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CRA/139/2010 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 139 of 2010
With
CIVIL
REVISION APPLICATION No. 140 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DAMAN
GANGA BOARD MILLS PRIVATE LIMITED & 1 - Applicant(s)
Versus
INDO
PACIFIC SOFTWARE AND ENTERTAINMENT LIMITED - Opponent(s)
=========================================================
Appearance :
MR
DC DAVE for
Applicant(s) : 1 - 2.
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR.D
K.PUJ for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/11/2010
ORAL
JUDGMENT
1. Both
the present Revision Applications have been filed by the applicants
under Section 115 of Code of Civil Procedure to quash and set aside
the judgment and order dated 7th August 2010 passed by the
Additional Senior Civil Judge, Valsad below Exh.1 in Special Darkhast
No. 20 of 2008 and Special Darkhast No. 19 of 2008 on the grounds set
out in the applications, inter alia, that the decree was nullity
which has not been appreciated while passing the impugned order by
the executing Court.
2. Learned
Counsel Mr. DC Dave referred to the papers and submitted that the
respondent had filed Civil Suit Nos. 570 of 2001 and 571 of 2001
before the Civil Judge (S.D.), Nagpur for recovery of the amount and
the suits were decreed on 04.02.2006 against the applicants.
Thereafter, the respondent – decree holder sought the transfer
of the decree under Section 39 of Code of Civil Procedure for
execution at Valsad (Gujarat). It was registered as Special Darkhast
No. 20 of 2008 against which the present Civil Revision Application
No. 140 of 2010 has been filed and Special Darkhast No. 19 of 2008
against which the present Civil Revision Application No. 139 of 2010
has been filed. Learned Counsel Mr.Dave referred to the objections
which have been filed at Exh.13 in Special Darkhast No. 20 of 2008
and Exh.14 in Special Darkhast No. 19 of 2008 and submitted that as
the Court at Nagpur has no territorial jurisdiction, the decree was
nullity which has not been
appreciated by the executing Court at Valsad and therefore the
present Revisions Applications are filed. Learned Counsel Mr.Dhaval
Dave referred to the provisions of Code of Civil Procedure, and
particularly, Section 21 and submitted that the executing court was
duty bound to consider all the objections including with regard to
the decree having been null and void. He referred to the impugned
order passed by the executing court at Valsad and submitted that this
aspect has not been considered which has caused prejudice to the
applicants and therefore the present applications have been
preferred. He emphasized and submitted that either way the court was
required to decide the contention raised which is a right conferred
by the statute and therefore once such an objection is raised the
executing court ought to have considered the aspect about the
jurisdiction and decree being null and void. In support of his
submission, he has referred to and relied upon the judgment of the
Hon’ble Apex Court reported in AIR
1954 Supreme Court P. 340
in the case of Kiran
Singh and others v. Chaman Paswan and others
and emphasized the observations made in para 6 that, “It is a
fundamental principle well established 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. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of
the subject matter of the action, strikes at the very authority of
the Court to pass any decree, and such a defect cannot be cured even
by consent of parties.”
3. He
has also referred to and relied upon the judgment of the Hon’ble Apex
Court reported in AIR
1977 Supreme Court P. 1201 in
the case of Sunder
Dass v. Ram Prakash.
He referred to the observations made in para 3 and submitted that it
was competent to the executing court to examine whether the decree
for eviction was nullity or not and he submitted that as the
executing court at Valsad had failed to examine this aspect the order
is illegal and deserves to be set aside and the matter may be
remanded back for consideration. He emphasized and submitted that any
kind of jurisdiction can be questioned and he also tried to emphasize
that it is not limited to only one or two aspects about the pecuniary
or territorial and therefore once the objection is raised with regard
to the decree being null and void, it has to be considered, which is
not done so. For that purpose, he referred to the impugned order
passed by the executing court at Valsad and submitted that para 6
refers to this aspect and the reasoning given is that the civil Court
at Nagpur has decreed the suit considering the issue or the
contention about the jurisdiction and therefore the executing court
cannot go beyond the decree. Further, it has been considered that no
appeal or revision has been preferred. However,
learned Counsel Mr. Dave submitted that even if the appeal or
revision against the judgment and decree passed in the civil suit is
not preferred, still, however, it is open for the judgment debtor to
raise the contention about the nullity of the decree before the
executing court. He, therefore, submitted that as the executing
court at Valsad has failed to consider this aspect, the impugned
judgment and order deserve to be set aside and the matter is required
to be remanded back.
4. Learned
Counsel Mr. Dave also referred to the judgment reported in AIR 1966
Supreme Court 364. He also submitted that the cause of action cannot
be said to be arisen at Nagpur, as admittedly, the defendant has
shifted to Nagpur subsequently and therefore when the decree is
passed by the Court which had no territorial jurisdiction, it would
be null and void and if such a decree is permitted to be executed by
the executing court, it would cause prejudice to the applicants and
therefore the present application may be allowed.
