Meeta Agarwal D/O Shr Meenalal ... vs Hathroigari Grah Nirman Sehkari ...
2022 Latest Caselaw 49 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

              S.B. Civil Miscellaneous Appeal No. 1566/2021

    Meeta Agarwal D/o Shri Meenalal Agarwal W/o Shri Manojkumar
    Agarwal, R/o Plot No. 2, Sector No. 3, Jawahar Nagar, Jaipur.
                                                               ----Plaintiff/Appellant
                                        Versus
    1.     Hathroigari      Grah        Nirman         Sehkari         Samiti,     D-20,
           Meeramarg, Banipark, Jaipur Through President Shri
           Rampratap S/o Shri Jagdish Prasad Sen,
    2.     Kajod   Singh       S/o     Umed         Singh,       R/o    Arjun     Nagar,
           Durgapura, Jaipur.
    3.     Assistant    Engineer,       Rajasthan         State       Vidhyut     Nigam,
           Mansarovar, Jaipur.
    4.     Rajmata Gayatri Devi W/o Late Shri Mansingh Ji, R/o
           Lillypool, Tonk Road, C-Scheme, Jaipur.
    5.     Mitra Grah Nirman Sehkari Samiti Through President
           Rameshwar          Kumawat,             Piramid           Properties     And
           Investment, Near Kishor Misthan Bhandar, Police Station
           Sodala, Jaipur.
    6.     Jaipur Development Authority, Jaipur Through Secretary,
           JDA Circle Jawahar Lal Nehru Marg, Jaipur.
    7.     Deependra Sing Alias Banna S/o Shri Bacchan Singh, R/o
           4 A, SMS Colony, B-Block, Durgapura, Maharani Farm,
           Mansarovar, Jaipur.
                                                    ----Defendants/Respondents

    For Appellant(s)          :     Mr. Behari Lal Agarwal
                                    Mr. Akash Gupta
    For Respondent(s)         :     Mr. Bajrang Lal Choudhary


           HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
                                      Judgment

    04/01/2022
Reportable:

This appeal is directed against the order dated 17.08.2021

passed by the Court of learned Additional District and Sessions

(2 of 8) [CMA-1566/2021]

Judge No. 9, Jaipur Metropolitan -II, Jaipur (for short 'the learned

court below') in Civil Suit No. 56/2020 (484/2012) (36/2008) CIS

No. 1551/2014 titled as Meeta Agarwal vs. Hathroigari Grah

Nirman Sehkari Samiti and Ors. by which the application filed by

the defendants respondents has been allowed and the plaint has

been ordered to be returned under Order 7 Rule 10 CPC for filing

the same before the Competent Court.

Before deciding the controversy, it is necessary to mention

the facts of the case. The plaintiff-appellant (hereinafter referred

as the 'plaintiff') filed a suit for declaration, possession, damages,

mandatory and permanent injunction with regard to the disputed

property described in Para 1 of the plaint. It was stated in the

plaint that the disputed property was purchased by the plaintiff

from one Balram vide agreement dated 04.01.1992 and the

possession of the same was handed over to the plaintiff by said

Balram. On 15.06.1996, allotment letter was also transferred in

favour of the plaintiff by the defendant. Thereafter, boundary wall

was constructed around the disputed property. When the father of

the plaintiff visited the site on 03.02.2006, then he found that

certain Land Mafias had broken the locks of the plot by

trespassing upon it. When he asked them about the right, title of

the property in question, then they started quarreling with the

father of the plaintiff. An FIR was also lodged in this regard and

finally the instant suit has been filed before the learned court

below.

Para 24 and 25 of the plaint deals with the valuation of the

suit and jurisdiction of the Court, which read as under:-

**24& ;g fd cfygkt ekfy;r nkok ckcr~ ?kks"k.kk :i;s [email protected]&dk;e dh tkdj U;k; 'kqYd :i;s [email protected]&: ckcr~ vkKkRed fu"ks/kkKk :i;s [email protected]& dk;e dh tkdj U;k; 'kqYd [email protected]&:i;s o rqM+okus vfrdze.k rFkkdfFkr dksVM+h dh Hkwfe dh ekfy;r

(3 of 8) [CMA-1566/2021]

