IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.03.2010 CORAM THE HON'BLE MS. JUSTICE R.MALA A.No.6411 of 2009 in C.S.No.859 of 2009 ORDER
The applicant-defendant filed this application to reject the plaint in C.S.No.859 of 2009, stating that the suit was filed by the respondent-plaintiff for recovery of the amount due on goods sold to the tune of Rs.7,80,090.01 and interest at Rs.79,024.31, totalling Rs.8,59,114.32 and also in respect of damages for causing loss of business and loss of reputation, at Rs.2 lakhs and the plaintiff thus valued the suit for Rs.10,59,114.32 and also claimed interest on Rs.7,80,090.01 @ 21% p.a. from the date of the plaint till the realisation.
2. The plaintiff also filed A.No.4933 of 2009 in C.S.No.859 of 2009, praying to pass prohibitory order, prohibiting the second respondent-M/s.Great Lakes Institute of Management and the third respondent-M/s.Chaitanya Builders and Leasing (P) Ltd., the garnishees, from making payment to the first respondent-M.K.Sathyanarayana Rao (defendant) to the extent of the suit claim and consequentially, to direct them to deposit the same to the credit of the suit, pending disposal of the suit. In A.No.4933 of 2009, this Court granted prohibitory order, prohibiting the respondents 2 and 3 therein from making payments to the first respondent therein, to the extent of the suit claim till 20.10.2009 and the prohibitory order was extended from time to time, and lastly, by order dated 15.12.2009, it was extended upto 4.1.2010.
3. The first claim in the suit is for the decree for Rs.8,59,114.32, in respect of the amount due on business transactions, which includes the principal amount due at Rs.7,80,090.01 and interest at Rs.79,024.31 and the second claim is for the decree in respect of the damages for business loss and reputation at Rs.2 lakhs. The value for the first claim in respect of the first cause of action is Rs.8,59,114.32 and so, this Court has no pecuniary jurisdiction to try this case in respect of the first cause of action. The second cause of action in respect of the second claim of Rs.2 lakhs and even for this claim, this Court has no pecuniary jurisdiction. According to Clause 14 of the Letters Patent, where the plaintiff has several causes of action against the defendant, such causes of action not being for land or other immovable property, the High Court shall have original jurisdiction in respect of one of such causes of action. But in the present case, this Court has no jurisdiction in respect of even any one of the cause of action and hence, the defendant prayed for rejection of the plaint.
4. The respondent-plaintiff has filed his counter affidavit stating that to drag on the proceedings, the defendant has come forward with such application seeking for rejection of the plaint. Clause 14 of the Letters Patent, which is being referred to, is not applicable to the facts of the case on hand. Since the Registry of this Court has the value of two reliefs arising out of the same cause of action, the same is valued separately and separate Court fees are also paid. Since the two claims are being out of the same cause of action and since the total value of the relief claimed is within the pecuniary jurisdiction of this Court, the suit has been filed before this Court. No case is made out to allow the application for rejection of the plaint, either under Order 7 Rule 11 CPC or under any other provision of law and hence, the plaintiff prayed for dismissal of the said application.
5. Heard both sides.
6. Learned counsel for the applicant-defendant contends that this Court has no pecuniary jurisdiction. The pecuniary jurisdiction of this Court is above Rs.10 lakhs and there is mis-joinder of the causes of action. As per Clause 14 of the Letters Patent, without the leave of the Court, no single suit for several cause of actions, can be filed. He further submits that as per Clause 14 of the Letters Patent, if the plaintiff has filed a suit for several reliefs, at least one of the causes of action in respect of one of the reliefs, this Court must have the original jurisdiction. But in the present case, the first prayer is for claim amount due on the business transactions and it is below Rs.10 lakhs and the second claim is for damages for defaming the reputation of the plaintiff’s concern and it is for Rs.2 lakhs and so, both the claims are below Rs.10 lakhs and so, this Court has no pecuniary jurisdiction and hence, he prayed for allowing the application and for rejection of the plaint. Learned counsel for the defendant relied upon various decisions in support of his contentions.
7. Repudiating the said contentions, learned counsel for the respondent-plaintiff would submit that Clause 14 of the Letters Patent is not applicable to the facts of the present case. No reason has been given as to under what provisions of Order 7 Rule 11 C.P.C., the defendant has come forward with the application for rejection of the plaint. He further submits that to save the bar under Order 2 Rule 2 C.P.C., the plaintiff filed the suit. Learned counsel for the plaintiff further submitted that a single suit is maintainable by clubbing the causes of actions. He relied on various decisions and prayed for dismissal of the application.
