Sub-sections 1 and 2 of Section 21 of the CPC deal
with powers of appellate or revisional Court to consider the
objections as to the place of suing and pecuniary limits of
jurisdiction of Civil Court. They lay down the conditions for
exercise of power thereunder to allow such objections by the
appellate or revisional Court. These conditions are:-
(I) such objections must be taken in the Court of first
instance at the earliest possible opportunity,
(2) they must be taken in all cases where issues are
settled, at or before settlement of issues.
(3) there has been a consequent failure of justice.
21. In the case of RSDV finance company (supra)
Hon'ble Apex Court has held that the objection as to the place
of suing can be allowed by the appellate or revisional Court only
when above referred three conditions are fulfilled.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR.
SECOND APPEAL NO. 130 OF 2011.
Sureshkumar S/o. Rochiram Jagyasi, Vs Maharashtra State Electricity Distribution Company Ltd.,
CORAM:-S. B. SHUKRE, J.
PRONOUNCED ON :26TH FEBRUARY, 2014.
Citation;2015(2) ALLMR748
This appeal is preferred against the judgment and
decree passed by the District Judge-I Nagpur in Regular Civil
Appeal No. 162/1997 on 30.1.2009 thereby allowing the appeal
filed against the judgment and decree passed in Regular Civil
Suit No. 477/1994 by the Joint Civil Judge, Junior Division,
Nagpur on 12.12.1996.
2. The facts leading to filing of the present appeal are
stated in brief as under:-
The appellant is the original plaintiff in a suit instituted
by him against the respondent herein. The suit filed by the
appellant was for declaration and permanent injunction. It was
the case of the appellant that the appellant was customer of
the respondent and the respondent supplied electricity to the
appellant at his stone crushing unit situated at Village Khapri,
Taluka Kalmeshwar, District Nagpur.
In the said suit, the appellant disputed the bill issued for
month of January, 1994, for `.67,059.30 paise. The said bill was
issued by the respondent herein after a flying squad of the
respondent having visited the appellant's unit in his absence
had found that appellant was consuming more electricity than
sanctioned load of electricity. The appellant submitted that he
did not violate any rule of electricity board . As the respondent
threatened the appellant with discontinuation of the supply of
electricity for non payment of amount of said bill and the
demand being illegal and arbitrary the appellant filed the said
suit, which came to be numbered as Regular Civil Suit No.
477/1994.
3. The respondent resisted the suit by filing its written
statement. It was contended by the respondent that during
the surprise visit of the flying squad at the unit of the appellant,
it was disclosed that the appellant was using load of electricity
more than what was actually sanctioned and, therefore, the
claim of bill made by the respondent was not arbitrary and
illegal. The respondent also contended that the Court of Civil
Judge, Junior Division at Nagpur did not have necessary
territorial and pecuniary jurisdiction to entertain the suit, apart
from the fact that the suit was under valued.
4. On such rival pleadings, the trial Court framed the
issues and after considering the evidence adduced by the
parties and arguments of both the sides, learned Civil Judge
Junior Division, Nagpur allowed the suit by his judgment and
decree passed on 12.12.1996. Learned civil Judge, declared
that the respondent had no right to demand the arrears of the
electricity bill of `.67,049.30 paise on the basis of the report of
flying squad and permanently restrained the respondent from
disconnecting the electricity supply of the plaintiff’s unit on
the basis of vague report of flying squad.
5. Being aggrieved by the judgment and decree, the
respondent preferred an appeal before the District Court. It was
numbered as Regular Civil Appeal No. 162/1997. The learned
District Judge after considering the evidence and arguments of
both sides came to the conclusion that the suit was not
maintainable before the Court of Civil Judge, Junior Division,
Nagpur for want of territorial jurisdiction and incorrect valuation
of claim for the purpose of payment of Court fees, thereby
allowing the appeal. He quashed and set aside the judgment
and decree passed by the trial Court and consequently
dismissed the suit of the appellant.
6. Not satisfied, the appellant is before this Court in
the present Second Appeal.
7. This appeal has been admitted by this Court on
substantial questions of law on 15.10.2013. The substantial
questions of law which have now come up for consideration of
this Court are as follows:-
(1) When the first appellate Court came to the
conclusion that the trial Court lacked
jurisdiction, could it in law allow the appeal
and dismiss the suit in stead of returning the
plaint to be presented before the appropriate
Court in view of the provisions of Order VII
Rules 10 and 11 of the Civil Procedure Code?
(2) Whether the first appellate Court fell in error in
concluding that the trial Court lacked the
territorial and pecuniary jurisdiction to
entertain the suit filed by the appellant?
8. I have heard Shri Shyam Dewani, learned counsel
for the appellant and Shri R. E. Moharir, learned counsel for the
respondent. With their assistance, I have carefully gone
through the impugned judgment and decree, the judgment and
decree passed by the trial Court and the paper book of this
appeal.
9. The judgment and decree of the learned District
Judge impugned herein shows that learned District Judge,
referring to Sections 15 and 16 of the Civil Procedure Code,
1908( hereinafter referred to as “ the CPC” for short) found that
since the stone crushing unit of the plaintiff was within the
limits of Kalmeshwar taluka in the jurisdiction at Saoner Civil
Court and the suit was under valued, the suit was not
maintainable before the Court of Civil Judge, Junior Division at
Nagpur. After having found lack of territorial and pecuniary
jurisdiction on the part of the Civil Judge, Junior Division Nagpur,
learned District Judge went on to quash and set aside the
judgment and decree passed by the trial Court and thereby
dismissing the suit itself. It is here that the learned counsel for
the appellant has taken a strong exception to the action of the
District Judge in dismissing the suit itself.
10. Shri Dewani, learned counsel, submits that when a civil
Court comes to the conclusion that it has no territorial or
pecuniary jurisdiction the appropriate course for it would be to
return the plaint in view of the provisions of Order 7 Rules 10
and 11 of the CPC. In support, he places reliance upon the law
laid down in the case of R. S. D. V. Finance Co. Pvt. Ltd Vs.
Shree Vallabh Glass Works Ltd , AIR 1993 SC 2094. Shri
Moharir, learned counsel for the respondent, however, does not
agree. He submits that since the power under Rule 10 Order 7
of the CPC is discretionary, any refusal to exercise that power
by the Civil Court cannot be challenged unless, it is shown to be
exercised arbitrarily resulting in failure of justice. He submits
that under Order 7 Rule 11 of the CPC, the Civil Court is clothed
with power to reject the plaint when from the statement made
in the plaint, the suit appears to be barred by any law (clause
(d)) or the plaint does not disclose any cause of action(clause
(a)). He further submits that in this case the suit as filed by
the appellant did not disclose any such cause of action as could
have been taken cognizance of by the Civil Court situated at
Nagpur and whatever cause of action was there, it had arisen
within the local limits of the Court at Saoner and therefore,
learned District Judge was right in dismissing the suit.
