Code of Civil Procedure (5 of 1908), Section 20(c) - Territorial jurisdiction - Promissory note executed by appellant in favour of respondent in Soudi Arabia, both residing and carrying on business there - Respondent filing a suit for the recovery of the amount in the Court at Attingal, Kerala - Subsequent to the filing of the suit appellant voluntarily residing at Kerala - Hence contending that the Court at Attingal had territorial jurisdiction to entertain the suit - Held, material date for determining jurisdiction in the date of institution of the suit - Court at Attingal had no jurisdiction to entertain the suit - Change of residence subsequent to filing of the suit would not confer territorial jurisdiction on the Court which it did not have.
"The material date for the purpose of invoking Section 20 of the Code of Civil Procedure is one of institution of the suit and not the subsequent change of residence. Change of residence subsequent to decision of the Court would not confer territorial jurisdiction in the Court which it did not have."
Mohannakumaran Nairvs. Vijayakumaran Nair
DATE OF JUDGMENT: 11/10/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No. 12398 OF 2006]
S.B. SINHA, J
1. Leave granted.
2. Appellant is said to have borrowed a sum of Rs.6,02,000/- (Rupees
Six Lacs Two Thousand Only) from the respondent. The said transaction
was carried out at Saudi Arabia. Appellant executed a promissory note on
8.5.1999. Admittedly, the parties were residing at Saudi Arabia at the
relevant time. No part of the cause of action arose within the jurisdiction of
the Court of Subordinate Judge, Attingal. Respondent herein filed a suit for
recovery of the aforementioned amount in the Subordinate Court at Attingal.
Although both the parties were residing in Saudi Arabia, Plaintiff filed a suit
in the Court of Subordinate Judge, Attingal for recovery of the said amount
sometime in the year 2002. Appellant having been summoned, appeared in
the suit. He, inter alia, raised an issue of lack of territorial jurisdiction on
the part of the said court to entertain the suit. By an Order dated 15.3.2005,
the application of the appellant was dismissed by the Ld. Trial Judge
holding:
Admittedly the transaction took place at Riyadh in
Soudi Arabia which is beyond the jurisdiction of this
court. According to the defendant since the transaction
took place beyond jurisdiction of this court it lacks
territorial jurisdiction to entertain the suit. At the same
time plaintiff would contend that this court has territorial
jurisdiction since the defendant is a resident within the
jurisdiction of this court. As per Section 20(a) C.P.C.
every suit shall be instituted in a Court within the local
limits of whose jurisdiction the defendant actually and
voluntarily resides or carries on business or personally
works for gain. From the address given in the plaint and
from the averments in the plaint it can be seen that
defendant is a resident of Kadinamkulam Village which
is within the jurisdiction of this court. Defendant himself
has no case that he is not a resident within the jurisdiction
of this Court. That being so this court has territorial
jurisdiction to entertain the suit. Contention to the
contrary raised by the defendant is devoid of any merit
and is liable to be rejected. Issue No. 1 is thus found in
favour of the plaintiff.
3. Appellant filed a civil revision thereagainst before the High Court of
Kerala which was marked as CRP No. 820 of 2005. By reason of the
impugned judgment, a learned Single Judge of the said Court relying or on
the basis of Section 20 (c) of the Code of Civil Procedure and upon placing
the legislative history of the said provision, opined :
20. Thus I agree with the learned counsel for the
revision petitioner that strictly the court did not have
territorial jurisdiction to entertain the suit on the date of
the suit. The question of the nature of relief that has to
be granted to the defendant arises for consideration now.
Even if the suit were to be returned, on admitted facts
that has to be represented to the same court now as
admittedly after the filing the suit the
petitioner/defendant is residing permanently, actually and
voluntarily in India. Any and every error will not
persuade the court to exercise its revisional jurisdiction.
Such jurisdiction has to be invoked only in aid of justice.
I take note that there is no serious dispute raised about
liability or the execution of the promissory Note. There
is also no serious contention that if the plaint were
returned accepting the plea regarding jurisdiction, it has
to be represented to the same court as by then the
petitioner had started permanent, actual and voluntary
residence in India. I am in these circumstances satisfied
that the suit is liable to be considered and disposed of by
the court of Subordinate Judge of Attingal and the same
need not be directed to be returned.
4. Mr. P.S. Narasimha, learned counsel appearing on behalf of the
appellant in support of this appeal submitted that the High Court itself
having arrived at a finding that the suit was not maintainable, could not have
refused to exercise its revisional jurisdiction. Although, no oral argument
was advanced before us on behalf of the respondents, a Written Submission
has been filed supporting the impugned judgment.
