Koopilan Uneen's Daughter Pathumma
& Ors Vs. Koopilan Uneen's Son Kuntalan Kutty [1981] INSC 135 (6 August
1981)
KOSHAL, A.D.
KOSHAL, A.D.
ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)
CITATION: 1981 AIR 1683 1982 SCR (1) 183 1981
SCC (3) 589 1981 SCALE (3)1240
ACT:
Venue-Objection to the place of suing to be
entertained by Appellate or Revisional Court, condition to be fulfilled,
explained-Code of Civil Procedure, section 21(1).
HEADNOTE:
In a suit for partition of immovable property
filed in the Court of Munsiff Parappanangadi in the year 1938 that Court passed
a preliminary decree for partition on the 18th February, 1940. The parties to
the suit took no further interest in the matter for more than two decades. In
the meantime according to the order of the High Court of Kerala dated December
22, 1956 refining the territorial limits of the Courts of Munsiffs functioning
in district Calicut, of which the Court of Munsiff at Parappanangadi was one,
the suit property came under the territorial jurisdiction of the Munsiff's
Court at Manjeri. The plaintiff on the 18th January, 1966 filed an application
praying that a final decree the suit be passed. Defendant No. 12 immediately
took an objection that the Manjeri Court had no territorial jurisdiction to
hear the application and that the matter should have been agitated in the Court
of Munsiff at Parappanagadi. The objection was overruled by the Manjeri Court
which proceeded to partition the property metes and bounds and ultimately
passed a final decree in that behalf on 9th July, 1968. An appeal filed against
the final decree by defendant No. 12 failed, but he succeeded before learned
single Judge of the Kerala High Court who ruled that it was only the
Parappanangadi Court that had the territorial jurisdiction to entertain the
application and the final decree was set aside. Hence the appeal by special
leave.
Allowing the appeal, the Court
HELD: 1:1. In order that an objection to the
place of suing may be entertained by any appellate or revisional Court, the fulfilment
of the following three conditions is essential, according to the provisions
contained in sub- section (1) of section 21 of the Code of Civil Procedure:
(i) The objection was taken in the Court of
first instance;
(ii) it was taken at the earliest possible
opportunity and in case where issues are settled, at or before such settlement;
(iii) there has been a consequent failure of justice. [185 F-G] 1:2. In the
present case conditions Nos. 1 and 2 are no doubt fully satisfied; but before
the two appellate Courts below could allow the objection to be taken, it was
further necessary that a case of failure of justice on account of the place
suing having been wrongly selected was made out.
Since the respondents failed to point out
even before this Court that a failure of justice had occurred by reason 184 of
Manjeri having been chosen as the place of suing, the provisions of sub-section
(1) of section 21 of the Code of Civil Procedure made it imperative for the
District Court and the High Court not to entertain the objection, whether or
not it was otherwise well founded. [185 H, 186 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 564 of 1970.
Appeal by special leave from the judgment and
decree dated the 3rd April, 1969 of the Kerala High Court in S.A. No. 266 of
1968.
A.S. Nambiyar for the Appellants.
K.T. Harindra Nath, N. Sudhakaran and M.R.K.
Pillai for Respondent No. 1.
The Judgment of the Court was delivered by
KOSHAL, J. This appeal by special leave is directed against the judgment dated
3rd of April, 1969 of the High Court of Kerala rendered in a Second Appeal
arising from a suit for partition of immovable property.
2. The suit was filed in the Court of Munsiff
at Parappanangadi in the year 1938. That Court passed a preliminary decree for
partition on the 18th February, 1940 and thereafter the parties took no further
interest in the matter for more than two decades. In the mean time the High
Court passed an order dated December 22, 1956 redefining the territorial limits
of the Courts of Munsiffs functioning in district Calicut, of which the Court
of Munsiff at Parappanangadi was one. According to that order the territory in
which the property disputed in the suit was situated, came under the
territorial jurisdiction of the Munsiff's Court at Manjeri and it was in that
Court that the plaintiff filed, on the 18th January, 1966 an application (I.A.
No. 109 of 1966) praying that a final decree in the suit be passed. Defendant
No. 12 (who is now dead and is represented in this appeal by respondents No. 1
and Ors.) immediately took an objection that the Manjeri Court had no
territorial jurisdiction to hear the application and that the matter should
have been agitated in the Court of Munsiff at Parappananagadi. The objection
was overruled by the Manjeri Court which proceeded to partition the property by
metes and bounds and ultimately passed a final decree in that behalf on 9th
July, 1968. An appeal was filed 185 against final decree by defendant No. 12 in
the Court of District Judge before whom the objection to the jurisdiction
assumed by the Manjeri Court was again taken but was repelled with the result
that the final decree was confirmed.
The third round of litigation in regard to
question of jurisdiction took place in the High Court wherein a learned single
Judge upheld the objection and ruled that it was only the Parappanangadi Court
that had the territorial jurisdiction to entertain the application praying for
final decree and that the assumption of such jurisdiction by the Manjeri Court
was not justified. The objection being upheld, the final decree was set aside
and there was thus no occasion for the High Court to decide the other points
arising in this appeal.
3. We have heard learned counsel for the
parties on the question of jurisdiction. An unfortunate aspect of this
litigation has been that although that question has been agitated already in
three courts and has been bone of contention between that parties for more than
a decade, the real provision of law which clinches it was never put forward on
behalf of the appellant before us nor was adverted to by the learned District
Judge or the High Court.
That provision is contained in sub-section
(1) of Section 21 of the Code of Civil Procedure which runs thus:
"21 (1) No objection as to the place of
suing 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." In
order that an objection to the place of suing may be entertained by an
appellate or revisional court, the fulfilment of the following three conditions
is essential:
(1) The objection was taken in the Court of first
instance.
(2) It was taken at the earliest possible
opportunity and in cases where issues are settled, at or before such
settlement.
(3) There has been a consequent failure of
justice.
All these three conditions must co-exist. Now
in the present case conditions Nos. 1 and 2 are no doubt fully satisfied; but
then 186 before the two appellate Courts below could allow the objection to be
taken, it was further necessary that a case of failure of justice on account of
the place of suing having been wrongly selected was made out. Not only was no
attention paid to this aspect of the matter but no material exists on the
record from which such failure of justice may be inferred. We called upon
learned counsel for the contesting respondents to point out to us even at this
stage any reason why we should hold that a failure of justice had occurred by
reason of Manjeri having been chosen as the place of suing but he was unable to
put forward any. In this view of the matter we must hold that the provisions of
sub- section above exracted made it imperative for the District Court and the
High Court not to entertain the objection whether or not it was otherwise well
founded. We, therefore, refrain from going into the question of the correctness
of finding arrived at by the High Court that the Manjeri Court had territorial
jurisdiction to take cognizance of the application praying for final decree.
4. In the result we accept the appeal, set
aside the judgment of the High Court and remand the case back to it for
deciding on merits the appeal which culminated in that judgment. As the
proceedings for the final decree have been pending since 1966, we further
direct that the High Court shall decide the appeal last mentioned at the
earliest possible and, in any case, within three months from the receipt of the
records from this Court. The Registry shall take immediate steps to have the
records dispatched to the High Court. There will be no order as to costs.
S.R. Appeal allowed.
Back
