[Cites 15, Cited by 0]
Bombay High Court
Hdfc Bank Ltd., Nagpur Thr. Branch ... vs Mrs. Archana W/O Sachin Dongre on 6 April, 2026
2026:BHC-NAG:5312
29. CRA 04.2026.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.04 OF 2026
APPLICANTS : 1. HDFC Bank Limited,
(Ori. Defendants)
Branch Manager, Bharuka Bhavan,
Opp. Yashwant Stadium, Dhantoli,
Nagpur-12.
2. HDFC Bank Limited,
Cluster Head, Fidvi Towers, 4th Floor,
Sadar, Mount Road, Nagpur-440 001.
3. HDFC Bank Limited,
Senior Vice President, Human
Resources, West 1 Think Techno
Campus, Buklding-Alpha, Next to
Kanjur, Marg Railway Station (East)
Kanjur Marg (E), Mumbai - 400 042
4. HDFC Bank Limited,
Aditya Puri (M.D.), 1 Think Techno
Campus, Buklding-Alpha, Next to
Kanjur, Marg Railway Station (East)
Kanjur Marg (E), Mumbai-400 042
..VERSUS..
NON-APPLICANT : Mrs. Archana w/o Sachin Dongre,
Ori. Plaintiff
Aged about 45 years, Occu. Nil, R/o
Jaiprakash Nagar, Khamla, Nagpur-
440025.
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Mr.V. V. Bhangde, Advocate for applicant.
Mr. Amit Khare, Advocate for respondent.
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2
CORAM : ROHIT W. JOSHI, J.
DATE OF RESERVE : 16.03.2026
DATE OF DECISION : 06.04.2026
JUDGMENT:
1) The present Civil Revision Application is filed in
order to challenge order dated 26.08.2025 passed by the
learned 26th Joint Civil Judge, Senior Division, Nagpur, on
application at Exhibit 49 in Special Civil Suit No.347 of 2017.
2) The applicants are defendants in the said suit. The
respondent/plaintiff filed the aforesaid suit for declaration,
restoration of service and claim for damages in view of
termination of her services by the applicants on 28.02.2017.
The plaintiff was working with the defendants as
Relationship Manager at Nagpur. She filed the aforesaid suit
at Nagpur contending that cause of action for filing the suit
arose at Nagpur. Averments regarding territorial jurisdiction
are made in paragraph 22 of the plaint, which reads as
under:-
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"The plaintiff states that her interview was
conducted at Nagpur. Her appointment letter also
points out the place at Nagpur. The entire work
was done at Nagpur. The plaintiff further states
that the defendants are residing at Nagpur.
Similarly, the plaintiff all throughout worked at
Nagpur. The entire communications were done by
the plaintiff at Nagpur and her performance were
reviewed at Nagpur. Likewise, the termination
letter was also issued at Nagpur. Thus, in such
facts and circumstances the entire cause of action
was at Nagpur and hence this Hon'ble Court has
proper jurisdiction to try and entertain the instant
case for its proper adjudication and justice."
3) The plaintiff was appointed in service vide
appointment order dated 06.12.2013. The appointment order
provides that any dispute in relation to the employment of
the plaintiff will be subject to exclusive jurisdiction of Courts
at Mumbai.
4) The defendants had filed an application vide
Exhibit-9 under Order VII Rule 10 of the Code of Civil
Procedure, 1908, (for short, the CPC) contending that the
learned Trial Court did not have the territorial jurisdiction to
29. CRA 04.2026.odt
entertain the same in view of the clause conferring exclusive
jurisdiction upon Courts at Mumbai.
5) The said application was rejected by the learned
Trial Court vide order dated 05.04.2018. The learned Trial
Court has observed that the entire cause of action had arisen
at Nagpur and the defendants also had a branch office at
Nagpur and therefore Courts at Mumbai did not possess
jurisdiction to entertain the suit. The learned Trial Court
referred to the settled legal position that although parties
may restrict jurisdiction to one of two Courts, when both the
Courts have the jurisdiction, they cannot by contract confer
jurisdiction on a Court which otherwise is not vested with it.