11. So far as the provision of Rule 11 Order 7 of the CPC
is concerned, it is very clear that it does not confer any power
upon the Court to dismiss the suit itself. The only power
available to the Court under this rule is the rejection of the
plaint and that is something which is to be done by the Civil
Court not on merits of the case but upon consideration of the
statements made and the reliefs claimed in the plaint and
nature of the plaint. This rule does not contemplate dismissal of
the suit on merits and this can be seen to be clarified by further
provision made under Rule 13 of Order 7. It states that
rejection of the plaint on any of the grounds mentioned earlier,
that is, those under Rule 11, shall not by itself prevent the
plaintiff from presenting a fresh plaint in respect of the same
cause of action. Therefore, if the learned district Judge found
that the cause of action disclosed in the plaint was not of such
a nature as could have been taken cognizance of by Nagpur
Court, the learned District Judge at the most, though it is a
doubtful proposition, could have rejected the plaint by resorting
to Rule 11 of Order 7 of the CPC. That apart, certainly he could
have taken recourse to provision of Rule 10 Order 7 and
returned the plaint for its being presented to proper Court, if he
was of the opinion that Civil Court at Nagpur had no territorial
and pecuniary jurisdiction to try the suit. Learned Counsel for
respondent, however, submits that power of Civil Court under
Rule 10 Order 7 being discretionary, can be refused to be
exercised in appropriate cases. So, let us see what this rule
says.
10. Return of plaint:- (1) Subject to the provisions
of rule 10A, the plaint shall at any stage of the suit
be returned to be presented to the court in which
the suit should have been instituted.
Explanation: For the removal of doubts, it is hereby
declared that a court of appeal or revision may
direct, after setting aside the decree passed in a
suit, the return of the plaint, under this sub-rule.
(2) Procedure on returning —On returning a plaint,
the Judge shall endorse thereon the date of its
presentation and return, the name of the party
presenting it, and a brief statement of the reasons
for returning it.
12. Rule 10-A relates to the power of the Court to fix a date of
appearance of parties in the Court where the plaint is to be filed
after its return and it speaks of the procedure to be adopted for
directing the parties to appear before the Court where the
plaintiff proposes to present the plaint after its return. This rule
is intended to take care of possible objection upon the power of
the Court to direct appearance of the parties before the Court in
which plaintiff proposes to present the plaint after having taken
a decision to return the plaint on the ground that if the Court
cannot try the suit, it cannot also direct parties to appear on a
fixed date in another Court. It also has the object of avoiding
delay and repetition in issuing summons to the defendants and
ensuring presence of the parties before the new Court after the
suit is filed afresh upon the return of the plaint by an earlier
Court. This provision, therefore, has to be read only as boosting
the power of Court under Rule 10 to return the plaint.
13. Rule 10, as can be seen from the language
employed therein, confers power upon the Court to return the
plaint at any stage of the suit for its being presented before the
Court in which the suit has to be instituted, once the Court
comes to the conclusion that the suit should have been filed,
not in that Court but in some other Court, and obviously it
implies disability of the Court to try the suit on jurisdictional
issues. This power can also be exercised by the Court of appeal
or revision, and the appellate or revisional Court can return the
plaint after setting aside a decree passed in a suit. This has
been made clear by explanation to the sub-rule 1 of Rule 10.
14. Upon reading Rule 10 and Rule 10-A, it appears that
scheme of these provisions is to leave the Civil Court with only
one option of returning the plaint and not of dismissing the suit
if it is of the opinion that it cannot try the suit. The power
under Rule 10 is not intended to affect the merits of the suit or
otherwise there would have been no further power conferred for
fixing the date of appearance of parties in the Court where the
plaint is proposed to be presented.
15. In the case of RSDV Finance Company (supra), the
Hon'ble Apex Court has laid down that when a suing Court has
no jurisdiction to try the suit, the only course to be adopted in
such a situation is to return the plaint for it's presentation to the
proper Court and not to dismiss the suit. Relevant observations
of the Hon'ble Apex court appearing in para 7 are extracted as
follows:-
“...The Division Bench was totally wrong in
passing an order of dismissal of suit itself
when it had arrived to the conclusion that
the Bombay Court had no jurisdiction to try
the suit. The only course to be adopted in
such circumstances was to return the plaint
for presentation to the proper court and
not to dismiss the suit....”
16. These observations make the position clear and
settle the law governing power of Civil Court under the
provision of Rule 10 of Order 7 of CPC. This provision leaves a
civil Court with no option but to return the plaint and confers no
power on the civil Court to dismiss the suit. In these
circumstances, I find that the learned Counsel for the appellant
is right when he submits that District Judge should not have
dismissed the suit and, should have at the most returned the
plaint to the appellant to be presented before proper Court.
Learned District Judge has, therefore, committed a serious error
of law in dismissing the suit. The question no.1 is answered
accordingly.
17. Second substantial question of law involved in this
appeal relates to lack of territorial and pecuniary jurisdiction on
the part of Court of Civil Judge, Junior Division, Nagpur to try the
suit.
18. According to the learned counsel for the appellant,
witness no.1 of the respondent has admitted in his cross
examination that office of Executive Engineer, MSEB was
situated at Nagpur and this office controlled its other offices at
Kalmeshwar and Gondkhairi thereby indicating that main office
of the respondent was situated at Nagpur and therefore,
Nagpur Civil Court did have the territorial jurisdiction to
entertain and try the suit. He has further submitted that even
the arrears as shown in the electricity bill themselves were
challenged and suit was basically for declaration and
permanent injunction and therefore, the Court of Civil Judge,
Junior Division also had the pecuniary jurisdiction to try the suit.
He further submits that even otherwise under Section 21 of the
CPC, the objections as to the place of suing and/or pecuniary
limits of the jurisdiction of the court cannot be allowed by any
appellate or revisional Court, unless the objections are taken in
the Court of first instance at the earliest possibility and in any
case on or before settlement of issues and unless there has
been a consequent failure of justice. He submits that in the
instant case, even though these objections were taken by the
respondent in the Written Statement, there has been no failure
of justice and, therefore, the objections should not have been
allowed by the learned District Judge. For these submissions,
the learned counsel relies upon the decisions rendered in the
cases of RSDV Finances Co. (supra), Kiran Singh and others Vs.