5. Learned
Counsel Mr. Mihir Joshi, appearing with learned Advocate Ms. Puj, for
the respondents, submitted that the submissions made by the learned
Counsel for the applicants have to be considered in light of the
subsequent development i.e. amendment in the Code of Civil Procedure
in 1976. Learned Counsel Mr. Joshi has referred to and relied upon
the judgment
of the Hon’ble Apex Court reported in (2007)
13 SCC 650
in the matter of Subhash
Mahadevasa Habib v. Nemasa Ambasa Dharmadas (dead) by Lrs. & Ors.
and referring to the observations made therein, particularly para 32,
he submitted that the judgment cited by the learned Counsel for the
applicants is also considered and he emphasized that the Code of
Civil Procedure has made distinction between the lack of inherent
jurisdiction and objection to territorial and pecuniary jurisdiction.
He emphasized and submitted that when the decree is passed by the
Court lacking inherent jurisdiction, the decree is void in law, but
the decree passed by the court lacking the territorial jurisdiction
or pecuniary jurisdiction it does not become automatically void. He,
therefore, submitted that these submissions are misconceived. Again
referring to the facts, learned Counsel Mr. Joshi submitted that as
can be seen from the objections raised and the reply filed by the
respondent – decree holder there was a specific contention
raised with regard to the jurisdiction and the issue was framed by
the trial Court on the basis of material and evidence on record and
it was decided that it had jurisdiction and thereafter the suit has
been decreed. He, therefore, submitted that the findings of the trial
court at Nagpur in the civil suit on the issue regarding territorial
jurisdiction of the Court at Nagpur has become final and conclusive
as it has not been challenged before the higher forum by way of
appeal or revision. He emphasized
and submitted that as it has not been challenged before the higher
forum, which it could have been, it is not permissible to raise such
an objection at the time of execution before the executing court.
Learned Counsel Mr. Joshi submitted that the executing court at
Valsad has rightly considered this aspect while passing the order
below Exh.1 and this Court may not interfere with the same in
exercise of revisional jurisdiction. Learned Counsel Mr. Joshi
further submitted that, as rightly observed while passing the order
by the executing court that, it cannot examine the legality or
otherwise of the decree as the executing court cannot go beyond the
decree, and therefore, as there is no failure of justice to the
defendants in decreeing the suit, the same cannot be said to be bad
and illegal. He has also referred to and relied upon judgment of the
Hon’ble Apex Court reported in AIR 1993 Supreme Court 2094. He has
also referred to and relied upon the judgment of the Hon’ble Apex
Court reported in (1990)
1 SCC 193
in the case of Sushil
Kumar Mehta v. Gobind Ram Bohra (dead) through his Lrs.
and emphasized the observations made in para 26 that, “Thus it
is settled law that normally a decree passed by a Court of competent
jurisdiction, after adjudication on merits of the rights of the
parties, operates as res
judicate
in a subsequent suit or proceedings and binds the parties or the
persons claiming right, title or interest from the parties. Its
validity should be assailed only in an appeal or revision,
as the case may be. In subsequent proceedings its validity cannot be
questioned. A decree passed by a court without jurisdiction over the
subject matter or on other grounds which goes to the root of its
exercise or jurisdiction, lacks inherent jurisdiction. It is a coram
non judice.
A decree passed by such a court is a nullity and is non est. Its
invalidity can be set up whenever it is sought to be enforced or is
acted upon as a foundation for a right, even at the stage of
execution or in collateral proceedings.” He, therefore,
submitted that as this aspect about the jurisdiction is not an
inherent lack of jurisdiction and when it has not been challenged
before the higher forum for which such issue is decided by the trial
Court, it is not permissible to be raised at the time of execution
and the impugned order passed by the executing court at Valsad is
just and proper.
6. In
rejoinder, learned Counsel Mr. D.C.Dave referred to the amendment
made in Code of Civil Procedure in 1976 and submitted that even after
the amendment it will not have any bearing on this aspect. He, again,
referred to Section 21 of the Code of Civil Procedure which refers to
the objections to the jurisdiction and submitted that if such an
objection is permitted to be raised, it was obligatory for the
executing court to decide, which has not been decided and therefore
present application deserves to be allowed.
7. In
view of the rival submissions, it is required to be considered
whether the present revision applications can be entertained or not.
8. It
is well accepted that the scope of revisional jurisdiction is very
limited. It is also well settled that unless there is failure of
justice or any irreparable injury or there is a jurisdictional error
resulting in material irregularities in deciding the matter, the
scope of exercise of revisional jurisdiction is very limited.
Therefore, in context of this background, the submissions which have
been raised by learned counsel Mr. Dave are required to be
appreciated. Though the submissions have been made by learned counsel
Mr. Dave referring to Section 21 with regard to objections to the
jurisdiction, a close scrutiny of the provisions of the law as well
as the judgments referred to and relied upon will clearly suggest
that the submissions are without any merits. The provisions of
Section 21 are with regard to the objections as to the place of
suing, the pecuniary limits as well as the subject matter. Further,
by amendment in Code of Civil Procedure in 1976 as well as the
subsequent judicial pronouncements have made the position more clear.