8. While considering the arguments of both sides, on a perusal of the plaint, no doubt, in the ’cause of action’ column, in paragraph 10, the plaintiff has stated as follows:
First cause of action:
“.. the place where the plaintiff is carrying on business also at George Town, the place where the defendant is carrying on business at Royapettah, the place where on various dates, the goods were sold to the defendant, and delivered the same at the various places as directed by the defendant, on 1.4.2009 when after giving several credits to the on account payments made by the defendant the defendant is due and liable to the plaintiff sum of Rs.5,69,803.01, between 2.4.2009 and 29.8.2009 various other goods were sold and delivered to the defendant under various invoices and after giving several credits of payment made by the defendant on account between this dates and ultimately when defendant is due and liable to pay the sum of Rs.7,89,090.01, when interest become due, on 29.8.2009 when defendant made on account part payment of Rs.5,58,724/- by cheque, on 31.8.2009 when the said cheque was returned dishonoured, on 1.9.2009 when plaintiff wrote letter to the defendant, when defendant issued two cheque respectively dated 21.9.2009, and 2.10.2009. …”
Second cause of action:
” …. When defendant started defaming plaintiff and because of which the plaintiff incurred loss of sales and loss of reputation in the market, on 10.9.2009 when defendant sent e-mail with malafide intention on 16.9.2009, when plaintiff sent reply to the e-mail of the defendant and subsequently.”
In the heading under “Memo of Court Fee valuation”, the plaintiff has stated as follows:
Claim No.1:
1. Opening Balance as on 1.4.2009 : Rs.5,69,803.01 2. Sales upto 31.8.2009 on various dates and after giving credit to the various on account payments the amount due : Rs.2,10,287.00 Total: Rs.7,80,090.01 Interest as aforesaid @ 21% p.a. : Rs. 79,024.31 Total claim : Rs.8,59,114.32 Court Fee paid on Rs.8,60,000/- : Rs.12,125.00 Claim No.2 : 1. Loss for Business and Reputation: Rs.2,00,000.00 2. Court Fee paid : Rs. 5,525.00 3. Total Court Fee paid by the plaintiff for both the claims : Rs. 17,631.74
9. It is seen that the two causes of action are entirely different; one is for recovery of money due on business transactions and another is for loss of business and reputation for defaming the respondent-plaintiff. As per Claim No.(i), for recovery of money due on business transactions, the amount due is Rs.7,80,090.01 and interest at Rs.79,024.31 and its total claim is Rs.8,59,114.32. As per Claim No.(ii), in respect of loss of business and reputation for defaming the respondent-plaintiff, the amount claimed is Rs.2,00,000/-. After adding the total of both the claims, the plaintiff prays for recovery of Rs.10,59,114.32, and also claims interest on Rs.7,80,090.01 at 21% p.a. from the date of the plaint till realisation.
10. At this juncture, it is appropriate to consider as to whether the plaint is liable to be rejected, under Order 7 Rule 11 C.P.C.
Order 7 Rule 11 C.P.C. reads as follows:
Order 7 : Plaint
Rule 11: Rejection of plaint.– The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9;
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”
11. Even though the application is filed by the defendant, under Order 7 Rule 11 C.P.C., for rejection of the plaint, the defendant questioned the pecuniary jurisdiction of this Court. In such circumstances, the pecuniary jurisdiction can be decided only as a preliminary issue under Order 14 Rule 2 C.P.C. and not under the application under Order 7 Rule 11 C.P.C. Even though the application is filed for rejection of the plaint, for want of pecuniary jurisdiction, the plaint shall not be rejected and it can be returned for re-presentation before appropriate forum. So, instead of dismissing the application for rejection of the plaint, considering the pendency of the suit from 2009, it is appropriate on the part of this Court to decide as to whether this Court has pecuniary jurisdiction to decide the matter.
12. Now, this Court has to decide as to whether there is any mis-joinder of the causes of action. In this connection, it is relevant to notice Clause 14 of the Letters Patent, which reads as follows:
“Clause 14: Joinder of several causes of action.–And we do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as the High Court shall seem fit.”
13. In this regard, it is appropriate to consider the decisions relied on by the learned counsel for the parties:
(a) 1993 (2) M.L.J. 132 (Madras High Court-Division Bench): (Brooke Bond India Ltd. Vs. Balaji Tea (India) P. Ltd):
“5. We do not think it necessary to go further into the various aspects of the case that the learned single Judge has discussed in his judgment and we shall presently see as to what may be necessary for attracting Clause 14 of the Letters Patent and when. It is conceded when the suit in one part for the relief as to the copyright is maintainable exercising jurisdiction to amalgamate such causes of action that are closely allied and associated with the trade and business of the plaintiff and defendant in which trade and business the copyright involved is involved, the court should avoid multiplicity of the suit, and order joinder of causes of action….”
(b) 1993 (2) L.W. 453 (Division Bench of the Madras High Court): Food Corporation of India, etc. Vs. M/s.Mayavaram Financial Syndicate, etc.