6) Being aggrieved by the said order, the defendants
challenged the same before this Court in Civil Revision
Application No.81 of 2018. The Civil Revision Application
came to be rejected vide judgment dated 16.08.2018 on the
same ground, i.e., the Courts at Mumbai did not have
jurisdiction and therefore by way of agreement, jurisdiction
could not be conferred.
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7) The present applicant filed application for review,
being MCA No.967 of 2018 which came to be rejected by this
Court vide order dated 09.07.2008.
8) After the review was rejected, a similar dispute
pertaining to territorial jurisdiction with respect to an
identical clause in the appointment order issued by the
defendant/HDFC came up for consideration before the
Hon'ble Supreme Court in the case of Rakesh Kumar Verma
Vs. HDFC Bank1.
9) In the said case, the appellant before Supreme
Court was appointed in service vide order dated 24.07.2002.
He joined his service at Patna. The appointment order
contained a clause conferring exclusive jurisdiction upon
Courts at Mumbai. The relevant clause in the present case
and in the matter before the Hon'ble Supreme Court is as
under:-
"The terms and conditions set out in this
letter of appointment constitute service
conditions applicable to your employment in
the bank and with regard to any dispute
thereof, the Bombay Courts will have
1 2025 SCC Online SC 752
29. CRA 04.2026.odt
exclusive jurisdiction."
10) The services of the employee in the case before the
Hon'ble Supreme Court were terminated by HDFC, challenge
to which was raised by filing suit before Court at Patna.
HDFC filed an application raising objection to territorial
jurisdiction of Patna Court. The learned Trial Court rejected
the application, however, the Civil Revision Application
preferred by HDFC was allowed, holding that the Court at
Patna did not have jurisdiction in the light of aforesaid clause
conferring jurisdiction upon Courts at Mumbai.
11) In the light of aforesaid decision, the defendants
filed another application vide Order VII Rule 10 of the CPC
before the learned Trial Court vide Exhibit 49. The said
application came to be rejected vide order dated 26.08.2025,
which is impugned in the present Civil Revision Application.
The learned Trial Court has rejected the application on the
ground that earlier application filed by the defendants for the
same purpose was rejected and Civil Revision Application
preferred by the defendants was also dismissed by this Court.
In sum and substance, the learned Trial Court has rejected
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the application on the ground that the earlier order passed,
which is confirmed by this Court, operates as res judicata.
12) Mr. Bhangde, the learned Advocate for the
applicants/defendants contends that the learned Trial Court
has failed to consider two exceptions to the rule of res
judicata viz. (i) erroneous decision on a pure question of law
relating to jurisdiction of Court does not operate as res
judicata and (ii) in case of change in interpretation of law
rule of res judicata is not applicable.
13) In support of his contention, Mr. Bhangde, has
placed reliance on judgments of the Hon'ble Supreme Court
in the case of Mathura Prasad Bajoo Jaiswal and ors. Vs.
Dossibai N. B. Jeejeebhoy2, Canara Bank Vs. N. G. Subbaraya
Setty and anr.,3 and judgment of this Court in the case of
Prabhakar Ambadas Kothale Vs. Shantabai Prabhakar
Kothale4.
14) At the outset one must remember that all orders
without jurisdiction are not nullity in the eyes of law. An
order which suffers from inherent lack of jurisdiction is a
2 1970 (1) SCC 613
3 (2018) 16 SCC 228
4 2008(2) Mh.L.J. 794
29. CRA 04.2026.odt
nullity in the eyes of law and can be ignored. However orders
suffering from procedural aspects of jurisdiction such as
territorial jurisdiction, pecuniary jurisdiction, limitation, res
judicata etc., are not nullity in the eyes of law. Errors
pertaining to such procedural aspects of jurisdiction are
errors committed within the jurisdiction of the Court. Such
orders do not suffer from inherent lack of jurisdiction. They
are binding between the parties even if they are erroneous.
Such orders are required to be challenged to have them set
aside. Unless such orders are set aside by a competent Court,
they continue to operate and are completely binding on the
parties.