Chaman Paswan, AIR 1954 SC 340, Koopilan Uneen's daughter
Pathumma and others Vs. Koopilan, AIR 1981 SC 1683, Subhash
Mahadevasa Habib Vs Nemasa Ambasa Dharmadas, AIR 2007
SC 1828 and Basant Kumar Jain Vs. Chief Executive Officer,
MIDC and others, 2005(1) Bom. C. R. 246.
19. Shri Moharir, learned counsel for the respondent
submits that it was an admitted position that stone crushing
unit of the appellant was situated at Village Khapri which fell
within the local limits of Court at Saoner and therefore, it was
Saoner Court which had the jurisdiction. He further submits that
since the electricity bill raised upon the appellant for specific
amount was challenged, the suit was susceptible to valuation
which was of `70,000/- and which took the suit out of pecuniary
jurisdiction of the Civil Judge, Junior Division, Nagpur at the
relevant time. He further submits that there has also been a
failure of justice at the hands of Civil Judge, Junior Division,
Nagpur because the suit was tried by him even though he had
no territorial or pecuniary jurisdiction. In short, he submits that
the learned District Judge was right in allowing the appeal and
dismissing the suit.
20. Sub-sections 1 and 2 of Section 21 of the CPC deal
with powers of appellate or revisional Court to consider the
objections as to the place of suing and pecuniary limits of
jurisdiction of Civil Court. They lay down the conditions for
exercise of power thereunder to allow such objections by the
appellate or revisional Court. These conditions are:-
(I) such objections must be taken in the Court of first
instance at the earliest possible opportunity,
(2) they must be taken in all cases where issues are
settled, at or before settlement of issues.
(3) there has been a consequent failure of justice.
21. In the case of RSDV finance company (supra)
Hon'ble Apex Court has held that the objection as to the place
of suing can be allowed by the appellate or revisional Court only
when above referred three conditions are fulfilled.
22. In the case of Kopilan(supra) also Hon'ble Apex
Court has held that unless all the aforesaid three conditions are
fulfilled appellate/revisional Court cannot allow the objection of
place of suing. Same law has been reiterated by Hon'ble Apex
Court in Subhash Mahadevasa ( supra).
23. Learned Single Judge of this Court in the case of
Basant Kumar Jain(supra) following the above referred law
consistently laid down by Hon'ble Apex Court has held that if it
is found that because of under valuation of the suit an inferior
court has decided the suit without it having pecuniary
jurisdiction to try the suit, even then defendants or respondents
cannot succeed unless they have suffered any prejudice or that
there is any consequent failure of justice on merits.
24. In the case of Kiran Singh (supra), the Hon'ble
Supreme Court while dealing with an objection as to lack of
pecuniary jurisdiction of a Civil Court to try the suit, considered
the principles underlying Section 11 of the Suits Valuation Acts,
1887 and Section 21 and Section 99 of CPC. Hon'ble Apex Court
held that the principle that underlies Section 11 of Suits
Valuation Act, 1987, is that a decree passed by a Court which
would have had no jurisdiction to hear a suit or appeal but for
over-valuation or under-valuation, is not to be treated as, what
it would be but for the section, null and void, and that an
objection to jurisdiction based on over-valuation or undervaluation,
should be dealt with under that section and not
otherwise. The Hon'ble Apex Court further held that the policy
underlying Section 21 and Section 99 of CPC and Section 11 of
the Suits Valuation Act, is the same, namely that when a case
had been tried by a Court on the merits 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. The Hon'ble Apex Court further
held that under Section 11 of the Suits Valuation Act, the
decrees are liable to be interfered with in an appellate Court on
the ground of over-valuation or under-valuation, not in all cases
and as a matter of course, but only if final disposal of the suit
on merits has been prejudicely affected. The Hon'ble Apex
Court also explained what amounts to prejudice on merits
contemplated under Section 11. It was clarified that prejudice
on merits must be directly attributable to over-valuation or
under-valuation and that mere error in a finding of fact recorded
after consideration of the evidence cannot possibly be said to
have been caused by over-valuation or under-valuation. It was
also clarified that mere errors in the conclusions on the points
for determination cannot be held to be “prejudice” within the
meaning of Section 11.
25. It would be thus clear from the principles of the law stated
in the above referred cases that legislature treats the
objections as to territorial or pecuniary jurisdiction as technical
and therefore does not clothe appellate or revisional Court with
power to allow such objections unless, there is a failure of
justice.
26. In the instant case, the first two conditions of
Section 21(1) and (2) of CPC have been certainly fulfilled.
Objections as regards lack of territorial and pecuniary
jurisdiction were taken by the respondent at the earliest
possible opportunity, that was when the written statement was
filed by it. However, the third condition of failure of justice has
not been shown by the respondent to be fulfilled in this case.
The respondent has not demonstrated as to how the final
disposal of the suit has been prejudicially affected on merits
due to lack of jurisdiction of the trial Court. It is also not the
case of respondent that by trial and disposal of suit on merits
by Nagpur Civil Court, any of its substantive or procedural
rights have been prejudicially affected. There can be failure of
justice if some substantive or procedural rights otherwise
available to a party were taken away due to the fact that suit
was tried by a Court not having jurisdiction in the matter. But,
such is not the case here. Therefore, I am of the view that the
learned District Judge has committed a serious illegality in
allowing the objections regarding want of territorial and
pecuniary jurisdiction of the Court of the Civil Judge, Nagpur at
appellate stage.
27. Even otherwise, as submitted by the learned
counsel for the appellant, it can be seen from the pleadings in
the plaint and admission given by the respondent's witness
DW1 that the main office of the respondent was situated at
Nagpur. Nagpur Civil Court, therefore, had the jurisdiction to
entertain and try the suit. The learned District Judge while
holding lack of jurisdiction of Nagpur Civil Court has referred to
Sections 15 and 16 of the CPC, which lay down that every suit
has to be instituted in the Court of lowest grade competent to
try it (section 15) and that suit for, amongst others,
determination of any right or interest in the immovable
property shall be instituted, subject to pecuniary or other
reliefs, in the Court within the local limits of whose
jurisdiction the property is situate (section 16(d)). There is no
doubt about these mandates. Every suit must be instituted in
the Court of the lowest grade competent to try it and when the
suit seeks determination of any right or interest in the
immovable property, it must be filed in a court within the local
limits of whose jurisdiction the property is situated.
