Devendra Upadhyay vs Bhudev Prasad Sharma
2017 Latest Caselaw 1459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
RESERVED
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1305 of 2017
 

 
Petitioner :- Devendra Upadhyay
 
Respondent :- Bhudev Prasad Sharma
 
Counsel for Petitioner :- Madhav Jain
 
Counsel for Respondent :- Rishi Chadha
 

 
Hon'ble Manoj Misra, J.

This is a defendant's petition against an order dated 15.11.2016 passed by the Judge Small Causes, Agra in SCC Suit No. 82 of 2002 by which he has refused to return the plaint of SCC Suit No. 82 of 2002 and has held that it has pecuniary jurisdiction to hear the matter and has thereby fixed a date for arguments. The petitioner has also challenged the order dated 17.01.2017 passed by the District Judge, Agra in S.C.C. Revision No. Nil of 2016 by which the revision preferred by the petitioner against the order dated 15.11.2016 has been dismissed in limine.

FACTS

The facts giving rise to the present petition are as follows:-

The plaintiff-respondent instituted SCC Suit No. 82 of 2002 in the Court of Judge Small Causes, Agra. The suit was valued above Rs.25,000/-, at Rs. 28,965/-, for the purpose of jurisdiction. The defendant filed written statement. Apart from contesting the proceeding on merits, raised an objection as regards pecuniary jurisdiction of the Judge Small Causes by claiming that the pecuniary jurisdiction of Judge Small Causes was up to Rs. 25,000/- only. It appears that the objection in respect of pecuniary jurisdiction was not considered by the trial court. The suit proceeded, parties led evidence and, thereafter, the suit was decreed on merits by judgment and decree dated 27.02.2010.

Aggrieved by the judgment and decree passed by the trial court, the defendant-petitioner filed SCC Revision No. 13 of 2010.

The revisional court by judgment and order dated 29.04.2013 set aside the order dated 27.02.2010 on the ground that the trial court did not have pecuniary jurisdiction for deciding the suit inasmuch as its pecuniary jurisdiction was limited up to Rs. 25,000/-. The revisional court, after setting aside the order passed by the trial court, remanded the matter back to the trial court to proceed in accordance with law.

After the matter was remanded back to the trial court, it appears, the plaintiff moved an application to transmit the record of the suit to a court of competent jurisdiction. Before any order could be passed on the above application, an application, purportedly, under section 24 CPC, was filed before the District Judge concerned for transfer of proceeding of SCC Suit No. 82 of 2002 to a court of competent jurisdiction.

The aforesaid transfer application was registered as T.A. Case No. 259 of 2013 and came to be placed before the Lok Adalat, presided over by District Judge, Agra. Upon which, the District Judge, Agra, on 22.12.2013, ordered transfer of SCC Suit No. 82 of 2002 from the court of Judge Small Causes, Agra to the Court of Additional District Judge, Court No.2, Agra.

Before passing the transfer order dated 22.12.2013, the petitioner was not heard therefore the petitioner filed Writ Petition No. 47444 of 2014 assailing the transfer order. Whereupon, vide order dated 05.09.2014, the order of transfer passed by the District Judge was set aside and the District Judge was directed to pass a fresh order, in accordance with law.

Pursuant to the order of remand, the District Judge, Agra, after hearing the parties, by order dated 03.11.2014, rejected the transfer application by observing that appropriate course for the Court of Judge Small Causes, Agra would be to return the plaint of SCC Suit No.82 of 2002, under Order VII Rule 10 C.P.C.

The validity of the order dated 03.11.2014 has been subjected to challenge by the plaintiff-respondent by filing Writ Petition No. 4899 of 2015 in which notices are stated to have been issued and the matter is still pending with no stay order.

In the meantime, before any order of return of plaint could be passed, by providence, section 15 of the Provincial Small Cause Courts Act, as applicable in the State of U.P., came to be amended by U.P. Civil Laws (Amendment) Act, 2015, with effect from 7th December, 2015. By the said amendment, the pecuniary jurisdiction of the Court of Small Causes was enhanced to Rs. 1,000,00/- (one lac).

Upon enhancement of the pecuniary limit of its jurisdiction, the Court of Judge Small Causes, Agra by impugned order dated 15.11.2016 refused to return the plaint of SCC Suit No.82 of 2002 and fixed a date for arguments.

Aggrieved by the aforesaid order, revision was preferred by the defendant-petitioner which has been summarily dismissed by the District Judge, Agra vide impugned order dated 17.01.2017.

I have heard Sri Madhav Jain for the petitioner; Sri Rishi Chaddha for the plaintiff-respondent; and have perused the record.