15) Legal position in this regard is explained by the
Hon'ble Supreme Court in the case of Ittyavira Mathai vs
Varkey Varkey5, as under:-
"8. Even assuming that the suit was barred by
time, it is difficult to appreciate the contention of
learned counsel that the decree can be treated as
a nullity and ignored in subsequent litigation. If
the suit was barred by time and yet, the court
decreed it, the court would be committing an
5 AIR 1964 SC 907
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illegality and therefore the aggrieved party would
be entitled to have the decree set aside by
preferring an appeal against it. But it is well
settled that court having jurisdiction over the
subject matter of the suit and over the parties
thereto, though bound to decide right may decide
wrong; and that even though it decided wrong it
would not be doing something which it had no
jurisdiction to do. It had the jurisdiction over the
subject-matter and it had the jurisdiction over the
party and, therefore, merely because it made an
error in deciding a vital issue in the suit, it cannot
be said that it has acted beyond its jurisdiction. As
has often been said, courts have jurisdiction to
decide right or to decide wrong and even though
they decide wrong, the decrees rendered by them
cannot be treated as nullities."
16) It will also be profitable to refer to judgment of the
Hon'ble Supreme Court in the case of Urban Improvement
Trust, Jodhpur Vs. Gokul Narain (Dead) by LR's and ors. 6,
wherein the Hon'ble Supreme Court has distinguished
between a decree suffering from lack of inherent jurisdiction
which is treated as a nullity and a decree being passed by a
Court lacking territorial or pecuniary jurisdiction which is
6 (1996) 4 SCC 178
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required to be challenged and set aside. Relevant
observations of paragraph 15 are reproduced herein-below.
"15....On appeal, this Court had held that a decree
passed by a court without jurisdiction over the
subject-matter or on any other ground which goes
to the root of its exercise of jurisdiction or inherent
jurisdiction, is a nullity. A decree passed by such a
court is a nullity and is non est. Its invalidity can
be set up whenever it is sought to be enforced or is
acted upon as a foundation for a right even at the
stage of execution or in collateral proceedings. The
defect of jurisdiction strikes at the authority of the
court to pass a decree which cannot be cured by
consent or waiver of the party. If the court has
jurisdiction but there is any defect in its exercise of
jurisdiction it does not go to the root of its
authority. Such a defect like territorial jurisdiction
could be waived by the party which could be
corrected only by way of an appeal or revision."
17) It will also be profitable to refer to judgment of the
Hon'ble Supreme Court in the case of Pandurang Dhondi
Choughule and ors. Vs. Maruti Hari Jadhav and ors.7. In this
judgment the Hon'ble Supreme Court has held that res
judicata also deals with jurisdictional aspect of a Court.
7 AIR 1966 SC 153
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Relevant observations in paragraph 10 of the judgment are as
under:-
"10. It is well-settled that a plea of limitation or a
plea of res judicata is a plea of law which
concerns the jurisdiction of the Court which tries
the proceedings. A finding on these pleas in
favour of the party raising them would oust the
jurisdiction of the Court, and so, an erroneous
decision on these pleas can be said to be
concerned with questions of jurisdiction which
fall within the purview of S.115 of the Code.
18) It must be stated that Section 11 of the CPC
mandates that no Court shall try any suit or issue which is
already decided by a Court of competent jurisdiction in a
previously instituted suit between the same parties. The
provision is couched in negative terms which implies that it is
mandatory in nature. The provision also uses the word, 'shall'
which also conveys its mandatory nature.
19) The contentions raised by the learned advocate for
the applicants/defendants are required to be examined in the
light of this legal position.
29. CRA 04.2026.odt
20) There cannot be any dispute that the Courts at
Mumbai alone will have the territorial jurisdiction to
entertain the present suit, in view of judgment of the Hon'ble
Supreme Court in the case of Rakesh Kumar Verma (supra)
relied upon by the learned advocate for the
applicants/defendants. Rakesh Verma is decided after
rejection of initial application filed by the defendants for
return of plaint and rejection of the revision application as
also application for review preferred by the
applicants/defendants assailing the said order.
21) The effect of the subsequent judgment passed in a
different case dealing with identical controversy is required
to be examined in the backdrop of the fact that earlier
application for return of plaint and civil revision arising out
of the said order are rejected and the said order has assumed
finality between the parties.