28. In the instant case the stone crushing unit of the
appellant being situated at village Khapari, was within the local
limits of jurisdiction of Saoner Court at the relevant time. The
electricity bill under challenge was issued in respect of the
electricity consumed excessively by the appellant for running
the said stone crushing unit. The appellant had challenged the
said electricity bill on the ground that it was arbitrary. The
appellant was not seeking determination of any right or interest
in the immovable property directly. What he had sought
basically was declaring the bill to be arbitrary and illegal and
restraining the respondent from acting upon such a bill by
disconnecting the supply of electricity to the stone crushing
unit. Any threat of discontinuation of electricity supply to the
unit would have had a bearing upon the right of the appellant to
run the stone crushing unit in accordance with law. But such
impact was indirect and ancillary to the main relief of
declaration of the bill issued by the respondent as illegal. The
bill was issued by the respondent having main office situated at
Nagpur. Therefore, for determining the local limits of
jurisdiction of Civil Court, provision of Section 20 clause (a) also
applied. But, it seems the learned District Judge turned
oblivious of the said provision.
29. Under Section 20(a) of the CPC, subject to provisions
previous to it, every suit must be instituted in the Court within
the local limits of whose jurisdiction the defendant at the time
of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain. In
this case, defendant being a corporation there will be no
question of it “actually and voluntarily” residing or its
personally working for gain. However, the condition “carries on
business” with regard to the nature of the suit will be material.
The respondent is a public sector undertaking which carries on
business of, amongst others, distribution and supply of electric
energy and there is no dispute about this fact. Therefore,
respondent can be sued at a place where its main office is
situated. Admittedly, the main office of the respondent is
situated at Nagpur and, therefore, Court of Civil Judge, Junior
Divison, Nagpur, the Court of the lowest grade competent to
try the suit as per Section 15 of the CPC, had the jurisdiction
to try the suit. In this regard, a useful reference could be made
to the law laid down by Hon'ble Apex Court in the case of Union
of India Vs. Sri Ladulal Jain, AIR 1963 SC1681, wherein the
question was whether union of India carried on the business of
running railways and if so whether Union Government could be
sued in a Court within whose territorial jurisdiction the head
quarters of the railway run by the Union was situated. The
answer given was in the affirmative. Hon'ble Apex Court held in
para 16 as under:-
“In view of what we have said above, we hold
that the Union of India carries on the business of
running railways and can be sued in the Court of
the Subordinate Judge of Gauhati within whose
territorial jurisdiction the head-quarters of one
of the railways run by the Union is situated. We
accordingly dismiss the appeal with costs.”
30. It is clear from the above referred decision that a
Government can carry on business and when it does it can be
sued in a Court within whose territorial jurisdiction the head
quarter or main office of the company which runs the business
for and on behalf of the government is situated. Thus, it is seen
that even otherwise, under Section 20(a) of the Civil Procedure
Code, the Court of Civil Judge, Nagpur did have the territorial
jurisdiction to try the suit.
31. In the case of Shantabai Vs. Mariambi, 1990 Mh. L.
J. 771, the learned Single Judge of this Court had occasion to
deal with similar objection about lack of territorial jurisdiction of
the Court of Civil Judge at Nagpur. The judgment debtor therein
had objected to a decree contending that the Court of Civil
Judge at Nagpur who entertained and disposed of the suit had
no territorial jurisdiction, as the property was not situated at
Nagpur, no part of cause of action had accrued at Nagpur and
the defendant was also not the resident of Nagpur. The
Executing Court held that the Court entertaining the suit and
passing the decree had no territorial jurisdiction and, therefore,
the decree was without jurisdiction. While dealing with this
objection in the revision filed before the High Court, the learned
single Judge, relying upon Sections 21 and 22 of the Bombay
Civil Courts Act, 1869, held in paragraph 5 thus:-
“The scheme of the Act thus shows that the
Civil Judges are appointed in the District and
all of them are subordinate to the District
Judge who is a head of that Civil district.
Bombay Civil Courts Act does not contemplate
an appointment of a Civil Judge for a particular
taluka. If the provisions of these two sections
are examined, it will be clear that judges are
appointed for the District and not a particular
part thereof. What work should be assigned
to a Civil Judge is more or less an
administrative function of the District Judge. In
short, the jurisdiction is not necessarily
affected by their posting at a particular place.”
32. Having examined the issue of lack of jurisdiction
from all angles, the only conclusion that can be drawn is, it
cannot be said that Court of Civil Judge, Nagpur did not have
any territorial jurisdiction to entertain this suit, he being
appointed for the District and work that was assigned to him
being more or less a matter of administration.
33. As regards the objection as to lack of pecuniary
jurisdiction, it must be said that I have already observed that
such objection ought not to have been allowed by the learned
District Judge as the respondent did not demonstrate any failure
or miscarriage of justice. Besides, the electricity bill itself was
under challenge on the ground of arbitrariness and therefore, it
was not clear as to which amount should have been taken for
making a prima facie assessment for the purpose of valuation
of the suit. The reliefs that were sought were also for
declaration and mandatory injunction. In such circumstances, it
could not have been said that the Court of Civil Judge, Nagpur
was devoid of any pecuniary jurisdiction to try the suit.
34. In view of above, I am of the opinion that learned
District Judge has committed a serious error of law in holding
that Court of Civil Judge, Nagpur lacked territorial and pecuniary
jurisdiction to entertain and try the suit and has committed
further illegality in dismissal of the suit. Second point is
answered accordingly.
35. Learned District Judge has dismissed the suit on the
ground of want of jurisdiction of trial Court to try the suit. He
has not dealt with merits of the matter in depth. Therefore, it
would be necessary to decide the appeal afresh in accordance
with law by examining the legality and correctness of the
findings on facts recorded on merits by the trial court. Appeal,
therefore, deserves to be partly allowed.
36. Appeal is partly allowed with proportionate costs and the
matter is remanded to the Court of District Judge, Nagpur, for
deciding the case afresh in accordance with law by examining
the legality and correctness of the findings recorded by the trial
court as regards the failure of the respondent to prove the
contents of the electric bill vide Exh. 28 and consequent
entitlement of the appellant to seek declaratory and injunctory
reliefs as against the respondent.
The first appellate Court is requested to decide the
matter as far as possible within a period of six months from the
appearance of the parties before it.
Parties are directed to appear before the first
appellate Court on 7.4.2014.
