{"id":124103,"date":"2010-11-22T00:00:00","date_gmt":"2010-11-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daman-vs-both-on-22-november-2010"},"modified":"2015-07-24T19:48:04","modified_gmt":"2015-07-24T14:18:04","slug":"daman-vs-both-on-22-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daman-vs-both-on-22-november-2010","title":{"rendered":"Daman vs Both on 22 November, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Daman vs Both on 22 November, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCRA\/139\/2010\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nREVISION APPLICATION No. 139 of 2010\n \n\nWith\n\n\n \n\nCIVIL\nREVISION APPLICATION No. 140 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nDAMAN\nGANGA BOARD MILLS PRIVATE LIMITED & 1 - Applicant(s)\n \n\nVersus\n \n\nINDO\nPACIFIC SOFTWARE AND ENTERTAINMENT LIMITED - Opponent(s)\n \n\n=========================================================\nAppearance : \nMR\nDC DAVE for\nApplicant(s) : 1 - 2. \nMR MIHIR JOSHI, SENIOR ADVOCATE WITH MR.D\nK.PUJ for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 22\/11\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tBoth
\nthe present Revision Applications have been filed by the applicants
\nunder Section 115 of Code of Civil Procedure to quash and set aside
\nthe judgment and order dated 7th August 2010 passed by the
\nAdditional Senior Civil Judge, Valsad below Exh.1 in Special Darkhast
\nNo. 20 of 2008 and Special Darkhast No. 19 of 2008 on the grounds set
\nout in the applications, inter alia, that the decree was nullity
\nwhich has not been appreciated while passing the impugned order by
\nthe executing Court.\n<\/p>\n
2.\tLearned
\nCounsel Mr. DC Dave referred to the papers and submitted that the
\nrespondent had filed Civil Suit Nos. 570 of 2001 and 571 of 2001
\nbefore the Civil Judge (S.D.), Nagpur for recovery of the amount and
\nthe suits were decreed on 04.02.2006 against the applicants.
\nThereafter, the respondent – decree holder sought the transfer
\nof the decree under Section 39 of Code of Civil Procedure for
\nexecution at Valsad (Gujarat). It was registered as Special Darkhast
\nNo. 20 of 2008 against which the present Civil Revision Application
\nNo. 140 of 2010 has been filed and Special Darkhast No. 19 of 2008
\nagainst which the present Civil Revision Application No. 139 of 2010
\nhas been filed. Learned Counsel Mr.Dave referred to the objections
\nwhich have been filed at Exh.13 in Special Darkhast No. 20 of 2008
\nand Exh.14 in Special Darkhast No. 19 of 2008 and submitted that as
\nthe Court at Nagpur has no territorial jurisdiction, the decree was
\nnullity which has not been
\nappreciated by the executing Court at Valsad and therefore the
\npresent Revisions Applications are filed. Learned Counsel Mr.Dhaval
\nDave referred to the provisions of Code of Civil Procedure, and
\nparticularly, Section 21 and submitted that the executing court was
\nduty bound to consider all the objections including with regard to
\nthe decree having been null and void. He referred to the impugned
\norder passed by the executing court at Valsad and submitted that this
\naspect has not been considered which has caused prejudice to the
\napplicants and therefore the present applications have been
\npreferred. He emphasized and submitted that  either way the court was
\nrequired to decide the contention raised which is a right conferred
\nby the statute and therefore once such an objection is raised the
\nexecuting court ought to have considered the aspect about the
\njurisdiction and decree being null and void. In support of his
\nsubmission, he has referred to and relied upon the judgment of the
\nHon’ble Apex Court reported in AIR
\n1954 Supreme Court P. 340
\nin the case of Kiran
\nSingh and others v. Chaman Paswan and others
\nand<\/a> emphasized the observations made in para 6 that, “It is a
\nfundamental principle well established that a decree passed by a
\nCourt without jurisdiction is a nullity and that its invalidity could
\nbe set up whenever and wherever it is sought to be enforced or relied
\nupon, even at the stage of execution and even in collateral
\nproceedings. A defect of jurisdiction, whether it is pecuniary or
\nterritorial, or whether it is in respect of
\nthe subject matter of the action, strikes at the very authority of
\nthe Court to pass any decree, and such a defect cannot be cured even
\nby consent of parties.”\n<\/p>\n
3.\tHe
\nhas also referred to and relied upon the judgment of the Hon’ble Apex
\nCourt reported in AIR
\n1977 Supreme Court P. 1201 in
\nthe case of Sunder
\nDass v. Ram Prakash.\n<\/p>\n
He referred to the observations made in para 3 and submitted that it
\nwas competent to the executing court to examine whether the decree
\nfor eviction was nullity or not and he submitted that as the
\nexecuting court at Valsad had failed to examine this aspect the order
\nis illegal and deserves to be set aside and the matter may be