10][email protected]&:i;s dk;e dh tkdj U;k; 'kqYd :i;s [email protected]& ,oa ckcr~ csn[kyh o fnyk;s tkus dCtk oknhuh dks vkoafVr Hkw[k.M dh [kjhn dher jkf'k :i;s 20][email protected]&:i;k dk;e dh tkdj U;k;

'kqYd [email protected]&:i;k ,oa fnukad 03-02-2006 dks tcfd izfroknh la[;k 2 o 7 }kjk oknhuh ds mDr Hkw[k.M ij voS/k :i ls vfrdze.k dj dksBMh dk fuekZ.k fd;k x;k rc ls :i;s [email protected]&:i;s izfrekg dh nj ls dksBMh dh Hkwfe ds gtkZ bLrsekyh ds :i esa nkok nk;jh rd 26 ekg dk gtkZ bLrsekyh :i;s 26][email protected]&:i;k v{kjs Ncchl gtkj :i;s dk;e fd, tkdj U;k; 'kqYd :i;s [email protected]& ij okn&i= izLrqr gSA bl izdkj dqy dksVZ Qhl [email protected]&:i;s ij nkok gktk izLrqr gSA 25& ;g fd nkok gktk cfygkt ekfy;r nkok o fLFkfr lEifRr eqdnek dkfcys lekIr vnkyr gktk gSA**

The defendants respondents (hereinafter referred as the

'defendants') submitted written statement of denial to the plaint

and denied the averments made in the plaint. Reply of the

defendant with regard to Para Nos. 24 and 25 of the plaint is as

under:-

**24& ;g fd okn i= dh en la[;k&24 xyr] cscqfu;kn ,oa vk/kkjghu gksus ls drbZ Lohdkj ugha gSA oknh }kjk okni= dk ewY;kadu xyr :i ls djrs gq, de U;k; 'kqYd vnk fd;k gS rFkk fookfnr lEifRr dk ewY;kadu fdl vk/kkj ij fd;k gSA of.kZr ugha fd;k gSA ,slh lwjr esa oknh dk okn i= dkuwuu pyus ;ksX; ugha gSA 25& ;g fd okn i= dh en la[;k&25 dkuwuh gksus ds dkj.k tokc eksgrkt ugha gSA**

Bare perusal of the aforesaid paras clearly indicates that no

such objection was taken by the defendants with regard to

pecuniary jurisdiction of the Court.

Counsel for the plaintiff argued that the plaintiff had filed the

instant suit way back in the year 2008 and written statement was

submitted by the defendants and no objection was taken by

defendants with regard to the pecuniary jurisdiction of the Court

and thereafter, on the basis of the pleadings of the parties several

issues were framed. Issue No.6 is relevant, which is as under:-

6& vk;k okfnuh }kjk okn i= dk ewY;kadu xyr :i ls djrs gq, de U;k; 'kqYd vnk fd;k x;k gS rFkk fookfnr lEifRr dk ewY;kadu fdl vk/kkj ij fd;k gS of.kZr ugha fd;kA ftl vk/kkj ij okfnuh dk okn dkfcys [kkfjth gS\ Counsel for the plaintiff further argued that after recording

the evidence of both the sides on all the issues, the case was

posted for final arguments and at that stage the defendants

(4 of 8) [CMA-1566/2021]

submitted an application on 10.08.2021 stating therein that the

learned court below has no pecuniary jurisdiction to hear and

decide the suit, hence, the suit is liable to be dismissed. Counsel

further submits that overlooking the provisions contained under

Section 21 of the Code of Civil Procedure, the learned court below

has erroneously accepted the application filed by the defendants

and passed the impugned order by returning the plaint to the

plaintiff under Order 7 Rule 10 CPC for filing the same before the

Competent Court. In support of his contentions, learned counsel

for the plaintiff has placed reliance upon the judgment delivered

by Hon'ble the Apex Court in Harshad Chiman Lal Modi vs. D.L.F.

Universal Ltd. and Anr. Reported in 2005(3) Civil Court Cases 711

wherein the Hon'ble Supreme Court has taken a view that the

objection with regard to territorial and pecuniary jurisdiction has

to be taken at the earliest possible opportunity and in any case at

or before settlement of issues. Lastly, counsel for the plaintiff

argued that 13 years have passed after filing of the suit and in

case the impugned order is allowed to stand as it is then the

plaintiff would be seriously prejudiced. Hence, the impugned order

be quashed and set aside.

