A complete Lecture & Article on “Place of Suing”

Ramyata Dass

The courts in India follow a systematic hierarchy. The supreme court of India holds the utmost power in this hierarchy. Each state has a high court and there are numerous other lower courts for the resolution of dispute. The code of civil procedure, as the name suggests is a procedural law containing 158 sections and LI (51) Orders.

The objective of this code is to consolidate all the laws relating to procedure of suits which are civil in nature. CPC does not mention the meaning of the term ‘Suit’ anywhere but in the case of Hansraj v Dehradun Mussoorie Tramways Co. Ltd, AIR 1935 All 995, the Privy Council defined the term suit as, ‘a civil proceeding instituted by the presentation of a plaint’. Thereby a suit can be of different subject matter, based on which the jurisdiction of court is decided.

Jurisdiction of the court refers to the extent of authority a court is authorised to use for the administration of justice. It means the power of a particular court to hear, adjudicate as well as exercise judicial power with regards to the case.

It should be noted that consent of the parties cannot take away or create jurisdiction of a court. The present article deals mainly with aspects relating to the place of suing.

Any defect of jurisdiction renders the judgement null and void however correct the reasoning of the judgement might be. On the other hand, when the court has the jurisdiction to decide upon a dispute, the judgement will be binding on the parties and if a party feels wronged by such judgement then it may take the recourse of the law for settling the matters right.

The matter to be noted is that if the court has decided upon a matter lying outside its jurisdiction and the parties to the dispute have accepted the erroneous decree, such decree will hold good. Likewise, the code lays rules for ascertaining the jurisdiction of court to hear a particular matter.

Also, in the notable case of Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823 a three Judge bench while deciding the case in matter of jurisdiction under the Trust Act held that ‘for a court to decide a matter it should not only have jurisdiction to try the matter before it but the it should have sufficient authority to pass the order which is sought for.

Mere jurisdiction of subject matter is not sufficient and such jurisdiction must include the power to hear and decide the questions at issue in hand.

Place of suing is covered from section 15 to 20 of the code. Furthermore, one of the main conditions for a suit to be entertained by the court is that it should not be barred under section 9 of the code. The details of limitation under section 9 are discussed below.

BAR OF SUIT UNDER SECTION 9 OF CIVIL PROCEDURE CODE

Section 9 states that all suits of civil nature can be heard by the courts with the limitation that such suit is not expressly or impliedly barred.

Explanation 1- a suit of right to property will be of civil nature and it will not matter that such right depends entirely on the decision on religious rites or ceremonies.

Explanation 2- Attachment or non-attachment of fees is immaterial to the office mentioned in explanation 1.

The code does not define the word ‘civil’ but as the general meaning implies the private rights distinguished from criminal and political rights.

In the case of Most Rev. P.M.A. Metropolitan V. Moran Mar Marthoma AIR 1995 SC 2001, Justice R.M Sahai in the year 1995 while deciding a matter stated that one of the basic and well established principles of law is where there is a law there is a remedy. This right is contained in the Latin maxim ‘Ubi jus ibi remedium’.the court stated that section 9 is expansive in nature which is equipped with both negative and positive phraseology.

The positive part of the section opens the doors for institution of suit while the negative part limits for those suits that have been expressly ad impliedly barred. Such terminology used in the section brings out the intention of the legislation which is clear and explicit. Further, that no court can refuse to try a suit if it passes the bar of section 9.

Express bar means a suit can be barred by the act of parliament through an enactment. A certain class of suit can be barred by the legislature. Such power is conferred to the legislature by the constitution of India.

For example, tribunals have the right to entertain cases on particular subject matter and such matter cannot be taken up by the courts initially. Implied bar is when a suit is barred by the general principle of law for example, the ground of public policy.

In the case of Sankaranarayanan Potti V K. Sreedevi & Ors (1998) 3 SCC 751 the supreme court made it clear by stating that there is inherent jurisdiction to adjudicate all types if civil matters in accordance with section 9 with the civil court until and unless the suit is expressly or impliedly barred.

Also in the case of Bar Council Of West Bengal And Ors. vs Miss Ajanta Aughstin which related to the jurisdiction of the City Civil Court to entertain and try the suit instituted by the plaintiff it was held that when a statute bars the jurisdiction of a certain court but does not provide an alternate remedy to sort such dispute, then the jurisdiction of such civil court cannot be excluded.