“Clause 14 of the Letters Patent is not a provision wherein joinder of several causes of action is contemplated to amalgamate them to enhance the valuation so as to bring the case within the pecuniary jurisdiction of this Court. In fact, this clause has made no reference to the pecuniary jurisdiction of the Court. All that it says is, ‘High Court shall have original jurisdiction in respect of one of such causes of action’. Local limits of the ordinary original jurisdiction of the High Court are determined by the provisions in the original recitals of the Letters Patent of this Court, amended from time to time by the Madras High Court (Jurisdictional Limits) Amendment Act, 1927 as well as Madras High Court (Jurisdictional Limits) Amendment Act, 1947.”
“9. A Full Bench of this Court in the case of Ramamirtham v. Rama Film Service (AIR 1951 Madras 93 = (1951) 2 M.L.J. 121 (F.B) ) has considered the question, whether S.15, C.P.C. governs Chartered High Courts and whether in view of it all suits below Rs.10,000/- in value, now may be read Rs.1,00,000/- should not be instituted direct in the City Civil Court, in some details and since this question had arisen for the reason of a controversy, whether the High Court could transfer suits instituted on its original side before the Amendment Act under which the valuation was raised for the suit in the City Civil Court to rupees ten thousand, the court also considered the effect of the provisions in the Presidency Small Cause Courts Act, 1882, and various provisions of the Letters Patent of this Court in some details. Of the three Judges consisting the Bench, two delivered separate but concurring judgments and the third agreed with both of them. Satyanarayana Rao, J. in his judgment has expounded as follows:
“1. The High Court, therefore, has practically unlimited original jurisdiction except that if the debt or damage or the value of the property does not exceed Rs.100/- and the case is one which falls within the jurisdiction of the Small Cause Court at Madras the High Court in its original jurisdiction cannot try such a suit …
2. The local limits of the jurisdiction of the small cause court is co-extensive with the ordinary original civil jurisdiction of the High Court. A small cause court is empowered to try all suits of a civil nature subject to the exceptions contained in S.19 of the Act if the amount or value of the subject matter did not exceed Rs.2000/- and further subject to the conditions regarding the cause of action and the residence of the debts, contained in cls.(a) to (c) of S.18, S.21 of the Act, however, gave an option to the plaintiff, when the amount or value of the subject matter of the suit exceeded Rs.1000 to institute the suit either in the High Court on its original side or in the small cause court. In 1892 the Madras City Civil Court Act was passed by the Legislature which empowered the local Govt. by notification in the Official Gazette to establish a Court, to be called the Madras City Civil Court, with jurisdiction to receive, try and dispose of all suits and other proceedings of a Civil nature not exceeding RS.2500/- in value and arising within the City of Madras. …. In 1935 the Act was amended by introducing a new section, S.3 (already mentioned above). Appeal as against the decisions of the City Civil Court lie to the High Court and the right of appeal is conferred by S.15 of the Act.
3. The pecuniary jurisdiction of the Civil Civil Court is increased by Notification under S.3-A.”
We are saved of any further exercise into the controversy for the reason of a well considered verdict wherein Satyanarayana Rao,J. has also said:
“The first of the questions referred to us relates to the applicability of S.15 C.P.C. to Chartered High Courts. In other words, the question is if a suit is below rupees ten thousand in value, is the litigant bound to institute it is the City Civil Court, as the Court of the lowest grade competent to try it. S.15 of the Code directs that every suit shall be instituted in the Court of the lowest grade competent to try it. Under Cl.12 of the Letters Patent, subject to one qualification, the High Court has unlimited original jurisdiction and this jurisdiction was saved under S.16, City Civil Court Act (7 of 1892). Competency contemplated by this Section is pecuniary competency and it has been held that this Section lays down a rule of procedure and not of jurisdiction. While it enjoins the institution of a suit in the Court of the lowest grade competent to try it, it does not oust the jurisdiction of the Court of a higher grade. Even if the Court of a higher grade tries and disposes of a suit which could have been instituted in a court of a lower grade, the decision rendered is not without jurisdiction and is not a nullity.
It has now been decided by the Privy Council is Sabitri Thakurain v. Savi 48 Cal. 481 = AIR (8) 1921 P.C. 80 that the C.P.C. of 1908 and the rules contained in the orders apply to proceedings in the High Court, whether original or appellate, except so far as the Code expressly provided to the contrary. The question that actually arose for decision in that case was whether the provision in O.41, R.10, C.P.C., of 1908 applied to an appeal under Cl.15 of the Letters Patent as this provision was not expressly excluded by the Code and it was held that an appeal under S.15 of the Letters Patent was governed by that provision. The scheme of the Code, according to their Lordships of the Judicial Committee, is to provide
“Generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply. It confers a general rule making power saving only what is excepted in the body of the Code.”
