S.Dhanalakshmi (Partner) vs Sahal V.J
2022 Latest Caselaw 6043 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
                     OP(C) NO. 404 OF 2020
     AGAINST THE ORDER IN I.A.No.2/2020 IN OS 202/2013 OF
                ADDITIONAL SUB COURT, KOTTAYAM
PETITIONER/2nd DEFENDANT:

          S.DHANALAKSHMI (PARTNER),
          AGED 35 YEARS,
          W/O.K.VELAZHAGAN, IRC-INDUSTRIAL RUBBER COMPANY,
          NO.A-1, SIDCO INDUSTRIAL ESTATE,ARIYAMANGALAM,
          TIRUCHIRAPPALLI - 620 010, TAMILNADU.

          BY ADVS.
          PHILIP ANTONY CHACKO
          K. REMIYA RAMACHANDRAN
          ANJALY N.S.


RESPONDENTS/PLAINTIFF/1ST DEFENDANT:

    1     SAHAL V.J.,
          S/O.JALAL,AGED 26,VALIYAVEETTIL HOUSE, ARUVITHURA
          P.O., ERATTUPETTA - 2, PROPRIETOR PROFESSIONAL
          RUBBERS, ERATTUPETTA, KOTTAYAM (DT.).

    2     IRC INDUSTRIAL RUBBER COMPANY,
          MANAGING PARTNER NO.A-1, SIDCO INDUSTRIAL ESTATE,
          ARIYAMANGALAM, TIRUCHIRAPPALLI - 620 010,TAMILNADU.

          BY ADV SRI.M.NARENDRA KUMAR


     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2022,
THE COURT ON 01.06.2022 DELIVERED THE FOLLOWING:
 O.P(C).No.404/2020                   2




                                                               "C.R"

                      A. BADHARUDEEN, J.
              ================================
                      O.P(C).No.404 of 2020
              ================================
                 Dated this the 1st day of June, 2022

                          JUDGMENT

The 2nd defendant in O.S.No.202/2013 pending before the

Additional Sub Court, Kottayam, has preferred this Original

Petition under Article 227 of the Constitution of India, challenging

the order in I.A.No.2/2020 in the above Suit (Ext.P3), whereby the

learned Sub Judge posted the petition filed by the defendants to

hear the issue of territorial jurisdiction of the Sub Court.

2. The respondents herein are the plaintiff and the 1 st

defendant respectively.

3. Heard the learned counsel for the petitioner as well as

the 1st respondent in detail. Perused the materials placed along

with the Original Petition, counter affidavit and reply affidavit.

4. The learned counsel for the petitioner argued that the

petitioner herein filed I.A.No.2/2020 contending that the Sub

Court, Kottayam, has no jurisdiction to entertain the Suit since no

cause of action for the Suit arose within the jurisdiction of

Kottayam district. It is submitted further that even though the issue

of territorial jurisdiction shall be tried and decided as a preliminary

issue, the Sub Court posted the said petition along with the Suit for

considering the said question. According to the learned counsel for

the petitioner, the said procedure adopted by the trial court is

erroneous and, therefore, the same requires interference with

direction to the trial court to consider and pass orders on merits in

the petition treating the same as a preliminary issue.

5. In this connection, the learned counsel placed a decision

reported in [AIR 1993 Kerala 210], Femina Handloom of India,

Cannanore v. M/s.M.R.Verma & Sons. In the said decision it was

held as under:

"Where the defendant alleged that the court has no jurisdiction to try

the case and an issue is framed regarding jurisdiction, for the convenience of the parties same should have been tried as preliminary issue and if the court finds that it has no jurisdiction the plaintiff can very well proceed the litigation in the proper court. The finding regarding jurisdiction at the final stage would only cause undue hardship to parties."

6. Similarly, the learned counsel for the petitioner placed

another decision reported in [2017 (4) KLT 468], Prasad v.

Travancore Devaswom Board, to contend that where issues of law

and facts are framed in a Suit, those relating to law, if it relates to

jurisdiction and bar to suit, be tried first. In this case, strangely, no

issue was framed with regard to law and the court below proceeded

to try the issues of facts but to dismiss the Suit on a question

relating to jurisdiction, though no such issue had been framed at all.

7. Per contra, the learned counsel for the 1st respondent

submitted that the question of territorial jurisdiction raised by the

petitioner herein is without bona fides. He submitted further that

the defendants herein filed written statement in this case of 2013 as

early as on 03.09.2013 and no plea as regards to the teritorial

jurisdiction seen raised therein. He also submitted that in the

written statement, there is wilful admission by the defendants to the

effect that part of the transaction led to the Suit arose on different

dates within the jurisdiction of Kottayam. The relevant paragraph

in the counter affidavit is as under:

"4. The petitioner filed written statement in the suit in which it is admitted that the petitioner purchased the rubber from the first respondent from the factory at Kottayam and the godown at Erattupetta. The relevant portion of the written statement in paragraph 4 of the written statement is extracted hereunder:

"4. ........... It is admitted that the defendants used to purchase rubber from the plaintiff on different dates from different factories at Kottayam and from the godown at Erattupetta. The defendants used to take delivery of the rubber dispatched in their favour and immediately they used it for manufacturing solid tyres..........."