TYPES OF JURISDICTION

The jurisdiction of court is decided based on following four grounds.

1. Pecuniary jurisdiction
2. Territorial jurisdiction or local jurisdiction
3. Subject matter jurisdiction
4. Original or appellate jurisdiction

• Pecuniary Jurisdiction

Section 15 of the code states that ‘every suit shall be instituted in the court of the lowest grade which is competent to try it’. The word competent is supplementary to pecuniary. This means that if a remedy can be sought by the litigants at the lower courts, the higher court should not be approached. This also refers to the monetary value of the suit. Each court has a certain extent of monetary value which can the court is allowed to decide upon, if the value is higher a higher court should be approached.

It is to be noted that this section is meant for the avoidance of overburdening of higher courts with trivial matters. Although higher courts still have the jurisdiction to hear matters with lesser monetary value. Such order passed by the higher court is not nullity. On the contrary, a lower court cannot go beyond the limits of pecuniary value prescribed to it and such order will be a nullity.

One of the important questions to be addressed is who decides the value of a suit. It is usually done by the plaintiff unless the court prima facie rejects it. The court will take the initial value of the suit to decide the matter and the order of the suit will hold good even if eventually it is found that the amount is slightly higher than the initially ascertained value.

• Territorial Jurisdiction or Local Jurisdiction

Territorial jurisdiction is meant by the geographical location of the suit to be instituted or the territory within which the court has jurisdiction. It is covered from section 16-20 of the code.

For example, if the dispute has taken place in Raipur, it is illogical to try the suit in Chennai. The territorial jurisdiction of the court provides convenience for the parties so that justice is easily accessible.

Now the jurisdiction of the court according to territorial jurisdiction can be categorized in four types.

1. Suits with respect to immovable property.
2. Place of institution of suit where the local limit of the court is uncertain.
3. Suit is for compensation of wrong done to the person or to movable property.
4. Other suits.

Section 16 does not give any definition of immovable property although the general clauses act, 1985 defines immovable property. The very objective of this section is to limit the territorial jurisdiction of the court. In the case of Kondamudi Sriramulu v. Myneni Pundarikshyaya, (1950) 11 FCR 65 it was held that the wordings of section 16 also make it clear that the court lack power to try suits where property is situated outside India.

But if question regarding such property arises the court is not prevented from addressing such question.

Section 17 deals with suit where property in question is situated in different jurisdiction of courts. This provision is to avoid the multiplicity of cases. This allows the litigants to try the suit in one of the places where the property lies even if some property lies outside the jurisdiction of the court trying the suit.

For example where the dispute is with regards to more than one property or one property which extends across a wide area covering more than one district section 17 will be applicable.

Section 18 allows ascertaining the jurisdiction of court for institution of the suit. This provision is applicable when there is some uncertainty in the jurisdiction of the court. If such court is satisfied that there are proper grounds for uncertainty, the court has the power in such cases to hear the case and pronounce the judgement. Such judgement will hold good and shall have equal effect despite uncertainty of jurisdiction.

However it must be noted that recording the reason of uncertainty is important.

Under section 18 (1) if an objection is raised on appeal before the appellate court or revisional court that the decree passed by the court was made regarding a property by a court which did not have the jurisdiction to try the case, the appellate court shall not allow such contention unless the appellate court is satisfied that there was no reasonable ground for uncertainty and there has been a consequent failure of delivery of justice.

Section 19 deals with compensation of any wrong done to persons or movable property. Here the parties have an option of deciding the jurisdiction. In case the wrong (tort) took place within the local limits of the jurisdiction of one court but the defendant is a resident or has business within the jurisdiction of another court, the suit can be initiated in any one of the courts.

Section 20 deals with other suits to be instituted where defendants reside or the cause of action arises. The provision states that with subject to the limitations mentioned in earlier section, every suit shall be instituted in court within the local limits of whose jurisdiction

1. Where one defendant or more than one, at the time of commencement of the suit reside or carry out their business or works for personal gains; or
2. Where any of the defendant at the time of commencement of suit actually and voluntarily reside or carry out business or personally works for gain provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
3. The cause of action arises, wholly or in part.