It is well accepted that before such amendment in the Code of Civil
Procedure in 1976, the objection as to the place of suing
(territorial objection) was not to be allowed by the appellate or the
revisional court unless it was raised by the party at the earliest.
In fact by subsequent
amendment in the Code of Civil Procedure vide Civil Procedure
(Amendment) Act, 1976, there are three sub Sections with regard to
such objections and such objections are permitted to be raised. At
the same time, the Hon’ble Apex Court in a judgment reported in AIR
1962 Supreme Court 199
in the case of Hira
Lal v. Kali Nath
has clearly observed, “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.
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 a statutory recognition by enactments like Section 21 of the
Code of Civil Procedure.” Further, even the judgment of the
Hon’ble Apex Court referred to and relied upon by learned counsel Mr.
Dave in the case of Kiran
Singh (supra) has
to
be read in the context of the facts of given case. In this very
judgment, the Hon’ble Apex Court has observed, “The policy
underlying Sections 21 and 99, Code of Civil Procedure and Section 11
of the Suits Valuation Act is the same, namely, that when a case had
been tried by a Court on the merit and judgment rendered, it should
not be liable to be reversed purely on technical grounds, unless it
had resulted in failure of justice, and the policy of the legislature
has been to treat objections to jurisdiction
both territorial and pecuniary as technical and not open to
consideration by an appellate court, unless there has been a
prejudice on the merits.” Therefore, even in this judgment what
has been referred to is the aspect of, whether the decree was passed
in inherent lack of jurisdiction or there was only a technical defect
which could be waived or cured. The inherent lack of jurisdiction has
a reference to other aspects where the Court is not having any such
jurisdiction vested in it to decide the case. For example, when the
special statute specifically provides that jurisdiction of the civil
court is ousted or that any such dispute will be decided as per the
procedure under the special statute or the Tribunal established under
the Act, the civil Court may not have the jurisdiction. Therefore, it
will have a reference to the jurisdiction qua the subject matter or
qua the law. However, when there is no such provision as per the
provisions of Civil Procedure Code, civil Court will have the
jurisdiction depending upon the facts of each case including about
the territorial jurisdiction. Again, it has a reference to the cause
of action based on material and evidence. The aspect of territorial
jurisdiction could be decided on the basis of material and evidence
regarding the cause of action or part thereof having taken place
within the jurisdiction of that particular Court. The cause of action
is a bundle of essential facts which are necessary to be proved and
if the Court, after considering
the same, entertains the suit, there is no inherent lack of
jurisdiction.
9. On
the other hand, there may be objections which are said to be of
technical nature only. When the issue is with regard to pecuniary
jurisdiction, it would always be a technical defect which can be
cured. Further, even on the aspect of territorial jurisdiction, it is
a matter of appreciation of evidence. In the facts of the present
case, as discussed above, the specific contention was raised and
issue was framed by the trial Court, Nagpur and it had decided the
same issue of jurisdiction on the basis of the evidence. This aspect
has not been challenged before the Appellate or the Revisional Court.
Further, once such an issue has been raised and decided by a
competent Court, the only remedy available is to assail it by way of
an appeal or revision and this issue as to the jurisdiction would
have a bearing depending on the facts and evidence on record as there
might be a part of cause of action arisen within the said Court
giving rise to the jurisdiction. In the facts of the present case
also on the basis of evidence as it has been evident the part of
cause of action is said to have taken place within the jurisdiction
of Court at Nagpur. Further, these aspects which have been canvassed
have to be considered on the basis of the underlying policy of the
Code of Civil Procedure and as discussed above, the amendment in the
Code of Civil Procedure in 1976 and
thereafter subsequent judicial pronouncements have made the position
clear by making distinction between inherent lack of jurisdiction and
other defects which could be cured. It has been made more than clear
that when there is inherent lack of jurisdiction, the decree could be
null and void but not otherwise.
10. Further,
apart from the fact that the judgment and decree passed by the Court
at Nagpur has not been carried further by way of an appeal or
revision before the higher forum. Even the issue as regards the
jurisdiction could have been raised and insisted for being decided as
a preliminary issue is also not pressed and therefore the submissions
cannot be accepted. As stated above, unless there is a failure of
justice or any irreparable injury or there is jurisdictional error
resulting in material irregularities in deciding the matter, the
scope of exercise of revisional jurisdiction is very limited. As
there is no such error which may call for exercise of discretion
under Section 115, the present revision applications cannot be
entertained.
11. In
light of the above discussion, the submissions made by the learned
Counsel Mr. Dave cannot be accepted and the present revision
applications deserve to be rejected and accordingly stand rejected.
12. After
the order was pronounced, learned counsel Mr. Dave has requested for
stay of the operation of the order to enable the applicants to move
the higher forum to which learned counsel Mr. Joshi has objected.
However, in the interest of justice the operation of the order is
stayed for a period of four weeks to enable the applicants to
approach the higher forum.
(RAJESH
H. SHUKLA, J.)
jani
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