5. The Court undoubtedly, exercises a discretionary jurisdiction in terms
of Section 115 of the Code of Civil Procedure. Discretion, however, as is
well known must be exercised in accordance with law and not de-hors the
same. See Reliance Airport Developers Pvt. Ltd. Vs. Airports Authority of
India and Ors. [2006 (11) SCALE 208].
6. A suit can be filed only when there exists a cause of action and which
have arisen within the jurisdiction of the Court.
7. Sections 15 and 20 of the Code of Civil Procedure provides for the
place where a suit can be filed. Section 15 mandates that suit shall be
instituted in the Court which is competent to try.
8. The question in regard to the jurisdiction is required to be determined
with reference to the date on which the suit is filed and entertained and not
with reference to a future date. Sections 15 and 19 regulates the filing of the
suit at the places where cause of action has arisen. Section 20 operates
subject to the limitation contained in Sections 15 to 19. Place of residence
of the defendant being one of the exceptions thereto. Plaintiff is the dominus
litus, but he can file a suit only at one or the other places specified in the
Code of Civil Procedure and not at any place where he desires.
9. In New Moga Transport Company Vs. United India Insurance Co.
Ltd. and Ors. [AIR 2004 SC 2154], this Court held;
19. The intention of the parties can be culled out from
use of the expressions only , alone , exclusive and
the like with reference to a particular Court. But the
intention to exclude a Court s jurisdiction should be
reflected in clear, unambiguous, explicit and specific
terms. In such case only the accepted notions of contract
would bind the parties. The first appellate Court was
justified in holding that it is only the Court at Udaipur
which had jurisdiction to try the suit.
10. A distinction must be borne in mind between exercise of jurisdiction
by a Civil Court and a Writ Court in this behalf. See M/s. Kusum Ingots and
Alloys Ltd. Vs. Union of India and Another [AIR 2004 SC 2321]. See also
Ambika Industries Vs. Commissioner of Central Excise [2007 (8) SCALE
488].
11. Ordinarily, the rights and obligations of the parties are to be worked
out with reference to the date of institution of the suit. See Jindal
Vijayanagar Steel (JSW Steel Ltd.) Vs Jindal Praxair Oxygen Company Ltd.
[2006(8)SCALE668] Determination in regard to maintainability of the
suit, it is trite, must be made with reference to the date of the institution of
the suit. If a cause of action arises at a later date, a fresh suit may lie but that
would not mean that the suit which was not maintainable on the date of its
institution, unless an exceptional case is made out therefor can be held to
have been validly instituted. Discretion, as is well known, cannot be
exercised, arbitrarily or capriciously. It must be exercised in accordance
with law. When there exists a statute, the question of exercise of
jurisdiction which would be contrary to the provisions of the statute would
not arise.
12. Application of doctrine of dominus litus is confined only to the cause
of action which would fall within Sections 15 to 18 of the Code of Civil
Procedure. It will have no application in a case where the provision of
Section 20 thereof is sought to be invoked.
13. It is one thing to say that the parties had their residences in India but
the same would not mean that a suit could be filed at any of the places where
the defendant resides. At all material times, the parties were at Saudi
Arabia. They were residing there only. They had been working for gain in
that country. It is also not a case where under the promissory note the
amount was to be paid in India. There is nothing on record to show that any
demand was made within the State of Kerala and the defendant was under
any contractual obligation to pay the said amount in Kerala where the
demand has been communicated.
14. The High Court itself has held that no part of cause of action arose in
the State of Kerala. Respondent has not questioned that part of the order
before this Court questioning the said finding.
15. Respondent, therefore, in our opinion cannot be permitted to raise the
said plea before us for the first time.
16. The contention raised on behalf of the respondent that a part of cause
of action not arise within the jurisdiction of the trial court as the appellant
made a commitment of payment of the amount within the jurisdiction
thereof, cannot be accepted for more than one reason. Firstly, because no
such contention had been raised before the High Court. Secondly, because
the High Court itself has arrived at a finding that the learned Trial Judge had
no territorial jurisdiction to entertain the suit. It is also not a case where the
petitioner had been residing within the local limits of the jurisdiction of the
court where the defendant at the time of commencement of the suit was
actually or voluntarily residing or carried on business or personally worked
for gain.
17. He, at the material time, had been residing in Saudi Arabia.
18. The material date for the purpose invoking Section 20 of the Code of
Civil Procedure is the one of institution of the suit and not the subsequent
change of residence. Change of residence subsequent to decision of the
Court would not confer territorial jurisdiction in the Court which it did not
have.
19. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The appeal is allowed. But, in the
facts and circumstances of the case, there shall be no order as to costs.
CASE NO.:
Appeal (civil) 4811 of 2007
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