Surjit Kumar Chatterjee vs Nisith Kumar Banerjee
1991 Latest Caselaw 701 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 22nd March. 1991 passed by Shri S.S. Handa, Sub Judge 1st Class, Delhi whereby the application of the petitioner-defendant under Order 7 Rules 10 & Ii read with Section 35A and 151 of the Code of Civil Procedure for rejection of the plaint has been dismissed.

(2) The grounds set out in that application by the petitioner defendant mainly are that the property of the suit is situated in Calcutta and is within the territorial jurisdiction of the Courts in Calcutta and the Delhi Courts have no jurisdiction to entertain and try the suit and secondly the respondent-plaintiff had filed a similar suit No-444/74 in Calcutta which ultimately was dismissed in default on 1.10.1982 and the same has not been restored as yet and as such there is a complete bar for the institution of the present suit for the same cause of action under Order 9 Rule 9 of the Code of Civil Procedure.

(3) It may be noted here that after the summons were served on the petitioner-defendant, he did not file the written statement where he could have raised all the objections. But, instead, he preferred to file the application out of which these proceedings in revision petition have arisen.

(4) In reply, the respondent-plaintiff has denied the knowledge of the filing of Suit No-444/74 and he has further stated that this Court has jurisdiction under proviso to Section 16 of the Code of Civil Procedure. The present petitioner is actually and voluntarily residing within the jurisdiction of this Court and personally working for gain.

(5) Learned counsel for the petitioner vehemently asserts that this litigation is false and vexatious and it is the duty of the Court to throw out this litigation at the very threshold and the plaint should be rejected. Since this is a pure question of law, he submits, the matter can be decided in the revision petition.

(6) The contentions of the learned counsel for the petitioner is wholly unacceptable as the contentions raised by him are not purely questions of law as both the contentions can be decided after determination of facts: whether or not a similar suit was filed by the respondent-plaintiff in Calcutta and which was dismissed in default and that whether the petitioner-defendant is actually and voluntarily residing within the jurisdiction of the Delhi Courts and personally working for gain. The questions raised by the petitioner can be decided only after the determination of the facts. It is a settled law that in revision petitions the facts are not decided and what the revisional courts have to see is whether there is any jurisdictional error committed by the trial court in passing the impugned order. Even otherwise, I am of the opinion that the objections raised by the petitioner-defendant should have been raised in the written statement and not through the application and issues should have been framed by the trial court. Such issues could have been claimed as preliminary issues and should have been decided first.

(7) In the present case, if the written statement is filed by the petitioner-defendant and the objections, which are now sought to be raised in this revision petition, are raised and denied by the other party, the trial court will naturally frame the issues in accordance with law and if any issue is framed as the preliminary issue by the trial court, the same will be decided by him accordingly.

(8) There is no jurisdictional error in the impugned order. Revision petition is dismissed in liming.