It would appear, therefore, that unless there is some other provision which is inconsistent with S.15 or there is other reason for inferring that the Legislature did not intend by enacting S.15 in the Code to affect in any manner or to any extent the original civil jurisdiction conferred on the High Court under Cl.12 of the Letters Patent, S.15 necessarily would apply. S.15 occurs in the fascicule of Ss.15 to 20 relating to place of suing. The Calcutta High Court had occasion to examine the scheme of these sections in order to determine whether S.21 which is not expressly excluded under S.120 applied to the original jurisdiction of the High Court. The view taken by the Calcutta High Court was that it did not. Dealing with S.15 of the Code, Ranking, C.J. in Mahindra Chandra v. Lal Mohan 56 Cal. 949 = AIR (16) 1929 Cal. 358 observed that it had no application either in practice or in substance to the original jurisdiction of the High Court i.e., however, expressly stated that he was not considering the position of the City Civil Court in Madras or matters of that kind. The Rangoon High Court in Bank of Chettinad v. S.P.K.V.R.Firm, AIR (22) 1935 Rang. 517 = 160 I.C. 808 was also of opinion that S.15 did not apply to the High Court, in the exercise of its original civil jurisdiction notwithstanding that it is not one of the excepted Sections mentioned in S.120 of the Code. The conclusion was based on the arrangement of the group of sections relating to place of suing most of which were expressly excluded by S.120 as inapplicable to chartered High Courts.
In my view there is much to be said in favour of the view taken by the Calcutta and Rangoon High Courts in the two decisions above referred to. The City Civil Court Act expressly saved the original civil jurisdiction of the High Court and the policy of the Legislature has been not to touch the original jurisdiction of the High Court. The scheme of the entire group of sections relating to place of suing cannot be made applicable when a self-contained provision relating to place of suing was laid down in Cl.12 of the Letters Patent. The practice has also been so far not to apply S.15 to the original jurisdiction of the High Court.
Apart from this in my opinion proviso (1) to S.16, Madras City Civil Court Act, is clearly inconsistent with S.15 and does not make it obligatory on the plaintiff to choose the lowest Court of pecuniary jurisdiction to institute a suit when the conflict is between the City Civil Court and the High Court. The only disability which the proviso imposes in a case where a suit which ought to have been instituted in the City Court has been instituted in the High Court is that the successful plaintiff should be deprived of his costs and the successful defendant should be allowed his costs as between attorney and client. It must be remembered that O.7 R.10 was not made applicable to the chartered High Courts and if a plaint which ought to have been filed in a Court of lower pecuniary jurisdiction is in fact filed in the higher Court, viz., the High Court, the High Court cannot return the plaint and in such a case the High Court has the option of following one of two courses, provided in the first proviso to S.16 or to transfer the suit under proviso 2 to the said section. Proviso (1) recognises the right of the litigant to institute a suit which ought to have been filed in the City Civil Court even in the High Court and there is no mandatory provision like S.15 in the City Civil Court Act enjoining upon him the duty of resorting to the Court of lowest pecuniary jurisdiction. The proviso (1) to S.16, in my opinion, clearly negatives the applicability of S.15 when the City Civil Court happens to be the Court of the lowest grade competent to try the suit.
It was also argued with some force that the gradation contemplated by S.15 is only the gradation or subordination of courts provided in S.3 of the Code, S.3 says that for the purposes this Code, the District Court is subordinate to the High Court. Every civil court of a grade inferior to that of a District Court and every court of small causes is subordinate to the High Court and District Court. It follows that in the gradation of Courts contemplated by the Madras Civil Courts Act, i.e., the Munsif Court, the Sub Court, the District Court and the High Court and Small Causes Courts there are two kinds of gradation. One is the gradation beginning with the District Court and ending with the District Munsif’s Court so far as the institution of the suits is concerned and the High Court and the Small Causes and Court constituted another kind of gradation. At the head of all, no doubt, is the High Court but in the chain of gradation of Courts, the City Civil Court does not come in and it is possible to assume that for the purpose of the Code, the gradation contemplated is the gradation referred to in S.3. In this view S.15 would apply only when there is necessity to choose the forum in the gradation of Courts referred to in S.3. The lowest Court of pecuniary jurisdiction must be the Court in which the suit should be instituted. But S.3 speaks only of subordination of Courts and defines it whereas S.15 speaks of the Court of the lowest grade competent to try and competency in this section can only mean pecuniary competency. If this view of the section is right, it follows that when there are two Courts of different pecuniary Jurisdiction like the City Civil Court and the High Court exercising original civil jurisdiction, there is no reason for not treating the City Civil Court as the Court of the lower grade if the value of the suit is within the pecuniary jurisdiction of that Court. It is, therefore, difficult to restrict the meaning of S.15 in the manner contended.
But, for the reason, I have already given, I am definitely of opinion that S.15 has no application to the High Courts exercising ordinary original jurisdiction when there is a conflict between the original jurisdiction of the High Court and City Civil Courts Act. The answer, therefore, to the first question referred must, in my opinion, be in the negative.”