S. B. SHUKRE, J.
Print Page
with powers of appellate or revisional Court to consider the
objections as to the place of suing and pecuniary limits of
jurisdiction of Civil Court. They lay down the conditions for
exercise of power thereunder to allow such objections by the
appellate or revisional Court. These conditions are:-
(I) such objections must be taken in the Court of first
instance at the earliest possible opportunity,
(2) they must be taken in all cases where issues are
settled, at or before settlement of issues.
(3) there has been a consequent failure of justice.
21. In the case of RSDV finance company (supra)
Hon'ble Apex Court has held that the objection as to the place
of suing can be allowed by the appellate or revisional Court only
when above referred three conditions are fulfilled.
NAGPUR BENCH: NAGPUR.
SECOND APPEAL NO. 130 OF 2011.
Sureshkumar S/o. Rochiram Jagyasi, Vs Maharashtra State Electricity Distribution Company Ltd.,
CORAM:-S. B. SHUKRE, J.
PRONOUNCED ON :26TH FEBRUARY, 2014.
Citation;2015(2) ALLMR748
This appeal is preferred against the judgment and
decree passed by the District Judge-I Nagpur in Regular Civil
Appeal No. 162/1997 on 30.1.2009 thereby allowing the appeal
filed against the judgment and decree passed in Regular Civil
Suit No. 477/1994 by the Joint Civil Judge, Junior Division,
Nagpur on 12.12.1996.
2. The facts leading to filing of the present appeal are
stated in brief as under:-
The appellant is the original plaintiff in a suit instituted
by him against the respondent herein. The suit filed by the
appellant was for declaration and permanent injunction. It was
the case of the appellant that the appellant was customer of
the respondent and the respondent supplied electricity to the
appellant at his stone crushing unit situated at Village Khapri,
Taluka Kalmeshwar, District Nagpur.
In the said suit, the appellant disputed the bill issued for
month of January, 1994, for `.67,059.30 paise. The said bill was
issued by the respondent herein after a flying squad of the
respondent having visited the appellant's unit in his absence
had found that appellant was consuming more electricity than
sanctioned load of electricity. The appellant submitted that he
did not violate any rule of electricity board . As the respondent
threatened the appellant with discontinuation of the supply of
electricity for non payment of amount of said bill and the
demand being illegal and arbitrary the appellant filed the said
suit, which came to be numbered as Regular Civil Suit No.
477/1994.
3. The respondent resisted the suit by filing its written
statement. It was contended by the respondent that during
the surprise visit of the flying squad at the unit of the appellant,
it was disclosed that the appellant was using load of electricity
more than what was actually sanctioned and, therefore, the
claim of bill made by the respondent was not arbitrary and
illegal. The respondent also contended that the Court of Civil
Judge, Junior Division at Nagpur did not have necessary
territorial and pecuniary jurisdiction to entertain the suit, apart
from the fact that the suit was under valued.
4. On such rival pleadings, the trial Court framed the
issues and after considering the evidence adduced by the
parties and arguments of both the sides, learned Civil Judge
Junior Division, Nagpur allowed the suit by his judgment and
decree passed on 12.12.1996. Learned civil Judge, declared
that the respondent had no right to demand the arrears of the
electricity bill of `.67,049.30 paise on the basis of the report of
flying squad and permanently restrained the respondent from
disconnecting the electricity supply of the plaintiff’s unit on
the basis of vague report of flying squad.
5. Being aggrieved by the judgment and decree, the
respondent preferred an appeal before the District Court. It was
numbered as Regular Civil Appeal No. 162/1997. The learned
District Judge after considering the evidence and arguments of
both sides came to the conclusion that the suit was not
maintainable before the Court of Civil Judge, Junior Division,
Nagpur for want of territorial jurisdiction and incorrect valuation
of claim for the purpose of payment of Court fees, thereby
allowing the appeal. He quashed and set aside the judgment
and decree passed by the trial Court and consequently
dismissed the suit of the appellant.
6. Not satisfied, the appellant is before this Court in
the present Second Appeal.
7. This appeal has been admitted by this Court on
substantial questions of law on 15.10.2013. The substantial
questions of law which have now come up for consideration of
this Court are as follows:-
(1) When the first appellate Court came to the
conclusion that the trial Court lacked
jurisdiction, could it in law allow the appeal
and dismiss the suit in stead of returning the
plaint to be presented before the appropriate
Court in view of the provisions of Order VII
Rules 10 and 11 of the Civil Procedure Code?
(2) Whether the first appellate Court fell in error in
concluding that the trial Court lacked the
territorial and pecuniary jurisdiction to
entertain the suit filed by the appellant?
8. I have heard Shri Shyam Dewani, learned counsel
for the appellant and Shri R. E. Moharir, learned counsel for the
respondent. With their assistance, I have carefully gone
through the impugned judgment and decree, the judgment and
decree passed by the trial Court and the paper book of this
appeal.
9. The judgment and decree of the learned District
Judge impugned herein shows that learned District Judge,
referring to Sections 15 and 16 of the Civil Procedure Code,
1908( hereinafter referred to as “ the CPC” for short) found that
since the stone crushing unit of the plaintiff was within the
limits of Kalmeshwar taluka in the jurisdiction at Saoner Civil
Court and the suit was under valued, the suit was not
maintainable before the Court of Civil Judge, Junior Division at
Nagpur. After having found lack of territorial and pecuniary
jurisdiction on the part of the Civil Judge, Junior Division Nagpur,
learned District Judge went on to quash and set aside the
judgment and decree passed by the trial Court and thereby
dismissing the suit itself. It is here that the learned counsel for
the appellant has taken a strong exception to the action of the
District Judge in dismissing the suit itself.
10. Shri Dewani, learned counsel, submits that when a civil
Court comes to the conclusion that it has no territorial or
pecuniary jurisdiction the appropriate course for it would be to
return the plaint in view of the provisions of Order 7 Rules 10
and 11 of the CPC. In support, he places reliance upon the law
laid down in the case of R. S. D. V. Finance Co. Pvt. Ltd Vs.
Shree Vallabh Glass Works Ltd , AIR 1993 SC 2094. Shri
Moharir, learned counsel for the respondent, however, does not
agree. He submits that since the power under Rule 10 Order 7
of the CPC is discretionary, any refusal to exercise that power
by the Civil Court cannot be challenged unless, it is shown to be
exercised arbitrarily resulting in failure of justice. He submits
that under Order 7 Rule 11 of the CPC, the Civil Court is clothed
with power to reject the plaint when from the statement made
in the plaint, the suit appears to be barred by any law (clause
(d)) or the plaint does not disclose any cause of action(clause
(a)). He further submits that in this case the suit as filed by
the appellant did not disclose any such cause of action as could
have been taken cognizance of by the Civil Court situated at
Nagpur and whatever cause of action was there, it had arisen
within the local limits of the Court at Saoner and therefore,
learned District Judge was right in dismissing the suit.