22) Before dealing with the contentions raised by the
learned advocate it will be appropriate to deal with Order 47
Rule 1 of the CPC. Order 47 deals with power of review.
Explanation to Order 47 Rule 1 categorically provides that
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the fact that the decision on a question of law on which the
judgment of the Court is based, is reversed or modified by a
subsequent decision of a superior Court in any other case will
not be a ground for review of the judgment. Thus, the
legislature was alive to the situation that the foundation on
the basis of which an order is passed may be subsequently
eroded by a judgment of a superior Court in another legal
proceeding. The legislature, however, has expressly laid down
that change in interpretation of law by a superior Court will
not be a good ground for review. The provision thus gives
primacy to rule of res judicata.
23) There cannot be any dispute with respect to legal
position that an order suffering from inherent lack of
jurisdiction is required to be treated differently than an order
passed by a Court lacking in jurisdiction on account of
procedural aspects of jurisdiction, such as territorial
jurisdiction. Whereas, an order passed by a Court without
subject matter of jurisdiction i.e., without inherent
jurisdiction is a nullity in the eyes of law, an order suffering
from procedural aspects of jurisdiction is not a nullity and at
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best may be branded as illegal. An order passed by a Court
without territorial or pecuniary jurisdiction is required to be
challenged to have it set aside. Unless such order is set aside
it is completely binding on parties.
24) Since the earlier order passed by the learned Trial
Court with respect to territorial jurisdiction is confirmed by
this Court and the same is not challenged further, in the
considered opinion of this Court the said order will operate
as res judicata between the parties and as such it was not
open for the applicants/defendants to file fresh application
seeking return of plaint in view of subsequent decision of the
Hon'ble Supreme Court.
25) It will now be appropriate to deal with the
authorities cited by Mr. Bhangde with respect to exceptions to
the principle of res judicata.
26) In the case of Mathura Prasad Bajoo the Hon'ble
Supreme Court has culled out exceptions to the rule of res
judicata. The following paragraphs are extracted for ready
reference:-
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"7. Where the law is altered since the
earlier decision, the earlier decision will not
operate as res judicata between the same
parties : Tarini Charan Bhattacharjee's case (supra).
It is obvious that the matter in issue in a
subsequent proceeding is not the same as in
the previous proceeding, because the law
interpreted is different.
9. A question of jurisdiction of the Court,
or of procedure, or a pure question of law
unrelated to the right of the parties to a
previous suit, is not res judicata in the
subsequent suit. Rankin, C. J., observed in
Tarini Charan Bhattacharjee's case (supra) :
10. A question relating to the jurisdiction
of a Court cannot be deemed to have been
finally determined by an erroneous decision of
the Court. If by an erroneous interpretation of
the statute the Court holds that it has no
jurisdiction, the question would not, in our
judgment, operate as res judicata. Similarly by
an erroneous decision if the Court assumes
jurisdiction which it does not possess under the
statute, the question cannot operate as res
judicata between the same parties, whether
the cause of action in the subsequent litigation
is the same or otherwise.
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11. It is true that in determining the
application of the rule of res judicata the Court
is not concerned with the correctness or
otherwise of the earlier judgment. The matter
in issue, if it is one purely of fact, decided in
the earlier proceeding by a competent Court
must in a subsequent litigation between the
same parties be regarded as finally decided
and cannot be reopened. A mixed question of
law and fact determined in the earlier
proceeding between the same parties may not,
for the same reason, be questioned in a a
subsequent proceeding between the same
parties. But, where the decision is on a
question of law, i. e., the interpretation of a
statute, it will be res judicata in a subsequent
proceeding between the same parties where
the cause of action is the same, for the
expression "the matter in issue" in Section 11,
Code of Civil Procedure means the right
litigated between the parties, i.e., the facts on
which the right is claimed or denied and the
law applicable to the determination of that
issue. Where, however, the question is one
purely of law and it relates to the jurisdiction
of the Court or a decision of the Court
sanctioning something which is illegal, by
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resort to the rule of res judicata a party
affected by the decision will not be precluded
from challenging the validity of that order
under the rule of res judicata, for a rule of
procedure cannot supersede the law of the
land."
