Karnataka High Court
Mr. Arnaud Descamps vs Onmobile Global Limited on 14 July, 2023
Bench: H.P.Sandesh
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.4019/2022 (CPC)
BETWEEN:
1. MR. ARNAUD DESCAMPS
S/O. GILLES DESCAMPS
AGED ABOUT 49 YEARS
RESIDING AT NO.71
RUE EDOUARD VAILLANT
92300, LEVALLOIS-PERRET
FRANCE. ... APPELLANT
(BY SRI A.S.VISHWAJITH, ADVOCATE)
AND:
1. ONMOBILE GLOBAL LIMITED
A COMPANY HAVING ITS
REGISTERED OFFICE AT
'E CITY TOWER #1'
NOS.94/1C AND 94/2
VEERASANDRA VILLAGE
ATTIBELE HOBLI, ANEKAL TALUK
ELECTRONIC CITY PHASE-1
BANGALORE-560 100
KARNATAKA, INDIA
REPRESENTED BY ITS GENERAL
COUNSEL MS. N.S.INDIRA. ... RESPONDENT
(BY SRI UDAY HOLLA, SENIOR COUNSEL A/W.
SRI NIKHILESH RAO M., ADVOCATE)
2
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 17.02.2022 PASSED ON I.A. NO.1
IN O.S.NO.2751/2020 ON THE FILE OF THE LVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY
(CCH NO.59), ALLOWING I.A.NO.1 FILED UNDER ORDER 39
RULES 1 AND 2 READ WITH SECTION 151 OF CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.07.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant-defendant and
the learned counsel for the respondent-plaintiff.
2. This miscellaneous first appeal is filed challenging
the order dated 17.02.2022 passed on I.A.No.1 in
O.S.No.2751/2020 on the file of the LVIII Additional City Civil
and Sessions Judge, Bengaluru City (CCH No.59), allowing I.A.
No.1 filed under order 39, Rule 1 and 2 read with Section 151 of
C.P.C. restraining the defendant, including his representatives,
his agents from making any statement, remarks and/or
imputations against the plaintiff and its management in any
social media, public forum and before any other entities, until
disposal of the suit.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the defendant is an en-employee of the
plaintiff company and was employed with the plaintiff from
09.01.2007 till 12.04.2013. The defendant during his
employment with the plaintiff failed to perform his duties
promptly, which left the plaintiff company with no option but to
legally terminate the defendant with effect from 12.04.2013. In
the year 2015, the defendant filed a case before the Labour
Court, Paris against the plaintiff claiming damages for restraining
the defendant from exercising his options under Employee Stock
Option Plan ('ESOP' for short). In this regard, the French Labour
Court rightly dismissed the claim of the defendant against the
plaintiff dated 18.10.2018. It is also contended that the
defendant had filed a revision petition before the Court of appeal
challenging the findings and the same was also dismissed vide
order dated 12.09.2019. The defendant also made desperate
attempts to initiate false and frivolous proceedings against the
plaintiff by submitting a Whistleblower complaint before the
Whistleblower Committee of the plaintiff company on the same
grounds and the Committee considering that the said concern is
a subjudice matter being considered and await orders of the
Labour Court, Paris, directed the defendant to act in accordance
with the observations and findings of the said Labour Court.
4. The defendant in pursuit to accomplish his false
allegations against the plaintiff, also filed a complaint before the
Ministry of Corporate Affairs ('MCA' for short) on 06.11.2018 to
initiate statutory proceedings against the plaintiff company,
which was finally closed vide e-mail dated 20th February, 2020,
considering that there were no merits in the allegations made by
the defendant. It is also contended that the defendant has time
and again with malafide intention filed several complaints before
the SEBI and MCA inter alia, making baseless and frivolous
allegations using defamatory and derogatory remarks such as
fraudulent and lying, misleading, making false statements, do
not adhere to the code of conduct, stealing shares, furnishing
false information to SEBI to cover-up fraud, failures in
governance and specifying incorrect number of outstanding
shares against the plaintiff company and its management.