Per contra, counsel appearing for the defendants opposed

the arguments raised by the counsel for the plaintiff and stated

that from bare perusal of the contents of the plaint it is clear that

the learned court below has no pecuniary jurisdiction to hear and

decide the suit. Hence, the learned court below has rightly passed

the impugned order. Counsel further submits that the objection

regarding the pecuniary jurisdiction can be taken at any stage

even before the pronouncement of the judgment. In support of his

contentions, counsel for the defendants has placed reliance upon

(5 of 8) [CMA-1566/2021]

the judgments delivered by Hon'ble the Apex Court in M/s EXL

Careers and Anr. vs. Frankfinn Aviation Services Private Limited

reported in AIR Online 2020 SC 672, Devendra Singh vs. Bhole

Ram reported in AIR 1991 Allahabad 157, Narendra Kumar Soni

vs. M/s Sun Shine Roadways and Ors. reported in AIR 1999 Delhi

189 and Chandra Prem Shah and Ors. vs. K. Reheja Universal

Private Limited passed by the Bombay High Court in Civil

Application No. 469/2014.

Lastly, counsel for the defendants argued that the learned

court below has ample jurisdiction under Order 14 Rule 5 to frame

any additional issue at any stage before disposal of the suit. So,

he prayed for rejection of the appeal.

I have heard learned counsel appearing for both the parties

and perused the documents available on record.

It is not in dispute that the suit was filed in the year 2008

and on bare perusal of Para Nos. 24 and 25 of the plaint, it is clear

that the valuation of the suit was mentioned and the plea was

also taken therein that the learned court below is competent to

hear and decide the controversy in question on the basis of the

valuation determined in the plaint by the plaintiff. When the

written statement was submitted, no such plea was ever taken by

the defendants in their written statement and it is settled position

of law as per Section 21 of the Code of Civil Procedure that the

objection with regard to pecuniary jurisdiction shall be taken at

the first instance at the earliest possible opportunity. Section 21 of

the Code of Civil Procedure deals with jurisdiction, which is as

under:-

"Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such

(6 of 8) [CMA-1566/2021]

objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice."

Considering the above mandatory position of law, the

Hon'ble Apex Court has decided the aforesaid issue in the case of

Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd. and Anr.

Reported in 2005(3) Civil Court Cases 711. Para 27 of the

aforesaid judgment is relevant, which is as under:-

" We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are

(i) Territorial or local jurisdiction (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."

It is also not in dispute that no such objection was taken by

the defendants at the earliest stage or not during the course of

(7 of 8) [CMA-1566/2021]

trial when it reached to its final stage. Now at the stage of final

disposal, the application has been submitted which has been

accepted by the learned court below by overlooking the

mandatory provisions contained under Section 21 of the Code of

Civil Procedure. The judgments cited by the counsel for the

defendants are not applicable and the same are distinguishable

looking to the facts of this case. Hence, the impugned order is not

sustainable in the eye of law and the same is liable to be quashed

and set aside.

In view of the above discussions, this appeal deserves to be

allowed and the impugned order dated 17.08.2021 passed by the

Court of learned Additional District and Sessions Judge No. 9,

Jaipur Metropolitan-II, Jaipur in Civil Suit No. 56/2020 (484/2012)

(36/2008) CIS No. 1551/2014 titled as Meeta Agarwal vs.

Hathroigari Grah Nirman Sehkari Samiti and Ors. is quashed and

set aside. The application filed by the defendants is dismissed and

the suit is ordered to be restored to its original number.

The parties are directed to appear before the trial Court on

27.01.2022.

The learned court below is directed to dispose of the

underlying suit pending before it since 2008 within a period of four

months from the date of presentation of a certified copy of this

order.

Adjournments in the suit should not be granted without just

cause and when unnecessarily warranted be, by a reasoned order

or on a proper application in writing there being filed to the

satisfaction of the trial Court. The learned court below should also

adhere to the principles laid down by the Hon'ble Apex Court in

the case of M/s. Shiv Cotex vs. Tirgun Auto Plast Pvt. Ltd. & Ors.

(8 of 8) [CMA-1566/2021]

reported in 2011 (9) SCC 678, wherein it has been held that

adjournments should be ordinarily limited to three/four times in

the life of the suit as also as per the provisions of Order 17 CPC.

All pending applications, if any, stand disposed of.

(ANOOP KUMAR DHAND),J

Ritu/48

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