11. So far as the provision of Rule 11 Order 7 of the CPC
is concerned, it is very clear that it does not confer any power
upon the Court to dismiss the suit itself. The only power
available to the Court under this rule is the rejection of the
plaint and that is something which is to be done by the Civil
Court not on merits of the case but upon consideration of the
statements made and the reliefs claimed in the plaint and
nature of the plaint. This rule does not contemplate dismissal of
the suit on merits and this can be seen to be clarified by further
provision made under Rule 13 of Order 7. It states that
rejection of the plaint on any of the grounds mentioned earlier,
that is, those under Rule 11, shall not by itself prevent the
plaintiff from presenting a fresh plaint in respect of the same
cause of action. Therefore, if the learned district Judge found
that the cause of action disclosed in the plaint was not of such
a nature as could have been taken cognizance of by Nagpur
Court, the learned District Judge at the most, though it is a
doubtful proposition, could have rejected the plaint by resorting
to Rule 11 of Order 7 of the CPC. That apart, certainly he could
have taken recourse to provision of Rule 10 Order 7 and
returned the plaint for its being presented to proper Court, if he
was of the opinion that Civil Court at Nagpur had no territorial
and pecuniary jurisdiction to try the suit. Learned Counsel for
respondent, however, submits that power of Civil Court under
Rule 10 Order 7 being discretionary, can be refused to be
exercised in appropriate cases. So, let us see what this rule
says.
10. Return of plaint:- (1) Subject to the provisions
of rule 10A, the plaint shall at any stage of the suit
be returned to be presented to the court in which
the suit should have been instituted.
Explanation: For the removal of doubts, it is hereby
declared that a court of appeal or revision may
direct, after setting aside the decree passed in a
suit, the return of the plaint, under this sub-rule.
(2) Procedure on returning —On returning a plaint,
the Judge shall endorse thereon the date of its
presentation and return, the name of the party
presenting it, and a brief statement of the reasons
for returning it.
12. Rule 10-A relates to the power of the Court to fix a date of
appearance of parties in the Court where the plaint is to be filed
after its return and it speaks of the procedure to be adopted for
directing the parties to appear before the Court where the
plaintiff proposes to present the plaint after its return. This rule
is intended to take care of possible objection upon the power of
the Court to direct appearance of the parties before the Court in
which plaintiff proposes to present the plaint after having taken
a decision to return the plaint on the ground that if the Court
cannot try the suit, it cannot also direct parties to appear on a
fixed date in another Court. It also has the object of avoiding
delay and repetition in issuing summons to the defendants and
ensuring presence of the parties before the new Court after the
suit is filed afresh upon the return of the plaint by an earlier
Court. This provision, therefore, has to be read only as boosting
the power of Court under Rule 10 to return the plaint.
13. Rule 10, as can be seen from the language
employed therein, confers power upon the Court to return the
plaint at any stage of the suit for its being presented before the
Court in which the suit has to be instituted, once the Court
comes to the conclusion that the suit should have been filed,
not in that Court but in some other Court, and obviously it
implies disability of the Court to try the suit on jurisdictional
issues. This power can also be exercised by the Court of appeal
or revision, and the appellate or revisional Court can return the
plaint after setting aside a decree passed in a suit. This has
been made clear by explanation to the sub-rule 1 of Rule 10.
14. Upon reading Rule 10 and Rule 10-A, it appears that
scheme of these provisions is to leave the Civil Court with only
one option of returning the plaint and not of dismissing the suit
if it is of the opinion that it cannot try the suit. The power
under Rule 10 is not intended to affect the merits of the suit or
otherwise there would have been no further power conferred for
fixing the date of appearance of parties in the Court where the
plaint is proposed to be presented.
15. In the case of RSDV Finance Company (supra), the
Hon'ble Apex Court has laid down that when a suing Court has
no jurisdiction to try the suit, the only course to be adopted in
such a situation is to return the plaint for it's presentation to the
proper Court and not to dismiss the suit. Relevant observations
of the Hon'ble Apex court appearing in para 7 are extracted as
follows:-
“...The Division Bench was totally wrong in
passing an order of dismissal of suit itself
when it had arrived to the conclusion that
the Bombay Court had no jurisdiction to try
the suit. The only course to be adopted in
such circumstances was to return the plaint
for presentation to the proper court and
not to dismiss the suit....”
16. These observations make the position clear and
settle the law governing power of Civil Court under the
provision of Rule 10 of Order 7 of CPC. This provision leaves a
civil Court with no option but to return the plaint and confers no
power on the civil Court to dismiss the suit. In these
circumstances, I find that the learned Counsel for the appellant
is right when he submits that District Judge should not have
dismissed the suit and, should have at the most returned the
plaint to the appellant to be presented before proper Court.
Learned District Judge has, therefore, committed a serious error
of law in dismissing the suit. The question no.1 is answered
accordingly.
17. Second substantial question of law involved in this
appeal relates to lack of territorial and pecuniary jurisdiction on
the part of Court of Civil Judge, Junior Division, Nagpur to try the
suit.
18. According to the learned counsel for the appellant,
witness no.1 of the respondent has admitted in his cross
examination that office of Executive Engineer, MSEB was
situated at Nagpur and this office controlled its other offices at
Kalmeshwar and Gondkhairi thereby indicating that main office
of the respondent was situated at Nagpur and therefore,
Nagpur Civil Court did have the territorial jurisdiction to
entertain and try the suit. He has further submitted that even
the arrears as shown in the electricity bill themselves were
challenged and suit was basically for declaration and
permanent injunction and therefore, the Court of Civil Judge,
Junior Division also had the pecuniary jurisdiction to try the suit.
He further submits that even otherwise under Section 21 of the
CPC, the objections as to the place of suing and/or pecuniary
limits of the jurisdiction of the court cannot be allowed by any
appellate or revisional Court, unless the objections are taken in
the Court of first instance at the earliest possibility and in any
case on or before settlement of issues and unless there has
been a consequent failure of justice. He submits that in the
instant case, even though these objections were taken by the
respondent in the Written Statement, there has been no failure
of justice and, therefore, the objections should not have been
allowed by the learned District Judge. For these submissions,
the learned counsel relies upon the decisions rendered in the
cases of RSDV Finances Co. (supra), Kiran Singh and others Vs.