5. The defendant also made similar imputations against
the plaintiff addressed to Karvy Investor Services Limited
('Karvy' for short) and ESOP Direct, being private entitles, with
malafide intention to coerce the plaintiff company to adhere to
his illegal demands. The defendant is also constantly attempting
to mislead the authorities and several other service providers of
the plaintiff, thereby causing irreparable loss of business and
adversely affecting the reputation of the plaintiff before the
society at large. Hence, the plaintiff filed the suit for declaration
and inter alia sought for the relief of temporary injunction and
before filing the suit, the plaintiff also issued legal notice to the
defendant to withdraw all the complaints filed before the SEBI,
MCA and all other statutory authorities and also to withdraw the
defamatory imputations and tender unconditional apology and
since, he did not comply with the same, the plaintiff filed the
suit.
6. The very grounds urged are reiterated in the affidavit
filed in support of the application. The appellant-defendant
herein appeared and filed the written statement contending that
the very suit is mischievous, frivolous and plaintiff has not shown
any prima facie or irreparable injury caused to it and the
consideration of the true facts pleaded by the defendant shows
that the balance of convenience is not in favour of the plaintiff.
The plaint and applications are liable to be dismissed for want of
jurisdiction and also barred by limitation and contend that he
invoked the defence of privilege in respect of the statements
actually made by him. Subsequent communications by him to
the Judicial Authorities, Government Regulators and other
entities ancillary to the process of exercising its vested stock
options were based on true and genuine claims. It is also
contended that the plaintiff approached this Court with unclean
hands and no cause of action and balance of convenience lies in
favour of the plaintiff and prayed the Court to dismiss the
appeal.
7. The Trial Court, having considered the pleadings of
the plaintiff and the defendant, formulated the points whether
the plaintiff has made out a prima-facie case, whether the
balance of convenience lies in favour of the plaintiff and whether
the plaintiff would be put to irreparable loss and injury, if an
order of temporary injunction is not granted and answered the
said points as 'affirmative', in coming to the conclusion that the
material placed before the Court clearly discloses that there is an
defamatory imputations against the plaintiff and the plaintiff has
made out a prima facie case and balance of convenience lies in
favour of the plaintiff. Hence, the present appeal is filed before
this Court by the appellant-defendant.
8. The main contention of the learned counsel for the
appellant-defendant before this Court is that, it is not in dispute
that the defendant was an ex-employee of the plaintiff and he
was terminated in the year 2013. The main contention urged
before this Court is that the plaintiff has not whispered anything
about the jurisdiction to entertain the suit and the plaint. The
counsel also would vehemently contend that, in the plaint,
nothing is mentioned with regard to the defamatory imputations
made against the plaintiff and the Trial Court also passed a
blanket order and not formed any opinion that imputations are
defamatory in nature and in the cause title to the plaint itself, it
is mentioned that the defendant is a resident of France and no
specific averments are made in the plaint with regard to
defamatory imputations and also with regard to jurisdiction,
except mentioning that the Court has got jurisdiction. There is
no whisper with regard to invoking jurisdiction under Section
20(c) of C.P.C. and the defendant is also not within the
jurisdiction of the Court.
9. It is also contended that the list of authorities which
have been furnished before the Trial Court both in respect of
merit as well as the jurisdiction has not been considered. The
plaint also does not disclose defamatory statement and though
the defendant worked till July, 2013, but stated that he worked
only till April, 2013 as against what the plaintiff is claiming. In
Para No.19 of the order, the Trial Court also discussed with
regard to the false allegations made by the defendant before
SEBI and MCA which pertains to the relief as sought. It is also
contended that ESOP was exercised before 30 days of
termination since, he has worked till July, 2013 and not up to
April, 2013 as contended and the documents which have been
produced before the Court are clear that the defendant served
till July, 2013 and their own documents disclose the same i.e.,
he was relieved on 05.07.2013 but, he exercised his option on
April 25th itself and the fact that he worked from 31.10.2008 to
July, 2013 is not in dispute and option is also exercised within
the vesting period.
10. Learned counsel for the appellant-defendant in
support of his argument, relied upon the judgment of the
Calcutta High Court in W. HAY AND OTHERS VS. ASWINI
KUMAR SAMANTA reported in 1957 SCC ONLINE CAL 26 and
brought to notice of this Court Para No.10, wherein the Court
has discussed with regard to the defamatory words and held that
the defamatory words must be set out in the plaint where the
words are per se or prima facie defamatory. The counsel would
contend that, if the defamatory words are not set out in the
plaint, there cannot be any order in the absence of necessary
averments and the plaint is liable to be rejected on the ground
that it does not disclose any cause of action.
