifically raised on behalf of the Defendant before it.

In my opinion the contention of the learned Government Advocate is untenable in view of the wording of Section 21 of the CPC Code. That section is follows:

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.

Their Lordships of the Supreme Court in the decision reported in Kiran Singh and Others Vs. Chaman Paswan and Others, , observed:

With reference to objection relating to territorial jurisdiction, Section 21 of the CPC enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 Code of CPC and Section 11 of the Suits Voluation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to, consideration by an appellate Court unless there has been a prejudice on the merits.

It is clear from these observations of their Lordships that the policy underlying section 11 of the Suits Valuation Act, Section 21 Code of CPC and Section 99 of the CPC is the same and an objection based on them can only succeed if disregard of it has occasioned failure of justice. It is not disputed that in this case the trial Court has rendered judgment on merits. When the matter therefore came before the appellate Court and an objection as to the place of suing was raised it was incumbent upon it to consider not only whether the objection had been raised at the appropriate stage or not but also whether there has been consequent failure of justice by reason of the trial of the case in a wrong forum. Such a finding has not been given by the lower appellate Court while considering the objection and directing the return of the plaint for presentation to proper Court. In face of this the order considering the objection as to place of suing and giving a finding in Defendant''s favour upon that point and further directing the return of the plaint for presentation to proper Court is unsustainable. The same is set aside and the case is sent back to the lower appellate Court. Although the lower appellate Court Judge has expressed what he considered to be his opinion on other issues in the case it will be open for him to reconsider the same and give a considered finding This course is considered necessary because it may be that while having come to the conclusion that the trial Court had no jurisdiction to entertain the suit he might not have considered the matter as thoroughly as he should have done.

The Appellant will be entitled to his costs of this appeal from the opposite side.

Ordered accordingly.