Viswanatha Sastri,J. who has delivered a separate Judgment, has started by saying:
“There are three Courts of different grades having original civil jurisdiction within the City of Madras, namely the High Court of Madras, the Madras City Civil Court and the Presidency Small Causes Court. The classes of suit triable by these Courts and the minimum and maximum limits of their pecuniary jurisdiction vary.”
and then proceeded to examine the relevant provisions to finally say as follows:
“The object of S.15 C.P.C. is to prevent superior Courts being flooded or overcrowded with suits triable by Courts of inferior grade. The Section merely regulates procedure and not jurisdiction. It does not deprive Courts of superior pecuniary grade of their jurisdiction to try suits which should ordinarily be tried by Courts of inferior grades. Ss.12 and 13 Madras Civil Courts Act (III of 1873) do not fix the lower limit of the pecuniary jurisdiction of District Munsifs, Subordinate Judges and District Judges. S.6, C.P.C. merely deprives a Court of an inferior grades of jurisdiction to try a suit the subject matter of which exceeds the pecuniary limit of its jurisdiction, this limit being imposed under the Madras Civil Courts Act and the Madras City Civil Courts Act. S.15 itself recognises that courts of more than one grade would have jurisdiction to try a suit by the use of the expression “court of the lowest grade” which would have no meaning if only one court had exclusive jurisdiction to try the suit. Consequently it has been held that a court of a superior grade does not act without jurisdiction in trying a suit which, under S.16 might and ought by reason of its valuation, to have been tried by an inferior court. ….
I am aware that it has been authoritatively decided by the Judicial Committee in Sabitri Thakurain v. Savi 48 Cal. 481 = AIR (8) 1921 P.C. 80 that the C.P.C. applies to proceedings on the original side of the High Court save and so far as the C.P.C. or the Original Side Rules of the High Court expressly provide the contrary and that there is nothing in the original side rules expressly excluding the operation of S.15, C.P.C. to suits on the original side of the High Court. It is also true that the C.P.C. is a consolidating enactment intended to be of wide and general application. All the same, can it be said that the general language of S.15, C.P.C. has by implication repealed the special provisions of the Letters Patent, the provisions of the Presidency Towns Small Causes Courts Act and the Madras City Civil Court (Act 7) already referred to? It is a question of construction whether S.16 C.P.C. has by necessary implication taken away a right of procedure provided for by these special enactments by substituting another procedure or left the procedure sanctioned by the special enactments unaffected. If there was an intention on the part of the Legislature to repeal the special enactments by enacting S.15, C.P.C. it could have been declared in express terms. No palpable absurdity results if both the provisions co-exist and there is no compelling reason why S.15 C.P.C. should not be interpreted as applying to cases and Courts not dealt with by the special enactments …..
If S.15, C.P.C. were held to apply to suits on the original side, it would pro tanto deprive the parties interested of their right to have their suits instituted and heard on the original side in the exercise of the jurisdiction conferred on the High Court by clause 12 of the Letters Patent. Where power is given to a suitor to take proceedings in different courts, he has a choice of the forum and his remedy is also subject to the laxfori. A suitor has a longer period of limitation for the institution of summary suits and the execution of decrees and a more expeditious remedy in some suits, if he were allowed to sue on the original side of this Court, than he would have if the suit were instituted by the City Civil Court. Unless the Court is driven to adopt such a construction, a repeal by implication of the special provisions conferring jurisdiction on the original side of the High Court and a choice of forum on the suitor, is not to be assumed. The omission of a reference to S.15 in S.120, C.P.C. which excludes Ss.16, 17 and 20 from application to the original side of the High Court is not a sufficient ground implying that all the other provisions not so expressly excluded by S.120 must be held to apply to suits on the original side. It seems to me that the only reasonable construction is to hold that S.15, C.P.C. as well as clause 12 of the Letters Patent stand together, the subject matter of Clause 12 of the Letters Patent not being dealt with S.15 C.P.C. It may be observed that the language of S.15, C.P.C. of 1882 was the same as that of S.15, C.P.C. of 1908. During all these years this Court as well as the other High Courts have consistently taken the view that S.15, C.P.C., does not govern suits on the original side of the High Court and does not override the provisions of the Letters Patent and the Presidency Towns Small Cause Courts Act and the Madras Civil Court Act. I recoil from overruling a construction of statutory provisions so long and so invariably acted upon by the Courts for over half a century, a construction which presumably reflected the intention of the Legislature and was therefore left unaffected by any amendment of the law. Having regard to the provisions of Clauses 11 and 12 of the Letters Patent, S.16 Madras City Civil Court Act Ss.21, 22 and 39 Presidency Towns Small Cause Courts Act. I am constrained to hold S.15, C.P.C. does not fit into this scheme of legislation and is therefore inapplicable to suits filed on the original side of the High Court. This is my answer to the first of the questions referred to us.”