11. The counsel also relied upon the judgment of the
Calcutta High Court in MANIK LAL BHOWMIK VS. BHARAT
SANCHAR NIGAM LIMITED reported in 2017 SCC ONLINE
CAL 302 and brought to notice of this Court Para Nos.35 and
36, wherein it is observed that privilege is of two kinds, absolute
and qualified. A statement is absolutely privileged when no
action lies for if even though it is false and defamatory and made
with express malice. On certain occasions, the interest of society
require that a man should speak out his mind fully and frankly
without fear of consequences and the allegations made in his
complaint are qualified privilege and no action lies for it and the
same does not amount to defamatory and the plaintiff must
prove the existence of an express malice which may be inferred
either from the excessive language of the defamatory matter
itself or from any facts that show that the defendant was
actuated by spite or some oblique motive.
12. The counsel also relied upon the judgment in
KEDUTSO KAFPO VS. KENEINGULIE reported in (1994) 1
GAUHATI LAW REPORTS 145 and brought to notice of this
Court Para No.8, wherein the Court has discussed with regard to
jurisdiction as to the place of sueing. It is also observed that,
under Section 19 of the Code of Civil Procedure, such a suit
could be instituted either within the local limits of the jurisdiction
of a Court where the defendant resides or carries on business or
personally works for gain. Such a suit could also be instituted
within the local limits of the jurisdiction of a Court where the
wrong was done.
13. The counsel also relied upon the judgment of the
Apex Court in DEEPAK KUMAR @ DEEPAK SAHA VS.
HINDUSTAN MEDIA VENTRUES LTD. & ORS. reported in
2017 SCC ONLINE DEL 8970 and brought to notice of this
Court Para No.7, wherein the Court has extracted Para No.6 of
the judgment of the Karnataka High Court in the case of
JAHARLAL PAGALIA VS. UNION OF INDIA reported in AIR
1959 CALCUTTA 273, wherein it is observed that, cause of
action has one meaning in relation to the basis of a claim and
another in relation to the jurisdiction of Court. The former is the
restricted and the latter is the wider meaning of cause of action.
The counsel referring this judgment would vehemently contend
that nothing has been stated in the plaint with regard to cause of
action which is having wider meaning. The counsel also brought
to notice of this Court Para No.10, wherein also the Apex Court
has held that, a mere plea of existence of a head office or a
corporate office of a defamatory company will not confer
jurisdiction on a Court if the defendant company has a branch
office at the place where whole or part of cause of action has
arisen and contend that no cause of action has arisen within the
jurisdiction of the Court.
14. The counsel also relied upon the judgment of the
Hyderabad High Court in BENNETT COLEMAN AND CO. LTD.
VS. K. SARAT CHANDRA reported in 2015 SCC ONLINE HYD
822 and brought to notice of this Court Para No.8(c) of the
judgment with regard to essentials of defamation, wherein the
Court has set out the essentials or requisites constituting
defamation as civil wrong.
15. The counsel also relied upon the judgment of High
Court of Judicature at Madras in ORIGINAL APPLICATION
NOS.18 OF 2019 AND CONNECTED APPLICATIONS dated
03.06.2019 and brought to notice of this Court Para No.30,
wherein it is discussed with regard to the issues which would
lead to an irresistible conclusion that grant of pre-trial
injunctions in the matters of defamation, can be resorted to only
in rarest of rare cases, where the Court reaches a conclusion
that there is no iota of truth in the allegations made.
16. The counsel also relied upon the judgment in AXIS
BANK LTD. VS. MPS GREENERY DEVELOPERS LTD. reported
in 2010 SCC ONLINE CAL 1717 and brought to notice of this
Court Para No.3 of the judgment, wherein it is observed that the
word "prima facie" case does not mean a case proved to the hilt,
but is one, which is at least "an arguable one" at the time of
trial. If at that stage, the Court prima facie finds that from the
averments made in the plaint itself, the Court has no territorial
jurisdiction to entertain the suit in accordance with law, it should
not consider the other two factors and reject the application on
the ground of absence of prima facie jurisdiction of the Court to
give the ultimate relief to the plaintiff.
