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Category: Jurisdiction

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Jurisdiction

Kiran Singh And Others v. Chaman Paswan 1954 AIR 340, 1955 SCR 117

KIRAN SINGH AND OTHERS V. CHAMAN PASWAN

Kiran Singh And Others v. Chaman Paswan 1954 AIR 340, 1955 SCR 117

ISSUE:

  • Whether a decree passed on appeal by a court that had jurisdiction to entertain it only by reason of undervaluation, be set aside on the ground that on a true valuation the court was not competent to entertain the appeal?

RULE:

  • It is a well-established fundamental principle that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings

FACTS:

  • The appellants instituted the suit for recovery of possession of the land of which defendants are the proprietors (a proprietor is a person enjoying the exclusive right of ownership to some property).
  • Plaintiffs were tenants on payment of the certain sum of money and were put into possession of the land by the defendants. The allegation was that the defendants trespassed on the land and carried away the crops.
  • The suit was filed for mesne profits. (If it is determined the party using the land did not have legal ownership, the true owner can sue for some or all of the profits made in the interim by the illegal tenant, which are thus called “mesne profits)
  • Plaintiffs filed the suit in the subordinate court and valued the suit themselves and paid the court fees on that valuation under the Suit Valuation Act.
  • The subordinate court decided the case in favor of the defendants. On the basis of the suit valuation, District Court had the – jurisdiction – to hear the appeal and therefore the plaintiffs appealed in District Court after which they appealed to the High Court where the Court determined the correct valuation of the suit was Rs 9,980 and not Rs 2,950.
  • On the basis of undervaluation of the suit, which the plaintiff had themselves decided on their own and contended that the order of the District Court was a nullity since the District Court had no jurisdiction to hear the first appeal and the first appeal was to be heard by High court on the basis of the corrected valuation.

HELD:

  • The court came upon a conclusion that the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one’s own act.” Court held that no prejudice was caused to the appellants by their appeal having been heard by the District Court.
  • There were no grounds for interference under Section 11 of the Suits Valuation Act is correct.
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Jurisdiction

Khandesh Spinning & Weaving v Mool Jaith & Co. 1948 (50) BOM LR 49

KHANDESH SPINNING & WEAVING V MOOL JAITH & CO.

Khandesh Spinning & Weaving v Mool Jaith & Co. 1948 (50) BOM LR 49

ISSUE:

  • Whether the court has jurisdiction conferred upon this Court under Clause 12 of the Letters Patent?

RULE:

  • The suit is essential for the enforcement of personal obligation undertaken by vendors in agreement, Whichever be a form of decree that may have to be passed in suit, the effect is to pass title effectively to the plaintiff in fulfillment of that personal obligation for purpose of which alone suit is filed.

FACTS:

  • The appellants are a joint-stock company and they filed the suit from which this appeal arises against the defendants who were the plaintiffs’ managing agents for a very long time, their agency having been terminated on November 21, 1940. In the suit various reliefs were claimed against the defendants.
  • The one with which we are concerned related to certain lands at Jalgaon which stood in the name of the defendants and which the plaintiffs claimed to be of their ownership, having; been acquired according to them by the defendants as plaintiffs’ agents and with the funds belonging to the plaintiffs.
  • In respect of these lands, the plaintiffs sought a declaration that they belonged to and were the property of the plaintiffs and that the defendants had no beneficial interest therein and also they asked for an order against the defendants to execute all such documents and deeds, and do such acts as may be necessary for transferring these lands to the name of the plaintiffs. The defendants raised various issues.
  • The learned Judge below tried an issue as to the jurisdiction of this Court to entertain the suit in so far as it related to the prayers concerning the lands situated in Jalgaon.
  • The learned Judge came to the conclusion that the Court had no jurisdiction to give relief with regard to these lands and he also held that various other issues which according to him were connected with the question of lands situated in Jalgaon did not arise for determination in view of his finding on the main question about jurisdiction.