SUBMISSIONS

The learned counsel for the petitioner has submitted that once the decree of the Court of Judge Small Causes was set aside by the revisional court on ground of lack of jurisdiction, the trial court had no option but to return the plaint to a court of competent jurisdiction and therefore the amending Act enhancing the pecuniary jurisdiction of the Court of Judge Small Causes would not apply to the pending proceeding and, under the circumstances, the Court had no option but to return the plaint for presentation in a Court having jurisdiction. It has been urged by him that when a plaint is returned under Order 7 Rule 10 C.P.C. for presentation in a competent court having jurisdiction, the trial has to commence de novo and, therefore valuable right of the petitioner has been affected by the impugned order. It has been submitted that even assuming that the Court of Judge Small Causes would now have jurisdiction to proceed in the suit, the Court must hold a de novo trial and could not have directly fixed a date for arguments. In support of his contentions, learned counsel for the petitioner placed reliance on a decision of the Madras High Court in V. Ramaswamy Iyer and another v. Veerarayan Raja alias Kuttunni and another : AIR 1941 (Madras) 711 which holds that before a suit can be deemed to be instituted, the plaint must be presented to a court having jurisdiction. It was held in that case that presentation of a plaint in a court which has no jurisdiction to try the suit cannot be said to be institution of the suit even though the plaint has been accepted as being in order and registered. Reliance has also been placed on an apex court decision in Kiran Singh and others v. Chaman Paswan and others : AIR 1954 SC 340 wherein it was observed that it is fundamental principle, well established, that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceeding. The apex court held that defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured, even by consent of parties.

Another decision of the apex court on which reliance has been placed is in the case of Neha Arun Jugadar and another v. Kumari Palak Diwan Ji : (2011) 15 SCC 222 in which the apex court had observed that an order of transfer of a case can be passed where both the courts, namely, the transferor as well as transferee court, have jurisdiction to hear the case. In a case a where a party alleges that the court where the case is pending has no jurisdiction, he should apply to that court for dismissing it on this ground. There is no question of transfer of such a case.

Another decision of the apex court in R. Kapilnath v. Krishna : (2003) 1 SCC 444 has been relied upon to contend that new law bringing out a change in forum does not affect pending actions unless the provision is made in it for changeover of proceedings or there is some clear indication that pending actions are affected.

In addition to above, a decision of the apex court in ONGC v. M/s. Modern Construction and Co. : (2014) 1 SCC 648 has been relied upon to contend that when a plaint is returned for presentation to a competent court having jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even though it stood concluded before the court having no competence to try the same.

Per Contra, Sri Rishi Chaddha, who has appeared on behalf of the plaintiff-respondent, has submitted that on account of the amendment carried out by Act No. 104 of 1976, with effect from 01.02.1977, vital changes have been brought in the Code of Civil Procedure including in sections 21 and 24 of the Code of Civil Procedure. Further, section 21-A has been inserted. Under the amended section 21 of the Code, no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction is to be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases, where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. By insertion of section 21-A, a bar has been put on institution of suit challenging a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to place of suing. Further, sub section (5) of section 24 of the Code empowers transfer of a suit or proceeding under Section 24 of the Code from a Court which has no jurisdiction to try it; and sub section (2) of section 24 provides that where any suit or proceeding has been transferred or withdrawn under sub section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

It has been submitted that consequent to the above noticed amended provisions in the Code, the proceedings in a Court which does not have pecuniary jurisdiction is not a nullity but is a mere irregularity and therefore a decree by a Court lacking pecuniary jurisdiction can be set aside only if it is demonstrated that the objection as regards jurisdiction was taken in the court of first instance at the earliest possible opportunity, and, in all cases, where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. In support of his submissions, Sri Chaddha placed reliance on: (1) Pathumma v. Kuntalan Kutty, (1981) 3 SCC 589; and (2) Chandrashekhar v. Rajesh Kumar Sahu, 2010 (81) ALR 188.

Sri Rishi Chaddha further submitted that though the revisional court had set aside the decree passed by the Court of Judge Small Causes but while setting aside the decree it did not record any finding that there had been failure of justice. It has been submitted that there is no specific direction by the revisional court that there shall be a de novo trial. Under the circumstances, since the plaint had not been returned by the trial court and in the meantime, consequent to the amendment in section 15 of the Provincial Small Cause Courts Act, the Court of Judge Small Causes derived pecuniary jurisdiction, the Court of Judge Small Causes rightly refused to return the plaint and fix a date for arguments. It has been submitted by him that in the trial, the defendant as well as the plaintiff both had already led their evidence and, in fact, by leading his evidence, the defendant had already submitted to the jurisdiction of the court, therefore, there was no consequential failure of justice warranting a de novo trial. Accordingly, he prayed, the petition be dismissed.