17. The counsel also relied upon the judgment of the
Apex Court in CIVIL APPEAL NO.7653 OF 2004 dated
29.03.2005 and brought to notice of this Court Para No.21,
wherein it is held that the plea of the jurisdiction goes to the
very root of the matter. The Trial Court having held that it had
no territorial jurisdiction to try the suit, the High Court should
have gone deeper into the matter and until a clear finding was
recorded that the Court had territorial jurisdiction to try the suit,
no injunction could have been granted in favour of the plaintiff
by making rather a general remark that the plaintiff has an
arguable case that he did not consciously agree to the exclusion
of the jurisdiction of the Court.
18. Per contra, learned counsel for the respondent-
plaintiff would submit that, though an appeal was filed before
the Foreign Court against the order of the Labour Court, the
same was withdrawn. The counsel also would vehemently
contend that the revision petition was also dismissed. But, in
Para No.10 of the plaint, it is specifically stated with regard to
the defamatory imputations made by the defendant. Hence, the
defendant cannot contend that no such averments are made in
the plaint. The counsel also would vehemently contend that
online mobile information was sent to Bengaluru and the same is
found in Page Nos.176, 202 and 205 and specific averments are
also made in the plaint with regard to the defamatory
imputations and also the e-mail correspondence between the
plaintiff and the defendant through the persons involved in the
affairs.
19. Learned counsel for the respondent-plaintiff, in
support of his argument relied upon the judgment of this Court
in A.K. SUBBAIAH VS. B.N. GARUDACHAR reported in ILR
1987 KAR 100, wherein it is discussed with regard to
statements per se defamatory not excusable in anticipation of
plea of justification or truth. The counsel relying upon this
judgment would contend that, when specific averments are
made in the plaint, particularly in Para No.10 with regard to the
defamatory imputations and also complaints made against the
plaintiff and the suit is also filed for the relief of declaration that
the same is defamatory imputations, the Court has to decide the
same and the Trial Court rightly comes to the conclusion that
there is a prima facie case to grant the relief and the Trial Court
has not committed any error.
20. In reply to the arguments of the learned counsel for
the appellant-defendant, learned counsel for the respondent-
plaintiff would contend that e-mail is sent to Venkateshwarulu
and not to the plaintiff and when the same is received from a
friend, the same cannot give any jurisdiction and he is only a
recipient of the defamatory statement and the averments made
in Para No.10 of the plaint does not constitute any defamatory
imputations.
21. Having heard the respective counsel, the pleadings
of the parties and also the grounds urged in the appeal, the
points that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an
error in allowing the application in I.A.No.1 in
O.S.No.2751/2020 filed by the plaintiff under
Order 39, Rule 1 and 2 read with Section 151
of C.P.C.?
(2) What order?
Point No.(1)
22. Having perused the pleadings of the parties, it is not
in dispute that the defendant was an ex-employee of the plaintiff
and he was terminated from service in 2013. Though the
respondent-plaintiff contend that the defendant was terminated
in April, 2013, the appellant-defendant contend that he served
till July, 2013. However, the documents disclose that the
defendant worked till July, 2013 and it is also not in dispute that
he has taken up the issue of termination before the French Court
and the same was dismissed and thereafter, revision was also
filed and the same was also dismissed. Though it is contended
that the appeal was dismissed, but it was withdrawn, as
contended by the learned counsel for the respondent-plaintiff.
However, the same is not the crux of the issue involved between
the parties before this Court. It is relevant to note that the
defendant also approached SEBI and MCA, wherein he made an
allegation against the plaintiff.
23. The first contention of the learned counsel for the
appellant-defendant is that, in the complaint, nowhere the
defamatory imputations are stated and the said contention
cannot be accepted for the reason that the learned counsel for
the respondent-plaintiff brought to notice of this Court Para
No.10 of the plaint, wherein it is specifically pleaded with regard
to filing of several complaints before SEBI and MCA. But, specific
allegation is made that, with a malafide intention, the defendant
filed several complaints before SEBI and MCA inter alia, making
baseless and frivolous allegations using defamatory and
derogatory remarks such as fraudulent and lying, misleading,
making false statements, do not adhere to the code of conduct,
stealing shares, furnishing false information to SEBI to cover-up
fraud, failures in governance and specifying incorrect number of
outstanding shares against the plaintiff company and its
management. The defendant also made similar imputations
against the plaintiff addressed to Karvy Investor Services Limited
('Karvy' for short) and ESOP Direct, being private entitles, with
malafide intention to coerce the plaintiff company to adhere to
his illegal demands.