Explanation— A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations from the Code

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.

(b) A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

• Subject matter Jurisdiction

Indian courts have subject matter allotted to them. Different courts have been allotted with power to decide upon certain matters. And the courts can decide only over the allotted subjects. If a case is taken upto a court whose subject matter is outside the jurisdiction of the court then such court will not be competemt to entertain such case.

• Original and Appellate Jurisdiction

As mentioned earlier, India follows a hierarchy of courts. This hierarchy is entwined with the jurisdiction of such courts to hear the matter. Appellate jurisdiction as the name suggests refers to the authority of court to re-hear the case or review the case that has been decided by the lower court.

This appeal is called out by the party who feels wronged or aggrieved by the lower court’s decision and seeks relief from the higher court. This is where the higher court exercises its power to review the case. In India both the High court and the Supreme Court hold appellate jurisdiction.

Original jurisdiction on the other hand refers to the court’s authority to hear the case in the first instance. Unlike appellate jurisdiction where the matter is already heard, original jurisdiction is the court of first order.

For example:

1. As provided in The Commercial Courts Act, 2015 the High Court exercises Original Civil Jurisdiction over matters with commercial disputes whose value consists of 2 crore and above.
2. The Supreme Court exercises Original, appellate and also advisory jurisdiction. The original jurisdiction extends to any dispute arising between the Government of India and one or more states. Such dispute can be relating to any question of fact or question of law.

OBJECTION TO JURISDICTION

In the case of Pathumma vs. Kuntalan Kutty AIR 1981 SC 1683 objection to jurisdiction was clearly explained. It was held by the Supreme Court that any objection to the jurisdiction may be entertained by the appellate court only upon the fulfilment of the three conditions stated below:

1. The objection was taken in the court of first instance.
2. Such objection was not delayed and was taken at the earliest opportunity and in case where the issue had been already settled by the court, such objection shall be raised at or before the settlement.
3. A failure of justice should be proved.

NOTE: It was held that if even one of the above conditions is not fulfilled the objection under section 21 cannot be sustained.

It was held in Kiran Singh V. Chaman Paswan, AIR 1954 SC 340 that such bar does not apply to territorial or pecuniary jurisdiction as these are only seen as an irregular exercise of jurisdiction. The judicial decision so given shall not be considered void. It is very much clear that the parties have all the rights to raise a dispute upon the same but it should be done at the earliest possible time.

But if the court has proceeded to settle the matter the same cannot be raised again in the appellate stage. On the other hand if the court has exceeded with subject matter jurisdiction then such decision can be challenged to be null and void. Such issue of lack of subject matter jurisdiction can be raised even in appeal.

Section 21A puts a bar on the suit which is instituted to set aside a decree on objection as to the place of suing. It states that no suit shall be brought up challenging the validity of decree passed in a former suit (a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned) between the same parties between the parties litigating under the same title on any ground based on an objection as to a place of suing.

CONCLUSION

Place of suing is vital in the core of civil ligation as it is the deciding factor as to where the suit shall be instituted. In India owing to the hierarchy of courts there are different criteria for deciding the jurisdiction of the court. The article elaborately states the pecuniary jurisdiction, subject matter jurisdiction, and territorial jurisdiction of courts.

Furthermore, when suits cannot be instituted has also been mentioned in the code. All these aspects help avoiding overburdening of courts and provide a systematic approach for the institution of suits. This is convenient not alone for courts but for the plaintiff and defendant too so that a matter can be heard by the court without loosing time.

*Section 9 of CPC (indiacode.nic.in)

*Section 15 of CPC (indiacode.nic.in)

*Section 16 of CPC (indiacode.nic.in)

*Section 17 of CPC (indiacode.nic.in)

*Section 18 of CPC (indiacode.nic.in)

*Section 19 of CPC (indiacode.nic.in)

*Section 20 of CPC (indiacode.nic.in)

*Section 21A of CPC (indiacode.nic.in)

*The Commercial Courts Act, 2015 (indiacode.nic.in)

*Jurisdiction of the Supreme Court

Read more : Place of Suing in Civil Cases in all Circumstances