27) In the said case, an application for fixation of fair
rent was filed by the landlord. This was a second application
filed for the same purpose i.e, fixation of fair rent. Earlier
application was rejected by the learned Trial Court on the
ground that provisions of Bombay Rent Act, under which the
said application was filed were not applicable to open lands.
This order passed by the learned Trial Court was confirmed
by the High Court. However, subsequently the High Court
took a different view holding that provisions of Rent Act were
applicable to open lands as well. It will be pertinent to state
that the Hon'ble Supreme Court had upheld the subsequent
view taken by the High Court that provisions of Rent Act
were applicable to open lands. In view of the subsequent
decision the landlord filed fresh application for fixation of fair
rent. The said application was rejected by the learned Trial
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Court on the ground of res judicata. The order was confirmed
by the High Court. The matter was carried by the landlord
before the Hon'ble Supreme Court. The Hon'ble Supreme
Court held that rule of res judicata will not be applicable and
subsequent application filed by the landlord was
maintainable in view of change in interpretation of the
statutory provisions of Rent Act. The judgment deals with
subject matter jurisdiction i.e., inherent jurisdiction of a
Court. The observations of the Hon'ble Supreme Court
holding that erroneous decision on the point of jurisdiction
does not operate as res judicata are made in the context of
subject matter jurisdiction and not procedural aspects of
jurisdiction. As regards change in interpretation of law,
perusal of paragraph 11 will demonstrate that the law is laid
down with respect to a separate proceeding instituted on a
different cause of action. Perusal of paragraph 11 will
indicate that the Hon'ble Supreme Court has emphasized that
a question of law decided in a previous proceeding operates
as res judicata in a subsequent proceeding between the same
parties on the same cause of action.
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28) The ratio of the said judgment with respect to
jurisdiction will not be applicable in the present case since
the objection is not subject matter jurisdiction or inherent
jurisdiction, but to territorial jurisdiction which is a
procedural aspect of jurisdiction. The ratio pertaining to
interpretation of pure question of law not operating as res
judicata will also not be applicable since the said judgment
holds that adjudication of pure question of law does not
operate as res judicata in a separate proceeding on a different
cause of action. Here rule of res judicata is sought to be
bypassed on the ground of interpretation of clause in an
agreement dealing with territorial jurisdiction based on a
subsequent Supreme Court decision, although the proceeding
and cause of action are the same.
29) In the case of N. G. Subbaraya Setty and anr., the
respondent had obtained loan from the appellant/bank and
had defaulted in repayment of the same. The loan was
initially set off against assignment of a trade mark relating to
incense sticks. The bank however cancelled the agreement of
assignment. This cancellation was challenged by the
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borrower by instituting a suit. The suit was decreed in favour
of the borrower and against the bank holding that the
cancellation of assignment agreement by the bank was bad in
law. The Court granted money decree in favour of bank
towards use of the trade mark for a period from 01.10.2003
to 31.03.2004. This decree was not challenged by the bank.
The borrower filed a fresh suit for recovery of money for
subsequent period from 01.04.2004 to 30.04.2007. The suit
was decreed on the principle of res judicata. The matter
reached the Hon'ble Supreme Court. The Hon'ble Supreme
Court held that the claim of the borrower, based on
assignment deed was barred by Section 45 of the Trade
Mark's Act, 1999 since the assignment deed was not
registered and Section 6 and 8 read with Section 46(4) of the
Banking Regulation Act,1949 on the ground that the said
provisions prohibited a bank from doing any business other
than banking business. It is held that the decree in the earlier
civil suit which was based on misinterpretation of law will
not operate as res judicata in a subsequent suit which is
based on different cause of action. The Hon'ble Supreme
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Court has reiterated the legal principles laid down in the case
of Mathura Prasa Bajoo (supra).
30) The ratio of the said judgment will not apply to the
present case since the fresh application is filed in the same
proceeding and on the same cause of action.
