N.K. Bhatia vs J.P. Singh
1990 Latest Caselaw 450 Del

JUDGMENT

R.L. Gupta, J.

(1) This application has been moved under Order 14, rule 5 read with Section 151 of Code of Civil Procedure ('Code' for short) on behalf of the defendant alleging that in para 28 of the written statement a plea bad been specifically taken that this Court had no jurisdiction because the suit was for specific performance of the Contract with respect to the land situated in the State of Uttar Pradesh. Therefore, it has been prayed that additional issue to that effect may be framed.

 (2) Plaintiff    "THE condition 'unless there has been a consequent failure of justice' mentioned in Section 21 Civil P.C. implies that at the time when the objection is taken in the appellate or revisional Court, the suit has already been tried on the merits. The Section does not preclude the objection as to the place of suing, if the trial Court has not given a verdict on the merits at the time when the objection is taken in the appellate on revisional Court."  

 This authority rather helps the defendant because this Court has not yet given verdict on merits.   

 (3) In the third authority the principle laid down is that a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed, had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. This authority also obviously is not applicable. It may be noted here that previously defendant was being represented by another counsel and now he has engaged a different counsel. On going through the pleadings the new counsel found that there was a plea taken in the written statement about the jurisdiction of this Court because the property which is the subject matter of the alleged agreement between the parties is situated in the State of Uttar Pradesh. The non-pressing of an issue by a party's counsel, otherwise arising from the pleadings, should not be calculated to amount to a waiver of the plea by the party himself because it is the duty of the Court also to frame correct issues arising from the pleadings. We must not forget in the present case that the parties have not yet led evidence on various issues. The objection about lack of territorial jurisdiction, which is otherwise taken in the written statement at the earliest stage, is now being merely repeated by means of this application under Order 14 Rule 5 of the Code which otherwise mandates that before passing any decree, the Court shall either amend or frame additional issues as may be necessary for determining the matters in controversy between the parties. It is not even an application in the midst of the evidence seeking amendment of the written statement whereby the defendant wants to introduce the plea of lack of jurisdiction of this Court by amendment of the written statement. The plea is already there. It is only in those cases where trial has taken place, and the objection regarding lack of territorial jurisdiction is taken for the first time before an appellate or a revisional court, that it may be possible to say that the case had been tried on merits and judgment rendered, so it was not liable to be reversed purely on the technical ground of lack of jurisdiction. This principle will not apply when such an objection is taken before the trial court itself. It was clarified in the case of Kiran Singh and others (supra) in para 7 in the following words.    "WITH reference to objections relating to territorial jurisdiction section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 11 of the Suit Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99, Civil Procedure Code . 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."'  

 (4) As already stated, the objection regarding lack of territorial jurisdiction is being taken at the very threshold of the trial before any evidence has been led by either of the parties. The following additional issue is, therefore, framed as follows :    ADDITIONAL Issue- 4A. Whether this Court has jurisdiction to try this suit ? Opp   

 (5) Since the objection regarding jurisdiction goes to the very root of the case and requires no evidence it is treated as a preliminary issue. For arguments on this issue, the matter be listed on 31.10.1990 at the end of short matters. This application, accordingly, stands disposed off.