10. The ratio of the judgment of the Full Bench, thus, is the same, as we have found earlier on our reading of the provisions in this behalf in the Letters Patent, the Madras City Civil Court Act as well as the Madras Presidency Small Cause Courts Act (as amended from time to time) that the High Court’s original side jurisdiction subject to conditions under Clause 12 is unlimited, the lower limit being suits of valuation of Rs.One hundred within the jurisdiction of the Madras Presidency Town Small Cause Court, concurrent, in so far as the jurisdiction of the said Court above Rs.100/- and of the City Civil Court is concerned and exclusive in respect of the suits valued above Rs.1 lakh. S.15 C.P.C. does not fit into the scheme of legislation so that it may be applied to exclude suits which ordinarily should be filed in the City Civil Court. Special jurisdiction of the High Court is not affected for the reason of the City Civil Court’s jurisdiction in respect of suits of valuation below Rs.1 lakh. Above aside, the lack of pecuniary jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction. This aspect of the law has been elaborately dealt with in a Full Bench judgment of the Patna High Court in the case of S.A.Sahay v. Shanpati Kuer AIR 1960 Patna 245 in which it is emphasized that a distinction must be drawn between cases where there is an inherent lack of jurisdiction, apparent on the face of records and cases where it is doubtful or atleast not so apparent whether the Court possesses jurisdiction or not. Where there is total lack of jurisdiction, nothing can confer the same on the Court and an objection to jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceedings of the court from the very initial stage is without jurisdiction and void. Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint if not challenged, manifestly bring the case within the jurisdiction of the Court, in which it is filed, its proceedings are perfectly with jurisdiction and want of jurisdiction in such case can rightly be waived. In other words, this kind of defect in jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction. After making reference to S.11 of the Suit Valuation Act, The Patna Full Bench said, the lack of pecuniary jurisdiction comes under the latter of the two kinds of defects as it shows clearly that there is no apparent, defect in the frame of a suit due to low valuation and it does not take away the inherent jurisdiction of the Court to entertain it. A dispute as to jurisdiction to try non-contentious cases by a Notification under S.265 of the Succession Act in Subordinate Courts, came for interpretation for the reason of difference of opinion between the learned Judges constituting different Benches before a Full Bench in the case of Subbarayalu Reddiar v. Rengammal 1962 (II) MLJ 318. When it was urged that since such cases were to be tried by the Subordinate Judges only and District Judges cease to have jurisdiction who otherwise were competent to try contentious applications for probate, etc., the Full Bench observed.
“Vesting of authority in a Subordinate Judge to entertain and dispose of contentious applications for probate etc. under S.29(1) of the Madras Civil Courts Act cannot take away the jurisdiction of the District Judge over such matters. The result is that both the Subordinate Judge and the District Judge will have concurrent jurisdiction to take cognizance of contentious applications for probate, etc.” relating to matters arising within the jurisdiction of the former. Under S.15 of the Civil Procedure Code where more than one court has a jurisdiction over the matter, the case should be instituted only in the Court of the lower grade competent to try it. The Sub Court being a Court lower to the District Court in the hierarchy of Courts the application for grant of probate or letters of administration will have to be instituted only in that court. But this is only a rule of procedure. Therefore S.15 of the Civil Procedure Code does not deprive the District Court of its jurisdiction. As observed by Pertharam, C.J. in Nidhi Lal v. Muzar Hussain ILR 7. All. 230.
“The word “shall” is in my opinion imperative on the suitors. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits. … The proviso is for the benefit of the Court of the higher grade and it is not bound to take advantage of it. If it does not wish to try the suit it may refuse to entertain it. If it wishes to retain the suit in its Court it may do so. It is not bound to refuse to entertain it.”
These observations were made with reference to a provision the Civil Procedure Code of 1882 (S.15) corresponding to S.15 of the Civil Procedure Code of 1908″.
The above observations, thus, take us to the conclusion:- the objection as to the jurisdiction to try the suit on the ground that its value was raised by misjoinder of causes of action, is misconceived to the extent that unless shown to be less than Rs.100/- falling within the jurisdiction of Small Cause Court the High Court’s original jurisdiction would extend to suits of every variety, if conditions under Clause 12 of the Letters Patent are satisfied. Since S.15 of the Code of Civil Procedure is not applied to the original jurisdiction of the High Court and there is no other provision to which any recourse can be had for the purpose of compelling the plaintiff/respondent to institute the suit in the court of the lowest grade competent to try it, we hold on the basis of the afore-mentioned authority of the Full Bench of this Court and the principle that lack of pecuniary jurisdiction is only an irregularity and not a total lack of jurisdiction, the suit even if it is valid less than Rs.1 lakhs, is not incompetent on the original side of the Court.”
… … ….
“12. On the parity of reasoning, thus, when it was brought to the notice of the learned single Judge that a suit has been brought before this Court by a combination of causes of action which otherwise were different and distinct and the City Civil Court had the pecuniary jurisdiction to entertain the suits, all that the court could do was to order transfer of the suit from the original side of this Court to the City Civil Court. This can be done at the presentation of the plaint before notice or after the defendant appears and files objection. It is one thing that the Court shall have jurisdiction notwithstanding S.15 of the C.P.C. and civil courts in the City are competent to entertain suits. It is another to ask the litigant to observe the rule of suing the lowest court competent to try the suit. Litigants may not be given the option to select their court. This court instead of proceeding in a suit of valuation below Rs.1 lakh may ask the litigant to go to the Court of First Instance. That is what this Court does. That is what propriety demands. If we say so with respect the whole thing got confused before the learned single Judge for the reason that joinder of several causes of action for the above purposes was mixed up with the power, which the Court has been given under Clause 14 of the Letters Patent. Clause 14 has already been quoted by us and we have recorded our opinion on it. No party had asked for joinder of several causes of action with a competent cause of action on the original civil side of the Court. The defendant’s objection was that in the suit, the plaintiff/respondent has brought in three actions based on three items of claims viz.