31) It will however be relevant to refer to some
important observations by the Hon'ble Supreme Court with
respect to res judicata which read as under:-
"Res judicata is, thus, a doctrine of fundamental
importance in our legal system, though it is stated
to belong to the realm of procedural law, being
statutorily embodied in Section 11 of the Code of
Civil Procedure, 1908. However, it is not a mere
technical doctrine, but it is fundamental in our
legal system that there be an end to all litigation,
this being the public policy of Indian law. The
obverse side of this doctrine is that, when
applicable, if it is not given full effect to, an abuse
of process of the court takes place"
32) In the case of Prabhakar Ambadas Kothale the
husband had filed a proceeding for divorce under Section 13
(1-A) (ii) of the Hindu Marriage Act on the ground that the
29. CRA 04.2026.odt
husband and wife could not stay together after a period of
more than two years from the date of decree for restitution of
conjugal rights. The suit filed by the husband was initially
dismissed on the ground that the husband could not take
advantage of his own wrong in order to seek a decree for
divorce on the ground that parties did not reside together for
a period of two years despite a decree for restitution.
Thereafter, the Hon'ble Supreme Court interpreted the
provision in the case of Dharmendra Kumar Vs. Usha Kumar8.
In view of the said judgment the husband filed a fresh
divorce petition on the same ground that the parties did not
reside together for a period of two years from the date of
decree for restitution of conjugal rights. The learned Trial
Court allowed the application for divorce in view of
subsequent decision by the Hon'ble Supreme Court in the
case of Dharmendra Kumar (supra). The matter reached this
Court in Second Appeal. The question which arose for
consideration before this Court is as to whether dismissal of
the earlier divorce petition by the husband on the same
ground viz. not residing together for a period of two years
8 AIR 1977 SC 2218
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after decree for restitution, would operate as res judicata.
Following the judgment in the case of Mathura Prasad Bajoo
this Court rejected the contention with respect to res judicata
observing as under :-
"It is admitted position that there was no
cohabitation between the parties after 8-2-1977
and till 19-2-1979. The trial Court therefore has
found that a fresh cause of action accrued in
favour of the present appellant. I also find that as
per the law existing after 19-8-1977, a fresh cause
of action accrued in favour of the present
appellant on 19-2-1979 as in spite of restitution of
conjugal rights decree parties had not cohabited. It
is to be noted that though this Court has delivered
judgment on 8-2-1977 in Second Appeal No.
385/1977, the proceeding there started on an
application filed on 7-3-1970 by the present
appellant. It is therefore, clear that after 7-3-1970
till 19-2-1979 there was no cohabitation. It is
further clear that appellant has not been held to be
at fault for this later not staying together. At the
most it can be held that he did not take any
positive steps towards cohabitation and remained
only a mute spectator. But that is not sufficient as
per law prevailing during this period to deprive
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him of his right. Not only this, as already held
above even if this accrual of fresh cause of action
in favour of the present appellant is ignored, it is
more than clear that the earlier judgment between
the parties was passed upon wrong interpretation
or incorrect interpretation and the interpretation
of those provisions on 19-8-1977 by the Hon'ble
Apex Court changed the position and earlier
adjudication between parties therefore could not
have been held as res judicata between them in
subsequent petition. The lower Appellate Court
was therefore not correct in taking a contrary view
of the matter."
33) This Court held that fresh period of separation for
two years gives rise to a fresh cause of action and therefore
earlier incorrect interpretation of statutory provision will not
operate as res judicata. This Court also held that incorrect
interpretation of statutory provision cannot operate as res
judicata in a subsequent proceeding between the parties even
if cause of action is the same.
34) Rule of res judicata is excluded with respect to
adjudication of pure legal question in case of change in
interpretation of law when such pure legal question falls for
29. CRA 04.2026.odt
consideration between the same parties in a separate
proceeding on a different cause of action. When the cause of
action is the same, different interpretation of law, subsequent
to previous decision will not be an exception to operation of
earlier decision as res judicata.
35) In the present case, although the interpretation of
law has changed since passing of earlier orders, the cause of
action is the same and therefore earlier decision, though
erroneous in law, will operate as res judicata between the
parties. Such interpretation will be in tune with the mandate
of Explanation to Order 47 Rule 1 of CPC.