Chaman Paswan, AIR 1954 SC 340, Koopilan Uneen's daughter
Pathumma and others Vs. Koopilan, AIR 1981 SC 1683, Subhash
Mahadevasa Habib Vs Nemasa Ambasa Dharmadas, AIR 2007
SC 1828 and Basant Kumar Jain Vs. Chief Executive Officer,
MIDC and others, 2005(1) Bom. C. R. 246.
19. Shri Moharir, learned counsel for the respondent
submits that it was an admitted position that stone crushing
unit of the appellant was situated at Village Khapri which fell
within the local limits of Court at Saoner and therefore, it was
Saoner Court which had the jurisdiction. He further submits that
since the electricity bill raised upon the appellant for specific
amount was challenged, the suit was susceptible to valuation
which was of `70,000/- and which took the suit out of pecuniary
jurisdiction of the Civil Judge, Junior Division, Nagpur at the
relevant time. He further submits that there has also been a
failure of justice at the hands of Civil Judge, Junior Division,
Nagpur because the suit was tried by him even though he had
no territorial or pecuniary jurisdiction. In short, he submits that
the learned District Judge was right in allowing the appeal and
dismissing the suit.
20. Sub-sections 1 and 2 of Section 21 of the CPC deal
with powers of appellate or revisional Court to consider the
objections as to the place of suing and pecuniary limits of
jurisdiction of Civil Court. They lay down the conditions for
exercise of power thereunder to allow such objections by the
appellate or revisional Court. These conditions are:-
(I) such objections must be taken in the Court of first
instance at the earliest possible opportunity,
(2) they must be taken in all cases where issues are
settled, at or before settlement of issues.
(3) there has been a consequent failure of justice.
21. In the case of RSDV finance company (supra)
Hon'ble Apex Court has held that the objection as to the place
of suing can be allowed by the appellate or revisional Court only
when above referred three conditions are fulfilled.
22. In the case of Kopilan(supra) also Hon'ble Apex
Court has held that unless all the aforesaid three conditions are
fulfilled appellate/revisional Court cannot allow the objection of
place of suing. Same law has been reiterated by Hon'ble Apex
Court in Subhash Mahadevasa ( supra).
23. Learned Single Judge of this Court in the case of
Basant Kumar Jain(supra) following the above referred law
consistently laid down by Hon'ble Apex Court has held that if it
is found that because of under valuation of the suit an inferior
court has decided the suit without it having pecuniary
jurisdiction to try the suit, even then defendants or respondents
cannot succeed unless they have suffered any prejudice or that
there is any consequent failure of justice on merits.
24. In the case of Kiran Singh (supra), the Hon'ble
Supreme Court while dealing with an objection as to lack of
pecuniary jurisdiction of a Civil Court to try the suit, considered
the principles underlying Section 11 of the Suits Valuation Acts,
1887 and Section 21 and Section 99 of CPC. Hon'ble Apex Court
held that the principle that underlies Section 11 of Suits
Valuation Act, 1987, is that a decree passed by a Court which
would have had no jurisdiction to hear a suit or appeal but for
over-valuation or under-valuation, is not to be treated as, what
it would be but for the section, null and void, and that an
objection to jurisdiction based on over-valuation or undervaluation,
should be dealt with under that section and not
otherwise. The Hon'ble Apex Court further held that the policy
underlying Section 21 and Section 99 of CPC and Section 11 of
the Suits Valuation Act, is the same, namely that when a case
had been tried by a Court on the merits 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. The Hon'ble Apex Court further
held that under Section 11 of the Suits Valuation Act, the
decrees are liable to be interfered with in an appellate Court on
the ground of over-valuation or under-valuation, not in all cases
and as a matter of course, but only if final disposal of the suit
on merits has been prejudicely affected. The Hon'ble Apex
Court also explained what amounts to prejudice on merits
contemplated under Section 11. It was clarified that prejudice
on merits must be directly attributable to over-valuation or
under-valuation and that mere error in a finding of fact recorded
after consideration of the evidence cannot possibly be said to
have been caused by over-valuation or under-valuation. It was
also clarified that mere errors in the conclusions on the points
for determination cannot be held to be “prejudice” within the
meaning of Section 11.
25. It would be thus clear from the principles of the law stated
in the above referred cases that legislature treats the
objections as to territorial or pecuniary jurisdiction as technical
and therefore does not clothe appellate or revisional Court with
power to allow such objections unless, there is a failure of
justice.
26. In the instant case, the first two conditions of
Section 21(1) and (2) of CPC have been certainly fulfilled.
Objections as regards lack of territorial and pecuniary
jurisdiction were taken by the respondent at the earliest
possible opportunity, that was when the written statement was
filed by it. However, the third condition of failure of justice has
not been shown by the respondent to be fulfilled in this case.
The respondent has not demonstrated as to how the final
disposal of the suit has been prejudicially affected on merits
due to lack of jurisdiction of the trial Court. It is also not the
case of respondent that by trial and disposal of suit on merits
by Nagpur Civil Court, any of its substantive or procedural
rights have been prejudicially affected. There can be failure of
justice if some substantive or procedural rights otherwise
available to a party were taken away due to the fact that suit
was tried by a Court not having jurisdiction in the matter. But,
such is not the case here. Therefore, I am of the view that the
learned District Judge has committed a serious illegality in
allowing the objections regarding want of territorial and
pecuniary jurisdiction of the Court of the Civil Judge, Nagpur at
appellate stage.
27. Even otherwise, as submitted by the learned
counsel for the appellant, it can be seen from the pleadings in
the plaint and admission given by the respondent's witness
DW1 that the main office of the respondent was situated at
Nagpur. Nagpur Civil Court, therefore, had the jurisdiction to
entertain and try the suit. The learned District Judge while
holding lack of jurisdiction of Nagpur Civil Court has referred to
Sections 15 and 16 of the CPC, which lay down that every suit
has to be instituted in the Court of lowest grade competent to
try it (section 15) and that suit for, amongst others,
determination of any right or interest in the immovable
property shall be instituted, subject to pecuniary or other
reliefs, in the Court within the local limits of whose
jurisdiction the property is situate (section 16(d)). There is no
doubt about these mandates. Every suit must be instituted in
the Court of the lowest grade competent to try it and when the
suit seeks determination of any right or interest in the
immovable property, it must be filed in a court within the local
limits of whose jurisdiction the property is situated.