1. Deductions made in respect of Contracts covering items (i) and (ii) viz., transport of goods from Tiruchy rail head to destinations within a radius of 100 Kms. and transport of goods beyond a radius of 100 Kms., but below 200 Kms.
Rs.49,106.84.
2. Transport of foodgrains from Coimbatore, Udumalpet, and Tirupur to places within old and New Port of Tuticorin (item (iii) above
Rs.28,434.91
3. Transport of Fertilisers
from Tuticorin Port to places
beyond 300 Kms. (item No.(iv) above
Rs.35,581.55
—————-
Total Rs.1,13,123.30 -----------------
According to the defendant/appellant, these three were joined only for the purpose of bringing the suit within the pecuniary jurisdiction of the Court. i.e. above Rs.1 lakh. Apart from what has been noticed by us above as to the original jurisdiction of the Court under Clause 12 of the Letters Patent, when we advert to the facts stated in the plaint, we find it difficult to accept that a common suit for the three claims aforementioned has been filed on account of misjoinder of causes of action. It is well settled that cause of action is a fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court in other words, it is a bundle of facts which taken with the law applicable to them, gives the plaintiffs a right to relief against the defendant. A Full Bench of this Court in Lakshmi Narayana Chettiar, In re (1954 (1) M.L.J. 408) has defined cause of action as a fact which it traversed, would be necessary for the plaintiff to prove in order to entitle him to a judgment of the Court. The Supreme Court in the case of State of Rajasthan Vs. Swaika Properties AIR 1985 SC 1289 has defined cause of action to mean, every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court and added, in other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendants. A Division Bench of this Court of which one of us is a Member in the case of K.Murugesan v. Seethalakshmi 1992 (1) L.W. 277 has said.
“There can be hardly any dispute to such a wise approach to understand the expression ’cause of action’ and we see no reason to deviate.”
We respectfully adopt the same and add, it is only a material fact, which must be proved by the plaintiff and thus, it is only material facts that constitute the cause of action. Facts which the plaintiff may allege incidentally and facts which may be brought in evidence as res gestae, would not necessarily constitute a part of the cause of action. A distinction between facts which are relevant and material and those that are incidental and material is some times not easy to be drawn, but the said distinction is nevertheless important for the purpose of deciding which facts constitute the cause of action and which are not included in it. The instant case, however, is one in which in course of the various transactions, when the claims of the plaintiff were crystallized into the three items aforementioned according to the plaint, on the continued representation of the plaintiff, the defendant’s Regional Manager after more than a year, issued another order on 7.1.1982 instructing the District Manager, Food Corporation of India, Tuticorin, to refund to the plaintiff the amount realised by way of disposal of the stock of 87 bags of rice under dispute and the District Manager, Food Corporation of India, Tuticorin, informed the plaintiff on 22.4.1982 that whatever amount is refundable to the plaintiff in this connection, will be adjusted against the dues recoverable from the plaintiff in the work of transport of fertilizer from Tuticorin concerning the 4th contract. According to the plaintiff, no amount is due from the plaintiff to the defendant in the fertilizer movement and thus, the plaintiff approached the Zonal Manager, but the plaintiff has not received any order for or against from the Zonal Manager so far inspite of repeated reminder letters and so, the plaintiff is seeking remedy in the Honourable Court for the recovery of the amount from the defendant.
13. The other item of work, i.e. to say, the fourth item of work has also been stated and it is said, the plaintiff is entitled to recover the lawful sums due from the defendant in respect of the four items of work performed by the plaintiff and the withholding of a total sum of Rs.1,13,123.30 by the defendant is illegal and without any justification. The plaintiff has said that it has been trying to get back its money by all possible lawful means and as there was no response from the defendant, the plaintiff issued a notice through its counsel on 4.10.1983 and no reply has so far been received to that notice. We see thus that the parties had several transactions and in these finally, according to the plaint, the three aforementioned items remain unsettled, for which the plaintiff has filed the suit. It is a case in our opinion, in which there is hardly any scope to argue that there has been misjoinder of cause of action.”
(c) 2003 (2) TLNJ 257 (Madras High Court) (Sundaram Finance Limited Vs. M/s.The Craftsman Private Limited, No.808, Mount Road, Chennai-600 002 and another):
“Now it has to be seen whether this Court has jurisdiction? Clause-14 of the Letters Patent refers to joinder of several causes in the following words:
“14: JOINDER OF SEVERAL CAUSES OF ACTION:-And we do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as the High Court shall seem fit.”