ANALYSIS AND CONCLUSIONS

I have given thoughtful consideration to the submissions of the learned counsel for the parties.

Section 21 (2) of the Code of Civil Procedure, as inserted by Act No.104 of 1976, provides that objection to the competence of a Court with reference to the pecuniary limits of its jurisdiction has to be taken at the first instance and no such objection is to be entertained by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. Further by insertion of section 21-A in the Code and by amendment in sub-section (2) of section 24 and by insertion of sub-section (5) in section 24 of the Code, the legislative intent is clear that on ground of lack of pecuniary jurisdiction the proceeding before a court would not be a nullity and the proceeding could be transferred from a court which has no jurisdiction to a court which has jurisdiction and upon such transfer, the proceeding may be tried from the point at which it was transferred or withdrawn, subject to special directions in the case of an order of transfer. The judgment of the Madras High Court and of the Apex Court in the case of V. Ramaswamy Iyer's case (supra) and Kiran Singh's case (supra) relied upon by the learned counsel for the petitioner have all been rendered in the context of the old provisions of the Code of Civil Procedure as they stood prior to amendment carried out by Act No. 104 of 1976 therefore are not of much help to the petitioner.

In Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650, the apex court had examined in some detail the effect of the amendments brought about by Act No.104 of 1976. In that case it was observed that the Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. It was held that an inherent lack of jurisdiction may make a decree passed by that court void in law, but a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. It was held that at best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied. In the above decision, the Apex Court also held that the phrase "place of suing" used in Section 21-A C.P.C., as inserted by Act No. 104 of 1976, is not restricted to the territorial aspect of the jurisdiction but shall include pecuniary aspect as well.

It is thus now well settled that no decree can be claimed to be void ab initio merely because the Court that passed the decree did not have pecuniary jurisdiction to deal with the suit though the appellate court or revisional court can set aside the decree on ground of lack of jurisdiction provided the conditions of Section 21(2) of the Code are satisfied.

In view of the aforesaid legal position, as emerging from the amendments carried out by Act No.104 of 1976, the proceeding in a court lacking pecuniary jurisdiction is not a nullity and therefore to annul the proceeding the conditions laid out in Section 21 of the Code are to be satisfied. The party aggrieved will have to demonstrate that on account of the proceeding in a court having no pecuniary jurisdiction there had been a consequent failure of justice.

In the instant case, the Court of Judge Small Causes had proceeded with the suit and had recorded the evidence of both parties and, thereafter, had decided the matter. Although the decree passed by the Court of Judge Small Causes was set aside on ground of lack of jurisdiction but the revisional court while setting aside the decree did not record any satisfaction that there had been a consequent failure of justice or that the defendant had refused to participate in the proceeding on the ground that the court lacked jurisdiction.

The argument of the learned counsel for the petitioner that the trial court had no option but to return the plaint even when it came to have gained pecuniary jurisdiction by subsequent notification enhancing its pecuniary limit does not appeal to the court, particularly, in view of the legal position that the proceeding, under the amended Code, in a court lacking pecuniary jurisdiction is not a nullity and that, under sub-section (5) read with sub-section (1) of section 24 of the Code, they could be transferred to a court of competent jurisdiction and the transferee court, under sub-section (2) of section 24, could proceed from the point at which it was transferred. Further, because there was no specific direction in the order of remand to return the plaint except that the trial court was directed to proceed in accordance with law.

The decision of the apex court in the case of Neha Arun Jugadar (supra) was in respect of proceeding before a Motor Accident Tribunal and it does not consider the amended provisions of the Code of Civil Procedure. The other decision of the apex court in the case of R. Kapilnath (supra) would also not be of much help to the petitioner because in this case the proceeding remained pending in the court of Judge Small Causes by the time the notification came enhancing its pecuniary jurisdiction thereby making the matter cognizable by it. Had the plaint been returned, then, of course, in view of the decision of the apex court rendered in the case of ONGC's case (supra) there would have had to be a de novo trial. But, in the instant case, before file could be returned, by amendment, the pecuniary jurisdiction came to be vested in the Court of Judge Small Causes and therefore the proceeding, which was so far irregular, stood regularised, except the final judgment and decree which had already been set aside by then. Under the circumstances, the Court below was legally justified in refusing to return the plaint and was also justified in fixing a date for arguments.

In view of the discussion made above, the petition lacks merit and is accordingly dismissed. There is no order as to costs.

Order Date :- 31.5.2017

Sunil Kr Tiwari