HELD:

  • The learned Judge came to the conclusion that the Court had no jurisdiction to entertain the suit with regard to lands at Jalgaon on two grounds :
    (1) he held that the suit filed by the plaintiffs was a suit for land in so far as it related to lands outside the jurisdiction and as such this Court could not entertain it;
    (2) he also took the view that on a true construction of Clause 12 of the Letters Patent the fact that the defendants’ firm carried on business within the jurisdiction and its sole proprietor resided within jurisdiction did not confer jurisdiction upon this Court.
  • In this appeal, Sir Noshirwan Engineer for the appellants has argued both the points. But as we take the view that the suit is not a suit for land even in respect of lands situated outside the jurisdiction, we do not think it necessary to express any opinion on the wider and perhaps the more important question whether on a true reading of Clause 12 of the Letters Patent suits of every description fall within the competence of this Court, once it is established that the defendant dwells or carries on business or personally works for gain within the limits of the original civil jurisdiction of this Court.
  • The Supreme Court allowed the appeal, reversed the decision of the Court below and answered issue No. 1 in the affirmative.
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Jurisdiction

Harshad Chimmanlal Modi v. DLF Universal, 2005(7) SCC 791

HARSHAD CHIMMAL MODI V. DLF

Harshad Chimmanlal Modi v. DLF Universal, 2005(7) SCC 791

ISSUE:

  • Whether the Civil court of Delhi had jurisdiction to try and entertain the suit?

RULE:

  • The court said that the proviso is an exception to the main part of the section which in their considered opinion, cannot be interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant.

FACTS:

  • In this case the appellant, Harshad Chiman entered into a ‘plot buyer agreement’ with DLF for the purchase of a residential plot in Gurgaon, Haryana.
  • According to the appellant, the agreement was made in Delhi. Appellant entered into an agreement The head office of DLF was also situated in Gurgaon.
  • Later on, despite regular payment of installments by Harshad Chiman, the contract was unilaterally canceled by DLF.
  • A suit was then filed in Delhi High Court which was later on transferred to the District Court of Delhi.
  • The pertinent question was in which court a suit for specific performance of the agreement relating to immovable property would lie.
  • The District Court decided the question in the negative and directed the appellant to file the case in an appropriate court.
  • Petition filed against this order of Delhi Civil Court was dismissed by the Delhi High Court.
  • The matter then reached to the Supreme Court.

HELD:

  • The apex court dismissed the application since the dispute related to immovable property and the prayer was for specific performance of an agreement of sale of immovable property and recovery of possession thereof, under section 16 of the code.
  • Since Delhi Court had no jurisdiction, the contention of the defendants was upheld and the plaint was ordered to be returned to the plaintiff for presentation to the proper Court.
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Jurisdiction

Swastik Gases v. IOCL, 2013(9) SCC 32

SWASTIKA GASES V. IOCL

Swastik Gases v. IOCL, 2013(9) SCC 32

ISSUE:

  • Whether, in view of Clause 18 of the consignment agency agreement dated 13.10.2002, the Calcutta High Court has exclusive jurisdiction in respect of the application made by the appellant under Section 11 of the Arbitration and Conciliation Act, 1996?

RULE:

  • For a jurisdiction clause in the agreement the words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” are not decisive and do not make any material difference, that the intention of the parties by having Clause 18 in the agreement is clear and unambiguous and that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction.

FACTS:

  • The Appellant, M/s. Swastik Gases Private Limited, mainly deals in the storage, distribution of petroleum products including lubricating oils in Rajasthan, and its registered office is situated at Jaipur.
  • An agreement was entered into between the Appellant and the company on 13.10.2002 whereby the Appellant was appointed the company’s consignment agent for marketing lubricants at Jaipur (Rajasthan).
  • There is a divergent stand of the parties in respect of the place of signing the agreement. The company’s case is that the agreement has been signed at Kolkata while the Appellant’s stand is that it was signed at Jaipur.
  • In or about November 2003, disputes arose between the parties as the huge quantity of stock of lubricants could not be sold by the Appellant. The Appellant requested the company to either liquidate the stock or take back the stock and make payment thereof to the Appellant. The parties met several times but the disputes could not be resolved amicably.
  • On 16.07.2007, the Appellant sent a notice to the company claiming a sum of Rs. 18,72,332/- under diverse heads with a request to the company to make payment of the above amount failing which it was stated that the Appellant would pursue appropriate legal action against the company.
  • Thereafter, on 25.08.2008 another notice was sent by the Appellant to the company invoking an arbitration clause wherein the name of a retired Judge of the High Court was proposed as the Appellant’s arbitrator. The company was requested to name their arbitrator within thirty days failing which it was stated that the Appellant would have no option but to proceed Under Section 11 of the 1996 Act.
  • The company did not nominate its arbitrator within thirty days of receipt of the notice dated 25.08.2008 which led to the Appellant making an application Under Section 11 of the 1996 Act in the Rajasthan High Court for the appointment of an arbitrator in respect of the disputes arising out of the above agreement.
  • The company contested the application made by the Appellant, inter alia, by raising a plea of lack of territorial jurisdiction of the Rajasthan High Court in the matter. The plea of the company was that the agreement has been made subject to the jurisdiction of the courts at Kolkata and, therefore, Rajasthan High Court lacks the territorial jurisdiction in dealing with the application Under Section 11.

HELD:

  • In the instant case, the appellant does not dispute that part of the cause of action has arisen in Kolkata. What the appellant says is that part of the cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designated Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the C.P.C., there remains no doubt that the Chief Justice or the designated Judge of the Rajasthan High Court has jurisdiction in the matter.
  • The court has to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to the jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement words like ‘alone’, ‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this is not decisive and does not make any material difference.
  • The intention of the parties–by having Clause 18 in the agreement–is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for the construction of the jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary.
  • This legal maxim means that the expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts.
  • Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, an inference may be drawn that parties intended to exclude all other courts.
  • A clause like this is not hit by Section 23 of the Contract Act at all. Such a clause is neither forbidden by law nor it is against public policy. It does not offend Section 28 of the Contract Act in any manner.
Categories
Jurisdiction

Horil v. Keshav & Anr (2012)5 SCC 525

HORIL V. KESHAV

Horil v. Keshav & Anr (2012)5 SCC 525

ISSUE:

  • Whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act?

RULE:

  • Under section 9 of the Civil Procedure Code, the civil court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.
  • Nothing in Order XXIII Rule 3-A bars the institution of a suit before the civil court even in regard to decrees or orders passed in suits and/or proceedings under different statutes before a court, tribunal or authority of limited and restricted jurisdiction.

FACTS:

  • The Appellant filed a suit ( No. 43 of 1980) in the court of Munsif, Karwi (Banda) seeking a declaration that the decree passed by the Assistant Collector, Class-I, in a suit under Sections 176, 178 and 182 of the U.P. Zamindari Abolition and Land Reforms Act was fraudulent, inoperative and not binding upon him.
  • According to the Appellant, the Defendants had instituted the suit before the Assistant Collector in which his father namely Chunkai was made as one of the opposite party. In that suit, a compromise petition was filed on October 7, 1971 with the fake signature of Chunkai and on that basis a compromise decree finally came to be passed on April 25, 1979.
  • It is the case of the Appellant that no notice of the suit was ever served upon his father Chunkai. He never appeared in the proceeding and was not even aware of it. He did not sign any compromise petition and his alleged signature on the compromise petition dated October 7, 1971 was faked.
  • He had died much earlier and was not even alive in 1979 when the decree was passed. The Appellant, accordingly, sought a declaration that the decree dated April 25, 1979 passed by the Assistant Collector, Class-I, Karwi, may be cancelled or it may be declared as void ab initio, inoperative and not binding upon him.
  • The Defendants filed a written statement in which they questioned the maintainability of the suit as well. It was contended on their behalf that as the suit related to agricultural lands it was beyond the jurisdiction and competence of the civil court and it could only be tried by the revenue authorities.
  • The Munsif by his order dated October 1, 1985 upheld the Defendants’ objection and held that the suit was not maintainable before a civil court. Against the order passed by the Munsif, the Appellant preferred an appeal (M.C.A. No. 21 of 1985) which was allowed by the judgment and order dated April 14, 1987 passed by the Additional District Judge, Karwi, (Banda).
  • The Additional District Judge rightly pointed out that the suit filed by the Appellant was based on the allegation that the decree passed by the Assistant Collector was based on a fraudulent compromise petition and it did not involve any adjudication of rights or interests in the agricultural lands. Hence, the suit was maintainable before a civil court. It, accordingly, set aside the order passed by the Munsif and directed him to proceed with the suit in accordance with law.
  • When the matter came before the Munsif on remand, the Defendants once again objected to the maintainability of the suit, this time raising the contention that it was barred under the provisions of Order XXIII Rule 3-A of the Code of Civil Procedure.
  • The Munsif by his order dated January 7, 1988 dismissed the objection and found and held that the suit was maintainable. The Defendants-Respondents took the matter in revision (Civil Revision No. Nil of 1988) which was dismissed by the District Judge, Banda, by his order dated February 17, 1988.
  • Against the orders passed by the Munsif and the District Judge, the Defendants preferred a writ petition before the High Court and the High Court, as noted above, allowed the writ petition holding that the suit was not maintainable.
  • It is a brief order in which the High Court referred to the provisions of Order XXIII Rule 3-A, and relying upon a decision of the Allahabad High Court allowed the writ petition.

HELD:

  • Based on the facts of the case the provision of Order XXIII shall not act as a bar against the suit filed by the Appellant. The court accordingly set aside the order of the High Court. As a consequence, the suit will be restored before the Munsif who is directed to accord it priority having regard to the fact that for the last 31 years it is stuck up on the issue of maintainability.
  • The trial court should try to dispose of the suit without any delay, and in any case, not later than one year from the date of receipt/production of a copy of this order.
Categories
Jurisdiction

Dhulabhai v. State of M.P., (1968)3 SCR 662

DHULABHAI V. STATE OF M.P.

Dhulabhai v. State of M.P., (1968)3 SCR 662

ISSUE:

  • Whether the suit was barred expressly by Section 17 of the Act or any implication arising from the Act?
  • Whether the relief of repayment has to be sought by the ‘taxpayer’ by an action in a civil court or whether such an order can be made by the High Court in the exercise of its jurisdiction conferred by Article 226 of the Constitution?
  • Whether the jurisdiction conferred on the taxing authorities included the jurisdiction to determine the nature of the transaction or was the decision about the character of the transaction, a decision on a collateral fact

RULE:

  • Though the Madhya Bharat Sales Tax Act contains provisions for appeal, revision, rectification and reference to the High ,Court, the notifications having been rightly declared void in the earlier decision of the High Court, the appellants could take advantage of the fact that tax was levied without a complete charging section.

FACTS:

  • Appellants are Tobacco dealers, the appellants are tobacco dealers and have their business places in Ujjain. They buy and sell tobacco which is used to eat, smoke, and prepare bidis.
  • They get their tobacco locally or import it from places outside of the province. In 1950 the former Madhya Bharat State enacted the Madhya Bharat Sales Tax Act The: tax was a single point tax and it was provided that, by notification, the Government could determine the point of sale at which the tax was due.
  • The section also set minimum and maximum tax rates leaving it to Government to inform the actual rate. The government released a number, in pursuit of this power. In Madhya Bharat was not imposed on the selling or purchase of similar kinds of tobacco.
  • The tax was received by the authorities for various sections in equal quantities from the appellants. We don’t concern ourselves with the numbers. The appellants had been serving notices under Section 80 of the Code of Civil Procedure and lodged the present refund proceedings on the basis that the tax was unlawfully collected.