24. Having perused the averments made in the plaint, it
is seen that specific allegations are made in the plaint with
regard to making allegations using defamatory and derogatory
remarks in the complaint before SEBI and MCA. Hence, the very
contention of the learned counsel for the appellant-defendant
that a blanket order is passed by the Trial Court and the same is
not defamatory cannot be accepted.
25. The other contention of the learned counsel for the
appellant-defendant before the Court is that, in the complaint,
not whispered anything about the jurisdiction. In order to invoke
the jurisdiction of the Trial Court, the Court has to look into the
averments made in the plaint with regard to invoking the
jurisdiction of the Trial Court. Having read the plaint in its
entirety, except making the allegations with regard to the
appointment, termination and questioning the same before the
Court at France and not exercising the option within the time
frame and defamatory imputations, nothing is stated in the
plaint with regard to invoking the jurisdiction of the Trial Court.
26. It is important to note that, the defendant, while
filing the written statement in Para No.61, raised the issue of
jurisdiction and particularly, in Para No.62, it is contended that
the defamation action can only be initiated either where the
defendant resides (France) or where the defamatory statement
is published. It is contended that without accepting the claims of
the plaintiff, even if it is presumed that the statements made by
the defendant to Karvy and ESOP Direct were defamatory, then
in such cases, the place of publication could either considered to
be France or places where the aforesaid entities i.e., Karvy
(situated in Mumbai, Maharashtra) and ESOP Direct (situated in
Pune, Maharashtra) have their offices. It is also pleaded that the
plaintiff has also relied upon certain other
complaints/communications that have been made by the
defendant to judicial authorities, SEBI and MCA. Hence, it is
contended that the Trial Court is not having jurisdiction to
entertain the suit.
27. No doubt, while considering the issue involved
between the parties it is alleged that option was not exercised
within the time frame, but that is not the issue and the same is
also not the material for grant of an order of temporary
injunction when an order of temporary injunction is sought to
restrain the defendant from making any defamatory and
derogatory imputations. I have already pointed out that, in the
plaint, there is an averment with regard to such derogatory and
defamatory allegations in Para No.10. But, with regard to the
jurisdiction is concerned, except stating in Para No.16 of the
plaint that this Court has jurisdiction to entertain the above suit
and grant the relief, on perusal of the entire plaint, nowhere it is
stated that on what basis the jurisdiction of the Trial Court is
invoked and nothing is whispered as regards how the Court has
got jurisdiction as contended by the learned counsel for the
appellant in the plaint.
28. It is also important to note that, no doubt, the Trial
Court has discussed with regard to the defamatory imputations,
failed to consider the issue which is raised before the Court with
regard to the jurisdiction is concerned which is a fundamental
issue raised before the Trial Court as whether the Court as got
jurisdiction to entertain the suit. It is also important to note that
the Trial Court, in Para No.10 of the order, narrated the defence
taken by the defendant that the Court has no jurisdiction and
specific contention was taken in the plaint that the application is
liable to be dismissed for want of jurisdiction. No doubt, the
defendant also raised the contention that the suit is barred by
limitation, the same cannot be considered while considering an
application filed under Order 39, Rule 1 and 2 read with Section
151 of C.P.C. and the Court has to examine whether prima facie
case is made out and when the issue of jurisdiction is also
raised, the Trial Court ought to have considered the same, but
the same has not been considered by the Trial Court.
29. No doubt, the learned counsel for the appellant-
defendant relied upon several judgments, in the judgment of the
Apex Court in CIVIL APPEAL NO.7653 OF 2004 dated
29.03.2005, in Para No.21, the Apex Court has held that the
plea of jurisdiction goes to the very root of the matter. The Trial
Court having held that it had no territorial jurisdiction to try the
suit, the High Court should have gone deeper into the matter
and until a clear finding was recorded that the Court had
territorial jurisdiction to try the suit, no injunction could have
been granted in favour of the plaintiff by making rather a
general remark that the plaintiff has an arguable case that he
did not consciously agree to the exclusion of the jurisdiction of
the Court. The said judgment is aptly applicable to the facts of
the case on hand since, the issue with regard to jurisdiction has
not been considered by the Trial Court.