In these circumstances territorial jurisdiction is not an issue which arises for consideration in the suit. ...."

He also submitted that in view of the wilful admission, applying

Section 20 of the Code of Civil Procedure, part of the transaction

took place within the jurisdiction of Sub Court, Kottayam and

therefore, the plaintiff rightly instituted the Suit before the Sub

Court, Kottayam, and the question of territorial jurisdiction does

not arise at all.

8. The learned counsel highlighted a decision of the Apex

Court reported in [(1989) 2 SCC 163], A.B.C. Laminart Pvt. Ltd.

v. A.P. Agencies and paragraphs 13 to 15 of the judgment are

highlighted to contend that since part of the transaction involved in

the Suit is within the jurisdiction of Kottayam district, the Sub

Court, has ample jurisdiction to deal with the matter and, therefore,

the question of territorial jurisdiction raised at the instance of the

defendants could not succeed, prima facie.

9. Coming to the core issue, I have no hesitation to hold

that where the defendant alleged that the court has no jurisdiction

to try the case and an issue is framed regarding jurisdiction, for the

convenience of the parties same should have been tried as

preliminary issue and if the court finds that it has no jurisdiction

the plaintiff can very well proceed the litigation in the proper court.

The finding regarding jurisdiction at the final stage would only

cause undue hardship to the parties and also that when issue of law

and facts are framed in a Suit, those relating to the jurisdiction to

be tried at the first hand.

10. Here, the Suit was instituted in the year 2013. When the

written statement was filed as on 03.09.2013, the defendants

categorically and wilfully admitted that part of the transaction was

within the jurisdiction of the Sub Court, Kottayam. However, the

learned counsel for the petitioner submitted that in the reply

affidavit filed by the petitioner, in para.4, the circumstances led to

the above contention in the written statement has been explained

and later it was revealed that the plaintiff does not have any

factories or godowns in other place in Kottayam district except in

Erattupetta. I do not think that the above explanation in the reply

affidavit is a reason for retracting the wilful admission made in the

written statement, filed as early in the year 2013. It is relevant to

note that the present application was filed at a much belated stage

in the year 2020.

11. Going by the impugned order, the procedure adopted by

the learned Munsiff to decide the question of territorial jurisdiction

during the final stage of trial cannot be justified and therefore, the

said order is liable to be set aside.

12. Since Ext.P3 is set aside, normally the matter has to be

remitted back to the trial court for deciding the question of

jurisdiction afresh, as a preliminary issue of law. However, it

appears that the Suit is of the year 2013 (5 plus old case) and has

been pending before the trial court and an earlier disposal of the

same is the need of the hour. It is in this context, I am inclined to

address the issue of jurisdiction in the interest of justice, by

exercising discretion of this Court.

13. Section 20 of the Code of Civil Procedure provides as

under:

"20: Other Suits to be instituted where defendants reside or cause of action arises:-- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises."

Section 20(c) of the C.P.C is emphatically clear on the point that a

Suit can be instituted in a place where the cause of action wholly or

part arises. In the plaint, the plaintiff specifically contended in

para.4 and 10 that part of the transaction took place within the

jurisdiction of Kottayam village wherefrom the goods were

consigned. The said fact was admitted by the defendants in the

written statement as well. The said wilful admission cannot be

retracted. In such a case, it is emphatically clear that the Sub

Court, Kottayam is having territorial jurisdiction in so far as the

present Suit is concerned and, therefore, the question of jurisdiction

raised by the petitioner cannot be sustained. The question of

jurisdiction found against the petitioner. Finding so, I direct the

learned Sub Judge to expedite the disposal of the case on merits,

within a period of 3 months from the date of receipt of a copy of

this judgment.

This Original Petition stands disposed of as indicated herein

above.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/

APPENDIX OF OP(C) 404/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE PLAINT, O.S.NO.202 OF 2013 BEFORE THE ADDL. SUB COURT, KOTTAYAM DATED 15/3/2013 FILED BY THE RESPONDENT.

EXHIBIT P2 THE TRUE COPY OF THE PETITION, I.A.NO.2/2020 IN O.S.NO.202/2013 DATED 8/1/2020 FILED BY THE PETITIONER.

EXHIBIT P3 THE TRUE COPY OF THE ORDER IN I.A.NO.2/2020 IN O.S.NO.202/2013 DATED 16/1/2020 BY THE ADDL. SUB COURT, KOTTAYAM.

RESPONDENTS' EXHIBITS

EXT.R1(a): TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.202/2012 IN THE SUB COURT, KOTTAYAM DATED 3.9.2013.