HELD:

  • The Supreme Court held the suits to be maintainable.
  • An exclusion of the jurisdiction of civil court is not readily to be inferred unless the following conditions apply:
  • Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
  • Where there is an express bar of the jurisdiction, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
  • Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
  • A challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
  • When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
  • Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
  • Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit,does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant inquiry.
Categories
Jurisdiction

Nahar Industrial Enterprises Ltd. v. HSBC, (2009)8 SCC 646

NAHAR INDUSTRIAL ENT V. HSBC

Nahar Industrial Enterprises Ltd. v. HSBC, (2009)8 SCC 646

ISSUE:

  • Whether the High Court/Supreme Court has the power to transfer a suit from a Civil Court to the DRT?
  • Whether Article 142 is applicable to direct a transfer from a Civil Court to DRT?

RULE:

  • A debtor under the common law of contract as also in terms of the agreement may have an independent right; no forum has been created for endorsement of that right. Jurisdiction of a civil court is barred only in respect of matters which strictly come within the purview of Section 17 of DRT Act and not beyond the same, the civil court therefore will continue to have jurisdiction.

FACTS:

  • Nehar (Appellant) entered into 10 derivative contracts/ transactions with HSBC (Respondents).
  • Appellant claims 2 out of 10 transactions were canceled on grounds of violating the FEMA Act and RBI Guidelines.
  • Appellants files suits in Civil Court Ludhiana seeking clarification on the two said transactions.
  • Civil Court grants interim injunction and orders to maintain status quo.
  • Respondent files application of transfer of case from Civil Court to DRT, Mumbai at Punjab & Haryana High Court.
  • High Court permits transfer in form of a counterclaim
  • Appellant filed suit in the Supreme Court seeking clarification.

HELD:

  • The Supreme Court held that Ranjan Chemicals could not have departed from the law laid down in ABS Marine, as it was a decision of a coordinate Bench.
  • The court seemed to have accepted the arguments that Section 31 of the DRT Act is exhaustive of the powers of transfer under the Act.
  • Substantively, the court agreed with the reasoning that a DRT is incapable of adjudicating complex issues of law and fact. It noted that a tribunal that has the “trappings” of a court is not necessarily a court, and approved decisions that had held that the DRT is not a court.
  • The court held that a case cannot be simultaneously filed at two judicial or quasi bodies and no court has the authority to transfer cases outside the purview of its jurisdiction.
  • The Court evolved two other important propositions. The first is the well-settled principle that a bar on the jurisdiction of the civil court is not to be readily inferred.
  • The second, and more important, was the Court’s finding that since the right to appeal is a vested, statutory right by virtue of s. 96 of the CPC, the line of reasoning employed in Ranjan Chemicals would not only deprive the borrower of his right to sue but also of his right to appeal.
Categories
Jurisdiction

Hiralal v. kalinath [1962] 2SCR 747

HIRALAL V. KALINATH

Hiralal v. kalinath [1962] 2SCR 747

ISSUE:

  • Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage?

RULE:

  • The objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. The competence of a Court to try a case goes to the very root of the jurisdiction and where it is lacking it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given statutory recognition by enactments like S. 21 of the Code of Civil Procedure.

FACTS:

  • The appellant wished to acquire shares in certain mills, popularly known as ‘John Mills’, at Agra. He engaged the services of the respondent to negotiate the deal on certain terms.
  • The bargain was concluded, and the appellant, together with another person, purchased the entire interest of one Major A. U. John by an indenture of sale dated July 10, 1946.
  • The respondent instituted a suit, being suit No. 3718 of 1947, on the original side of the High Court of judicature at Bombay for recovery of his commission, amounting to one lakh of rupees, in respect of the transaction aforesaid. The suit was eventually referred to the arbitration of one Mr. W. E. Pereira, administrator of the estate of the aforesaid Major A. U. John, deceased.
  • One of the defences taken by the appellant, as defendant in the action, was that the suit filed in the Bombay High Court, as aforesaid, after obtaining leave of that Court, under clause 12 of the Letters Patent was outside the territorial jurisdiction of the Bombay High Court on the original side, in as much as the entire cause of action, if any, had arisen at Agra.
  • The arbitrator gave an award in favour of the respondent to the extent of decreeing his claim for only seventy five thousand rupees as commission, with interest at 6% per annum pendente lite. Proceedings were taken in the High Court of Bombay for setting aside the award on certain grounds, not necessary to be stated here.
  • The Bombay High Court found that there was no defect in the award and that there was no legal misconduct on the part of the arbitrator. The High Court further held that the petition was frivolous, and dismissed it with costs.
  • The appellant preferred an appeal which was dismissed by a Division Bench of the High Court of Bombay on January 21, 1952. The award was, thus, incorporated in a decree of the High Court.
  • That decree was transferred to the court of the District Judge Agra, for execution. On February 5, 1952 the execution proceedings were instituted by the decree-holder in the Court of the Civil Judge, Agra, to realize the sum of one lakh ten thousand rupees, approximately, on the basis of the decree passed as aforesaid by the Bombay High Court.

HELD:

  • In that case, the suit had been instituted in the Court of the Subordinate Judge, who was incompetent to try it. By consent of the parties, the case was transferred to the Court of the District Judge for convenience of trial. It was laid down by the Privy Council that as the Court in which the suit had been originally instituted was entirely lacking in the jurisdiction, in the sense that it was incompetent to try it, whatever happened subsequently was null and void because the consent of parties could not operate to confer jurisdiction on a Court which was incompetent to try the suit.
  • That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction is one that does not go to the competence of the Court and can, therefore, be waived.
  • In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under clause 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the defendant or the objection could be waived by him.
  • When he agreed to refer the matter to arbitration through Court, he would be deemed to have waived his objection to the territorial jurisdiction of the Court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case.
  • The competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given statutory recognition by enactments like Section 21 of the Code of Civil Procedure.
  • Having consented to have the controversy between the parties resolved by reference to arbitration through Court, the defendant deprived himself of the right to question the authority of the Court to refer the matter to arbitration or of the arbitrator to render the award.
  • It is clear, therefore, that the defendant is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator.
  • He is equally estopped from challenging the authority of the arbitrator to render the award. In our opinion this conclusion is sufficient to dispose of the appeal. It is not, therefore, necessary to determine the other points in controversy, including the question of whether The Decrees and Orders Validating Act, 1936 (Act V of 1936) had the effect of validating what otherwise may have been invalid.
  • Appeal Dismissed.
Categories
Jurisdiction

Aspi Jal v. Khusboo Rustom, (2013) 4 SCC 333

ASPI JAL AND ORS. V. KHUSHROO RUSTOM DADYBURJOR

Aspi Jal v. Khusboo Rustom, (2013) 4 SCC 333

ISSUE:

  • Whether on the final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit?

RULE:

  • The Apex Court concluded that since the causes of action would be distinct in each case as they pertain to different periods of non-user, the applicability of Section 10 of the CPC was turned down.

FACTS:

  • The Plaintiffs-Petitioners, aggrieved by the order dated 9 th February, 2012 passed by the Bombay High Court in Writ Petition No. 7653 of 2011, affirming the order dated 6 th July, 2011 passed by the Court of Small Causes at Mumbai, in R.A.E.
  • Suit No. 173/256 of 2010 whereby it has stayed the proceedings in R.A.E. No. 173/256 of 2010 till the decision in R.A.E. Suit No. 1103/1976 of 2004 and R.A.E. Suit No. 1104/1977 of 2004, have preferred this Special Leave Petition under Article 136 of the Constitution of India.
  • The Plaintiffs claim to be the owner of the building known as ” Hanoo Manor” situate at Dadyseth 2 nd Cross Lane in Chawpatty area of the city of Mumbai. According to the Plaintiffs, in one of the flats of the said building admeasuring 1856.75 sq.ft. situate on the second floor, Defendant’s father, Rustom Dady Burjor (since deceased)was inducted as a tenant on a monthly rent of Rs. 355/-.
  • The Plaintiffs filed a suit for eviction from the tenanted premises against the Defendant being R.A.E. Suit No. 1103/1976 of 2004(hereinafter to be referred to as the “First Suit”) before the Small Causes Court on 6 th November, 2004 on the ground of bona fide requirement for self occupation and acquisition of alternate accommodation by the Defendant. The Plaintiffs thereafter filed another suit being R.A.E. Suit No. 1104/1977 of 2004 (hereinafter to be referred to as the “Second Suit”) on the same day in the Small Causes Court for eviction of the Defendant on the ground of nonuser for several years before the institution of the suit.
  • The Plaintiffs during the pendency of the aforesaid two suits, chose to file yet another suit bearing R.A.E. Suit No. 173/256 of 2010 (hereinafter to be referred to as the “Third Suit”) on 22 nd February, 2010 for eviction of the Defendant on the ground of non-user for a continuous period of not less than six months immediately prior to the institution of the suit.

HELD:

  • The court observed the orders passed by the trial court as affirmed by the High Court are vulnerable and therefore, cannot be allowed to stand.
  • Mr. Divan prays that direction may be issued to the trial court to hear all the suits together. The court restrains ourselves from issuing such direction but gives liberty to the parties if they so choose to make such a prayer before the trial court. Needless to state that in case such a prayer is made, the trial court shall consider the same in accordance with the law.
  • As the result, the appeal is allowed and the impugned order of the trial court as affirmed by the High Court is set aside but without any order as to costs.
Categories
Jurisdiction

Indian Bank v. Maharashtra State Co-Operative Marketing Federation Ltd. (1985) 5 SCC 69

INDIAN BANK V. MAHARASTRA STATE BANK COOPERATION

Indian Bank v. Maharashtra State Co-Operative Marketing Federation Ltd. (1985) 5 SCC 69

ISSUE:

  • Whether the bar to proceed with the trial of the subsequently instituted suit, contained in section 10 of the Code of Civil Procedure, 1908 is applicable to the summary suit filed under Order 37 of the Code?

RULE:

  • The Supreme Court’s opinion, the Division Bench of the Bombay High Court was in error in taking a different view. It had relied upon the decision of this Court in Harish Chandra v. Triloki Singh (AIR 1957 SC 444). That was a case arising under the Representation of People’s Act and, therefore, it was not proper to apply the interpretation of the word ‘trial’ in that case while interpreting section 10 in the context of Order 37 of the Code.

FACTS:

  • The respondent Federation applied to the appellant bank on 5.6.1989 to open an Irrevocable Letter of Credit for a sum of Rs. 3,78,90,000/- in favour of M/s. Shankar Rice Mills. Pursuant to that request to Bank opened an Irrevocable Letter of Credit on leave on the Federation to defend the suit conditionally upon the Federation depositing Rs.4 crores in the Court. The summons for the judgment was disposed of accordingly and the Notice of Motion was dismissed.
  • Aggrieved by the order of the learned Single Judge in summons for judgment Federation filed Appeal before the Division Bench of the High Court, and against the order passed on Notice of Motion, it preferred Appeal.
  • The Division Bench was of the view that the word ‘trial’ in section 10 has not been used in a narrow sense and would mean entire proceedings after enters his appearance, held that section 10 of the Code applies to a summary suit also.
  • It also held that the summary suit filed by the Bank being a subsequently instituted suit was required to stay. It allowed both the appeals; set aside the orders passed by the learned Single Judge and stayed the summary suit till the disposal of the prior suit filed by the Federation.

HELD:

  • Leave granted.
  • Therefore, allow these appeals, set aside the impugned judgment of the Division Bench of the High Court, and restore the order passed by the learned Single Judge.