30. No doubt, in the case referred by the learned counsel
for the appellant, the Trial Court rejected the application on the
ground that there is no jurisdiction, but the High Court reversed
the same. Hence, the Apex Court observed that, no injunction
could have been granted in favour of the plaintiff by making
rather a general remark that the plaintiff has an arguable case.
In the case on hand, the Trial Court though comes to the
conclusion that there exists a prima facie case, but not discussed
anything about the jurisdiction.
31. The counsel for the appellant also relied upon the
judgment in AXIS BANK LTD. VS. MPS GREENERY
DEVELOPERS LTD. reported in 2010 SCC ONLINE CAL 1717,
wherein in Para No.3 of the judgment, it is observed that the
word "prima facie" case does not mean a case proved to the hilt,
but is one, which is at least "an arguable one" at the time of
trial. If at that stage, the Court prima facie finds that from the
averments made in the plaint itself, the Court has no territorial
jurisdiction to entertain the suit in accordance with law, it should
not consider the other two factors and reject the application on
the ground of absence of prima facie jurisdiction of the Court to
give the ultimate relief to the plaintiff. This judgment is aptly
applicable to the facts of the case on hand since, the Trial Court
has not considered the issue of jurisdiction.
32. With regard to the other aspect i.e., defamation is
concerned, since the Trial Court has considered the same taking
note of the words which have been used i.e., the defamatory
imputations, I do not find any error committed by the Trial Court
in coming to such a conclusion but, failed to take note of the fact
that whether the Court has got jurisdiction to entertain the suit.
No doubt, learned counsel appearing for the respondent would
vehemently contend that there is a communication between the
parties with regard to the affairs, it is contended that the same
is sent to Bengaluru and the counsel also brought to notice of
this Court Page Nos.176, 202 and 205. But, I have already
pointed out that the Trial Court has not discussed with regard to
the issue of jurisdiction whether the Court has got jurisdiction to
entertain the suit and what are all the materials placed before
the Court to invoke the jurisdiction of the Trial Court, while
granting the relief but, the Trial Court failed to take note of the
said fact into consideration
33. In the other judgment relied upon by the learned
counsel for the appellant in DEEPAK KUMAR @ DEEPAK SAHA
VS. HINDUSTAN MEDIA VENTRUES LTD. & ORS. reported in
2017 SCC ONLINE DEL 8970, in Para No.7 of the judgment, it
is held that cause of action has one meaning in relation to the
basis of a claim and another in relation to the jurisdiction of
Court. The former is the restricted and the latter is the wider
meaning of cause of action and there must be a cause of action
for jurisdiction and the same is also aptly applicable to the case
on hand.
34. In the other judgment relied upon by the learned
counsel for the appellant in KEDUTSO KAFPO VS.
KENEINGULIE reported in (1994) 1 GAUHATI LAW
REPORTS 145, in Para No.8 of the judgment, the Court has
held that, under Section 19 of the Code of Civil Procedure, such
a suit could be instituted either within the local limits of the
jurisdiction of a Court where the defendant resides or carries on
business or personally works for gain. Such a suit could also be
instituted within the local limits of the jurisdiction of a Court
where the wrong was done and though there is no dispute with
regard to the fact that suit could be instituted in a Court where
the wrong was done, but nothing is discussed by the Trial Court.
Hence, I am of the opinion that the Trial Court has committed an
error in not considering the issue of jurisdiction as to whether
the plaint is maintainable for want of jurisdiction and on perusal
of the order of the Trial Court in its entirety, it is seen that the
same has not been considered by the Trial Court. Even though
the Trial Court extracted the defence of the defendant in Para
No.10 of the order, however not touched upon the issue of
jurisdiction, while passing an order. Hence, I answer point
No.(1) framed by this Court as 'affirmative'.
Point No.(2)
35. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 17.02.2022 passed
on I.A.No.1 in O.S.No.2751/2020 on the file of
the LVIII Additional City Civil and Sessions
Judge, Bengaluru City (CCH No.59), allowing
I.A. No.1 filed under order 39, Rule 1 and 2
read with Section 151 of C.P.C., is hereby set
aside.
(iii) The matter is remitted back to the Trial Court
to consider the issue of jurisdiction as
observed hereinabove within one month from
the date of receipt of certified copy of this
order.
Sd/-
JUDGE
ST