28. In the instant case the stone crushing unit of the
appellant being situated at village Khapari, was within the local
limits of jurisdiction of Saoner Court at the relevant time. The
electricity bill under challenge was issued in respect of the
electricity consumed excessively by the appellant for running
the said stone crushing unit. The appellant had challenged the
said electricity bill on the ground that it was arbitrary. The
appellant was not seeking determination of any right or interest
in the immovable property directly. What he had sought
basically was declaring the bill to be arbitrary and illegal and
restraining the respondent from acting upon such a bill by
disconnecting the supply of electricity to the stone crushing
unit. Any threat of discontinuation of electricity supply to the
unit would have had a bearing upon the right of the appellant to
run the stone crushing unit in accordance with law. But such
impact was indirect and ancillary to the main relief of
declaration of the bill issued by the respondent as illegal. The
bill was issued by the respondent having main office situated at
Nagpur. Therefore, for determining the local limits of
jurisdiction of Civil Court, provision of Section 20 clause (a) also
applied. But, it seems the learned District Judge turned
oblivious of the said provision.
29. Under Section 20(a) of the CPC, subject to provisions
previous to it, every suit must be instituted in the Court within
the local limits of whose jurisdiction the defendant at the time
of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain. In
this case, defendant being a corporation there will be no
question of it “actually and voluntarily” residing or its
personally working for gain. However, the condition “carries on
business” with regard to the nature of the suit will be material.
The respondent is a public sector undertaking which carries on
business of, amongst others, distribution and supply of electric
energy and there is no dispute about this fact. Therefore,
respondent can be sued at a place where its main office is
situated. Admittedly, the main office of the respondent is
situated at Nagpur and, therefore, Court of Civil Judge, Junior
Divison, Nagpur, the Court of the lowest grade competent to
try the suit as per Section 15 of the CPC, had the jurisdiction
to try the suit. In this regard, a useful reference could be made
to the law laid down by Hon'ble Apex Court in the case of Union
of India Vs. Sri Ladulal Jain, AIR 1963 SC1681, wherein the
question was whether union of India carried on the business of
running railways and if so whether Union Government could be
sued in a Court within whose territorial jurisdiction the head
quarters of the railway run by the Union was situated. The
answer given was in the affirmative. Hon'ble Apex Court held in
para 16 as under:-
“In view of what we have said above, we hold
that the Union of India carries on the business of
running railways and can be sued in the Court of
the Subordinate Judge of Gauhati within whose
territorial jurisdiction the head-quarters of one
of the railways run by the Union is situated. We
accordingly dismiss the appeal with costs.”
30. It is clear from the above referred decision that a
Government can carry on business and when it does it can be
sued in a Court within whose territorial jurisdiction the head
quarter or main office of the company which runs the business
for and on behalf of the government is situated. Thus, it is seen
that even otherwise, under Section 20(a) of the Civil Procedure
Code, the Court of Civil Judge, Nagpur did have the territorial
jurisdiction to try the suit.
31. In the case of Shantabai Vs. Mariambi, 1990 Mh. L.
J. 771, the learned Single Judge of this Court had occasion to
deal with similar objection about lack of territorial jurisdiction of
the Court of Civil Judge at Nagpur. The judgment debtor therein
had objected to a decree contending that the Court of Civil
Judge at Nagpur who entertained and disposed of the suit had
no territorial jurisdiction, as the property was not situated at
Nagpur, no part of cause of action had accrued at Nagpur and
the defendant was also not the resident of Nagpur. The
Executing Court held that the Court entertaining the suit and
passing the decree had no territorial jurisdiction and, therefore,
the decree was without jurisdiction. While dealing with this
objection in the revision filed before the High Court, the learned
single Judge, relying upon Sections 21 and 22 of the Bombay
Civil Courts Act, 1869, held in paragraph 5 thus:-
“The scheme of the Act thus shows that the
Civil Judges are appointed in the District and
all of them are subordinate to the District
Judge who is a head of that Civil district.
Bombay Civil Courts Act does not contemplate
an appointment of a Civil Judge for a particular
taluka. If the provisions of these two sections
are examined, it will be clear that judges are
appointed for the District and not a particular
part thereof. What work should be assigned
to a Civil Judge is more or less an
administrative function of the District Judge. In
short, the jurisdiction is not necessarily
affected by their posting at a particular place.”
32. Having examined the issue of lack of jurisdiction
from all angles, the only conclusion that can be drawn is, it
cannot be said that Court of Civil Judge, Nagpur did not have
any territorial jurisdiction to entertain this suit, he being
appointed for the District and work that was assigned to him
being more or less a matter of administration.
33. As regards the objection as to lack of pecuniary
jurisdiction, it must be said that I have already observed that
such objection ought not to have been allowed by the learned
District Judge as the respondent did not demonstrate any failure
or miscarriage of justice. Besides, the electricity bill itself was
under challenge on the ground of arbitrariness and therefore, it
was not clear as to which amount should have been taken for
making a prima facie assessment for the purpose of valuation
of the suit. The reliefs that were sought were also for
declaration and mandatory injunction. In such circumstances, it
could not have been said that the Court of Civil Judge, Nagpur
was devoid of any pecuniary jurisdiction to try the suit.
34. In view of above, I am of the opinion that learned
District Judge has committed a serious error of law in holding
that Court of Civil Judge, Nagpur lacked territorial and pecuniary
jurisdiction to entertain and try the suit and has committed
further illegality in dismissal of the suit. Second point is
answered accordingly.
35. Learned District Judge has dismissed the suit on the
ground of want of jurisdiction of trial Court to try the suit. He
has not dealt with merits of the matter in depth. Therefore, it
would be necessary to decide the appeal afresh in accordance
with law by examining the legality and correctness of the
findings on facts recorded on merits by the trial court. Appeal,
therefore, deserves to be partly allowed.
36. Appeal is partly allowed with proportionate costs and the
matter is remanded to the Court of District Judge, Nagpur, for
deciding the case afresh in accordance with law by examining
the legality and correctness of the findings recorded by the trial
court as regards the failure of the respondent to prove the
contents of the electric bill vide Exh. 28 and consequent
entitlement of the appellant to seek declaratory and injunctory
reliefs as against the respondent.
The first appellate Court is requested to decide the
matter as far as possible within a period of six months from the
appearance of the parties before it.
Parties are directed to appear before the first
appellate Court on 7.4.2014.
S. B. SHUKRE, J.
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