\nremanded back for consideration. He emphasized and submitted that any
\nkind of jurisdiction can be questioned and he also tried to emphasize
\nthat it is not limited to only one or two aspects about the pecuniary
\nor territorial and therefore once the objection is raised with regard
\nto the decree being null and void, it has to be considered, which is
\nnot done so. For that purpose, he referred to the impugned order
\npassed by the executing court at Valsad and submitted that para 6
\nrefers to this aspect and the reasoning given is that the civil Court
\nat Nagpur has decreed the suit considering the issue or the
\ncontention about the jurisdiction and therefore the executing court
\ncannot go beyond the decree. Further, it has been considered that no
\nappeal or revision has been preferred. However,
\nlearned Counsel Mr. Dave submitted that even if the appeal or
\nrevision against the judgment and decree passed in the civil suit is
\nnot preferred, still, however, it is open for the judgment debtor to
\nraise the contention about the nullity of the decree before the
\nexecuting court. He, therefore, submitted      that as the executing
\ncourt at Valsad has failed to consider this aspect, the impugned
\njudgment and order deserve to be set aside and the matter is required
\nto be remanded back.\n<\/p>\n
4.\tLearned
\nCounsel Mr. Dave also referred to the judgment reported in AIR 1966
\nSupreme Court 364. He also submitted that the cause of action cannot
\nbe said to be arisen at Nagpur, as admittedly, the defendant has
\nshifted to Nagpur subsequently and therefore when the decree is
\npassed by the Court which had no territorial jurisdiction, it would
\nbe null and void and if such a decree is permitted to be executed by
\nthe executing court, it would cause prejudice to the applicants and
\ntherefore the present application may be allowed.\n<\/p>\n
5.\tLearned
\nCounsel Mr. Mihir Joshi, appearing with learned Advocate Ms. Puj, for
\nthe respondents, submitted that the submissions made by the learned
\nCounsel for the applicants have to be considered in light of the
\nsubsequent development i.e. amendment in the Code of Civil Procedure
\nin 1976. Learned Counsel Mr. Joshi has referred to and relied upon
\nthe judgment
\nof the Hon’ble Apex Court reported in (2007)
\n13 SCC 650
\nin the matter of Subhash
\nMahadevasa Habib v. Nemasa Ambasa Dharmadas<\/a> (dead) by Lrs. & Ors.
\nand referring to the observations made therein, particularly para 32,
\nhe submitted that the judgment cited by the learned Counsel for the
\napplicants is also considered and he emphasized that the Code of
\nCivil Procedure has made distinction between the lack of inherent
\njurisdiction and objection to territorial and pecuniary jurisdiction.
\nHe emphasized and submitted that when the decree is passed by the
\nCourt lacking inherent jurisdiction, the decree is void in law, but
\nthe decree passed by the court lacking the territorial jurisdiction
\nor pecuniary jurisdiction it does not become automatically void. He,
\ntherefore, submitted that these submissions are misconceived. Again
\nreferring to the facts, learned Counsel Mr. Joshi submitted that as
\ncan be seen from the objections raised and the reply filed by the
\nrespondent – decree holder there was a specific contention
\nraised with regard to the jurisdiction and the issue was framed by
\nthe trial Court on the basis of material and evidence on record and
\nit was decided that it had jurisdiction and thereafter the suit has
\nbeen decreed. He, therefore, submitted that the findings of the trial
\ncourt at Nagpur in the civil suit on the issue regarding territorial
\njurisdiction of the Court at Nagpur has become final and conclusive
\nas it has not been challenged before the higher forum by way of
\nappeal or revision. He emphasized
\nand submitted that as it has not been challenged before the higher
\nforum, which it could have been, it is not permissible to raise such
\nan objection at the time of execution before the executing court.
\nLearned Counsel Mr. Joshi submitted that the executing court at
\nValsad has rightly considered this aspect while passing the order
\nbelow Exh.1 and this Court may not interfere with the same in
\nexercise of revisional jurisdiction. Learned Counsel Mr. Joshi
\nfurther submitted that, as rightly observed while passing the order
\nby the executing court that, it cannot examine the legality or
\notherwise of the decree as the executing court cannot go beyond the
\ndecree, and therefore, as there is no failure of justice to the
\ndefendants in decreeing the suit, the same cannot be said to be bad
\nand illegal.  He has also referred to and relied upon judgment of the
\nHon’ble Apex Court reported in AIR 1993 Supreme Court 2094. He has
\nalso referred to and relied upon the judgment of the Hon’ble Apex
\nCourt reported in (1990)
\n1 SCC 193
\nin the case of Sushil
\nKumar Mehta v. Gobind Ram Bohra<\/a> (dead) through his Lrs.