36) In the present case, in view of subsequent judgment
by the Hon'ble Supreme Court the applicants/defendants
filed a fresh application calling upon the learned Trial Court
to revisit its earlier order rejecting application for return of
plaint. In other words, the defendants are seeking review of
the earlier order in the light of subsequent decision of the
Hon'ble Supreme Court, although subsequent application for
return of plaint is not titled as an application for review. If the
defendants were to file an application for review of the
29. CRA 04.2026.odt
earlier order in the light of subsequent decision of the
Hon'ble Supreme Court, the said application could not be
entertained in view of statutory injunction under explanation
to Order 47 Rule 1 of CPC. The question that falls for
consideration is as to whether the defendants can be allowed
to by-pass the said provision by entertaining fresh application
on the ground that erroneous decision on question of
territorial jurisdiction will not operate as res judicata. The
answer has to be in the negative. It must be reiterated that
territorial jurisdiction like res judicata is only a procedural
aspect of jurisdiction of a Court. It will also be appropriate to
refer to Section 21(1) of the CPC which provides that a
decree cannot be set aside by Appellate or Revisional Court
on the ground of territorial jurisdiction, unless such objection
is raised at the earliest and there has been a consequent
failure of justice on account of lack of territorial jurisdiction.
As against this, res judicata is consistently held to be an
important principle of a public policy which is essential to
preserve the rule of law. The principle of res judicata is a
principle of equity, justice and good conscience.
29. CRA 04.2026.odt
37) Mr. Bhangde, contends that when parties, by an
agreement, restrict jurisdiction to one of several Courts which
have jurisdiction to adjudicate the suit, the jurisdiction of all
Courts except the agreed Court lack the jurisdiction to
entertain the suit. His contention is that jurisdiction of all
other Courts except the Court agreed upon between the
parties stands excluded in such a case. Mr. Bhangde,
therefore, contends that since the parties have, by contract,
restricted jurisdiction to the competent Courts at Mumbai
and the Honb'le Supreme Court has interpreted the said
clause in the case of Rakesh Kumar Verma to hold that
Courts at Mumbai alone will have the jurisdiction, all other
Courts will inherently lack jurisdiction to deal with the suit.
He, therefore, contends that the earlier order passed by the
learned Trial Court, as also the order passed by this Court
dismissing Civil Revision Application and application for
review preferred by the applicant/bank, will not operate as
res judicata.
38) I am afraid the said contention cannot be accepted
in its entirety. When two or more Courts have subject matter
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jurisdiction, i.e., inherent jurisdiction, to try a particular suit
and the parties, by contract, restrict the jurisdiction to a
particular Court, the territorial jurisdiction of other Courts is
excluded.
39) The agreement restricting territorial jurisdiction to
a particular Court will not have the effect of depriving other
Courts, which are otherwise competent to deal with the
subject matter of suit of their inherent jurisdiction to deal
with the suit.
40) In the present case, order passed by the learned
Trial Court on the aspect of territorial jurisdiction is
confirmed by this Court in Civil Revision Application and
application for review of order passed by this Court was also
rejected. These orders have not been assailed any further and
have attained finality between the parties. For the reasons
recorded above, in the considered opinion of this Court, the
said order will operate as res judicata between the parties.
The case of defendants does not fall within any of the
exceptions to the rule of res judicata. Rather, Mathura Prasad
Bajoo Jaiswal itself clarifies that a question pertaining to
29. CRA 04.2026.odt
interpretation of law will operate as res judicata in a
subsequent proceeding between the same parties when cause
of action is the same. The said observation in the case of
Mathura Prasad Bajoo Jaiswal will apply to the present case
with a greater force, since the subsequent application is based
on same cause of action and is filed in the same civil suit. As
regards objection pertaining to jurisdiction, the objection is
not with respect to inherent lack of jurisdiction and,
therefore, applicability of res judicata will not be excluded on
that ground as well. The subsequent application filed by the
defendants under Order 7 Rule 10 of CPC seeking return of
plaint on the ground of lack of territorial jurisdiction, is
rightly rejected in the light of earlier orders.
41) Civil Revision is therefore dismissed, with no order
as to costs.
(ROHIT W. JOSHI, J.)
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