A reading of this Clause-14 makes it clear that if the High Court has original jurisdiction in respect of one such causes of action, it shall be lawful to combine all such causes of action.
As per the City Civil Court Act, all suits of value less than Rs.10 lakhs shall be filed only in the City Civil Court, One of the cardinal principles of interpretation of statutes is that the interpretation shall be in such a manner not to invalidate any statute, unless the statute is invalid or unenforceable, for some reason, such as legislative competence or violation of the provisions of the Constitution. Wherever permissible the provisions of the Act shall be harmoniously construed in such a manner that the provisions are valid. Therefore, while considering the provisions of Section 12 of the Letters Patent and provisions of City Civil Court, the rule of harmonious construction should be applied. That is, the provisions of Letters Patent and that of the Civil Court Act should be construed in such a manner that provisions under both the Acts are valid. Applying such an interpretation it is clear that in so far as suits of the value less than Rs.10 lakhs, it is only the City Civil Court that has jurisdiction. It if is not so construed the provisions of City Civil Court Act would become ineffective. Such a construction is impermissible. Therefore, all suits for value less than Rs.10 lakhs shall be filed only in the City Civil Court.
Under Clause 14 of Letters Patent, where the plaintiff has several causes of action against the defendants and if the High Court shall have original jurisdiction in respect of one of such cases it shall be lawful to combine all the causes of action. Therefore, atleast with respect to one cause of action, the High Court should have original jurisdiction. But none of the claims in the hire purchase agreement individually, is more than Rs.10 lakhs in value. Therefore, High Court does not have original jurisdiction in respect of any one of the three hire purchase agreements. Therefore, the causes of action cannot be combined.”
14. As per Clause 14 of the Letters Patent and as reported in the decision reported in 2003 (2) TLNJ 257 (cited supra), if there is combination of several causes of actions, atleast with respect of one cause of action, this Court should have original jurisdiction and as observed in the said decision, none of the claims in the present suit is more than Rs.10 lakhs in value, and so, this Court does not have original jurisdiction in respect of any one of the claims.
15. In the said decision reported in 1993 (2) L.W. 453 (cited supra), the claims of the plaintiff therein were crystallized into the three items on the continued representation of the plaintiff, but in the present case, the first claim is for recovery of amount due on goods sold and the plaintiff herein also claims interest therein, as on the date of the filing of the suit and the total first claim comes to Rs.8,60,000/- approximately and the plaintiff herein also claims damages for loss of business and reputation for his defamation, at Rs.2 lakhs. So, both these claims are entirely different and separate cause of actions.
16. Furthermore, as per the decision reported in 1993 (2) L.W. 453 (cited supra), lack of pecuniary jurisdiction is not fundamental in character and it does not amount to anything more than a mere irregularity in exercise of jurisdiction. As held in the said decision reported in 1993 (2) L.W. 453 (cited supra), even if the Court of a higher grade tries and disposes of a suit, which could have been instituted in a Court of a lower grade, the decision rendered is not without jurisdiction and is not a nullity. 17. As per the Original Side Jurisdiction of this Court, only the suit which is valued more than Rs.10 lakhs, shall be filed before this High Court of Judicature.
18. As per the decision reported in 2003 (2) TLNJ 257 (cited supra), because of want of pecuniary jurisdiction, the plaint shall not be rejected and it can be returned for re-presentation before proper forum.
19. In the present case, the suit has been filed under Order 7 Rule 1 C.P.C. In such circumstances, as per the decisions reported in 1993 (2) L.W. 453 (cited supra) and 2003 (2) TLNJ 257 (cited supra), I am of the view that the suit shall not be dismissed for want of jurisdiction and it can be returned.
20. Furthermore, as per Order 14 Rule 2 C.P.C., the issue of jurisdiction has to be decided as a preliminary issue.
21. Moreover, as per the decision reported in 2003 (2) TLNJ 257 (cited supra), Clause 14 of the Letters Patent makes it clear that if the High Court has original jurisdiction in respect of one such causes of action, it shall be lawful to combine all such causes of action; the causes of action cannot be combined if the High Court does not have original jurisdiction at least with respect to one cause of action.
22. As per the decision reported in 1993 (2) LW 453 (cited supra), Clause 14 of the Letters Patent is not a provision wherein joinder of several causes of action is contemplated to amalgamate them to enhance the valuation so as to bring the case within the pecuniary jurisdiction of the High Court.
23. Further, as per the decision reported in 2003 (2) TLNJ 257 (cited supra), in the interest of justice, the plaint/suit shall be returned with a direction to re-present the same before appropriate forum.
24. Hence, instead of rejecting the present suit/plaint, the suit/plaint is hereby returned to the plaintiff, for re-presenting the same before appropriate forum.
25. With the above observations, A.No.6411 of 2009 in C.S.No.859 of 2009 is disposed of.
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