\nand emphasized the observations made in para 26 that, “Thus it
\nis settled law that normally a decree passed by a Court of competent
\njurisdiction, after adjudication on merits of the rights of the
\nparties, operates as   res
\njudicate
\nin a subsequent suit or proceedings and binds the parties or the
\npersons claiming right, title or interest from the parties. Its
\nvalidity should be assailed only in an appeal or revision,
\nas the case may be. In subsequent proceedings its validity cannot be
\nquestioned. A decree passed by a court without jurisdiction over the
\nsubject matter or on other grounds which goes to the root of its
\nexercise or jurisdiction, lacks inherent jurisdiction. It is a coram
\nnon judice.\n<\/p>\n
A decree passed by such a court is a nullity and is non est. Its
\ninvalidity can be set up whenever it is sought to be enforced or is
\nacted upon as a foundation for a right, even at the stage of
\nexecution or in collateral proceedings.” He, therefore,
\nsubmitted that as this aspect about the jurisdiction is not an
\ninherent lack of jurisdiction and when it has not been challenged
\nbefore the higher forum for which such issue is decided by the trial
\nCourt, it is not permissible to be raised at the time of execution
\nand the impugned order passed by the executing court at Valsad is
\njust and proper.\n<\/p>\n
6.\tIn
\nrejoinder, learned Counsel Mr. D.C.Dave referred to the amendment
\nmade in Code of Civil Procedure in 1976 and submitted that even after
\nthe amendment it will not have any bearing on this aspect. He, again,
\nreferred to Section 21 of the Code of Civil Procedure which refers to
\nthe objections to the jurisdiction and submitted that if such an
\nobjection is permitted to be raised, it was obligatory for the
\nexecuting court to decide, which has not been decided and therefore
\npresent application deserves to be allowed.\n<\/p>\n
7.\tIn
\nview of the rival submissions, it is required to be considered
\nwhether the present revision applications can be entertained or not.\n<\/p>\n
8.\tIt
\nis well accepted that the scope of revisional jurisdiction is very
\nlimited. It is also well settled that unless there is failure of
\njustice or any irreparable injury or there is a jurisdictional error
\nresulting in material irregularities in deciding the matter, the
\nscope of exercise of revisional jurisdiction is very limited.
\nTherefore, in context of this background, the submissions which have
\nbeen raised by learned counsel Mr. Dave are required to be
\nappreciated. Though the submissions have been made by learned counsel
\nMr. Dave referring to Section 21 with regard to objections to the
\njurisdiction, a close scrutiny of the provisions of the law as well
\nas the judgments referred to and relied upon will clearly suggest
\nthat the submissions are without any merits. The provisions of
\nSection 21 are with regard to the objections as to the place of
\nsuing, the pecuniary limits as well as the subject matter. Further,
\nby amendment in Code of Civil Procedure in 1976 as well as the
\nsubsequent judicial pronouncements have made the position more clear.
\nIt is well accepted that before such amendment in the Code of Civil
\nProcedure in 1976, the objection as to the place of suing
\n(territorial objection) was not to be allowed by the appellate or the
\nrevisional court unless it was raised by the party at the earliest.
\nIn fact by subsequent
\namendment in the Code of Civil Procedure vide Civil Procedure
\n(Amendment) Act, 1976, there are three sub Sections with regard to
\nsuch objections and such objections are permitted to be raised. At
\nthe same time, the Hon’ble Apex Court in a judgment reported in AIR
\n1962 Supreme Court 199
\nin the case of Hira
\nLal v. Kali Nath
\nhas clearly observed, “It is well settled that the objection as
\nto local jurisdiction of a court does not stand on the same footing
\nas an objection to the competence of a court to try a case.
\nCompetence of a court to try a case goes to the very root of the
\njurisdiction, and where it is lacking, it is a case of inherent lack
\nof jurisdiction. On the other hand an objection as to the local
\njurisdiction of a court can be waived and this principle has been
\ngiven a statutory recognition by enactments like Section 21 of the
\nCode of Civil Procedure.” Further,  even the judgment of the
\nHon’ble Apex Court referred to and relied upon by learned counsel Mr.
\nDave in the case of Kiran
\nSingh (supra) has
\nto
\nbe read in the context of the facts of given case. In this very
\njudgment, the Hon’ble Apex Court has observed, “The policy
\nunderlying Sections 21 and 99, Code of Civil Procedure and Section 11
\nof the Suits Valuation Act is the same, namely, that when a case had
\nbeen tried by a Court on the merit and judgment rendered, it should
\nnot be liable to be reversed purely on technical grounds, unless it
\nhad resulted in failure of justice, and the policy of the legislature
\nhas been to treat objections to jurisdiction
\nboth territorial and pecuniary as technical and not open to
\nconsideration by an appellate court, unless there has been a
\nprejudice on the merits.” Therefore, even in this judgment what
\nhas been referred to is the aspect of, whether the decree was passed
\nin inherent lack of jurisdiction or there was only a technical defect
\nwhich could be waived or cured. The inherent lack of jurisdiction has
\na reference to other aspects where the Court is not having any such
\njurisdiction vested in it to decide the case. For example, when the
\nspecial statute specifically provides that jurisdiction of the civil
\ncourt is ousted or that any such dispute will be decided as per the
\nprocedure under the special statute or the Tribunal established under
\nthe Act, the civil Court may not have the jurisdiction. Therefore, it
\nwill have a reference to the jurisdiction qua the subject matter or
\nqua the law. However, when there is no such provision as per the
\nprovisions of Civil Procedure Code, civil Court will have the
\njurisdiction depending upon the facts of each case including about
\nthe territorial jurisdiction. Again, it has a reference to the cause
\nof action based on material and evidence. The aspect of territorial
\njurisdiction could be decided on the basis of material and evidence
\nregarding the cause of action or part thereof having taken place
\nwithin the jurisdiction of that particular Court. The cause of action
\nis a bundle of essential facts which are necessary to be proved and
\nif the Court, after considering
\nthe same, entertains the suit, there is no inherent lack of
\njurisdiction.\n<\/p>\n
9.\tOn
\nthe other hand, there may be objections which are said to be of
\ntechnical nature only. When the issue is with regard to pecuniary
\njurisdiction, it would always be a technical defect which can be
\ncured. Further, even on the aspect of territorial jurisdiction, it is
\na matter of appreciation of evidence. In the facts of the present
\ncase, as discussed above, the specific contention was raised and
\nissue was framed by the trial Court, Nagpur and it had decided the
\nsame issue of jurisdiction on the basis of the evidence. This aspect
\nhas not been challenged before the Appellate or the Revisional Court.
\nFurther, once such an issue has been raised and decided by a
\ncompetent Court, the only remedy available is to assail it by way of
\nan appeal or revision and this issue as to the jurisdiction would
\nhave a bearing depending on the facts and evidence on record as there
\nmight be a part of cause of action arisen within the said Court
\ngiving rise to the jurisdiction. In the facts of the present case
\nalso on the basis of evidence as it has been evident the part of
\ncause of action is said to have taken place within the jurisdiction
\nof Court at Nagpur. Further, these aspects which have been canvassed
\nhave to be considered on the basis of the underlying policy of the
\nCode of Civil Procedure and as discussed above, the amendment in the
\nCode of Civil Procedure in 1976 and
\nthereafter subsequent judicial pronouncements have made the position
\nclear by making distinction between inherent lack of jurisdiction and
\nother defects which could be cured. It has been made more than clear
\nthat when there is inherent lack of jurisdiction, the decree could be
\nnull and void but not otherwise.\n<\/p>\n
10.\tFurther,
\napart from the fact that the judgment and decree passed by the Court
\nat Nagpur has not been carried further by way of an appeal or
\nrevision before the higher forum. Even the issue as regards the
\njurisdiction could have been raised and insisted for being decided as
\na preliminary issue is also not pressed and therefore the submissions
\ncannot be accepted. As stated above, unless there is a failure of
\njustice or any irreparable injury or there is jurisdictional error
\nresulting in material irregularities in deciding the matter, the
\nscope of exercise of revisional jurisdiction is very limited. As
\nthere is no such error which may call for exercise of discretion
\nunder Section 115, the present revision applications cannot be
\nentertained.\n<\/p>\n
11.\tIn
\nlight of the above discussion, the submissions made by the learned
\nCounsel Mr. Dave cannot be accepted and the present revision
\napplications deserve to be rejected and accordingly stand rejected.\n<\/p>\n
12.\tAfter
\nthe order was pronounced, learned counsel Mr. Dave has requested for
\nstay of the operation of the order to enable the applicants to move
\nthe higher forum to which learned counsel Mr. Joshi has objected.
\nHowever, in the interest of justice the operation of the order is
\nstayed for a period of four weeks to enable the applicants to
\napproach the higher forum.\n<\/p>\n
(RAJESH
\nH. SHUKLA, J.)<\/p>\n
jani<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Daman vs Both on 22 November, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-124103","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDaman vs Both on 22 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/daman-vs-both-on-22-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daman vs Both on 22 November, 2010 - 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