Full Judgment Text
* HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.317 of 2013
th
Decided on : 7 August, 2013
M/S. APOSTLE INSTITUTE FOR TECHNOLOGY FOR
WOMEN & ANR. …… Appellants
Through: Mr. Rajiv K. Garg & Ms. Kavita Rawat,
Advocates.
Versus
MOHAN DAS …… Respondent
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
C.M. No.12161/2013 (for exemption)
Exemption allowed, subject to the deficiency being rectified.
The application stands disposed of.
F.A.O. No.317/2013 & C.M. No.12160/2013 (for stay)
1. This is an appeal filed by the appellants under Order 43 Rule 1
CPC against the order dated 6.7.2013 passed by the learned Additional
District Judge in C.S. No.203/2011 by virtue of which the application of
the appellants under Order VII Rule 10 read with Section 151 CPC for
rejection of the plaint, was dismissed.
F.A.O. No.317/2013 Page 1 of 6
2. I have heard Mr. Rajiv Garg, learned counsel for the appellants and
have gone through the record. The main contention of the learned
counsel for the appellants is that no part of cause of action has arisen in
Delhi as the appellant is a proprietor of a firm having its office in
Dwarka. The appellant, who had entered into an agreement, is a society
duly registered at Dehradun having hostel facilities for students studying
in Institute at Greater Noida. It is alleged that no services were ever
provided by the respondent to the Institution of the appellant in Delhi.
The job was to be done at Greater Noida and no part of cause of action
had arisen in Delhi. The agreement was signed in Greater Noida and,
therefore, Delhi court does not have the jurisdiction. The
appellant/defendant’s application under Order VII Rule 10 CPC was
dismissed by the trial court. The learned counsel in support of his
submissions has also placed reliance on a Division Bench judgment of
this court passed in case titled Arinits Sales Pvt. Ltd. vs. Rockwell Plastic
Pvt. Ltd. & Ors.; 149 (2008) DLT 123 (DB) wherein the order returning
the plaint has been upheld. On the basis of the said judgment the learned
counsel has contended that the facts of the case are same and accordingly
in the present case also the application ought to have been allowed.
F.A.O. No.317/2013 Page 2 of 6
3. I have gone through the impugned order as well as the record and
the aforesaid judgment. There is no dispute about the fact that under
Order VII Rule 10 CPC the court has ample power to return the plaint in
case it does not have the jurisdiction to try the same. The jurisdiction to
entertain the plaint is given in Section 20 of the Evidence Act which
reads as under :-
“ 20 Admissions by persons expressly referred to by
party to suit. - Statements made by persons to whom a
party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.”
4. A perusal of the aforesaid Section would clearly show that in order
to have the territorial jurisdiction, the plaintiff must aver in his plaint that
either the defendant is residing within the territorial jurisdiction of the
court concerned or is working for gain or the cause of action either in part
or in full has arisen within the jurisdiction of the said court.
5. In the instant case, the respondent/plaintiff had filed a suit for
recovery of ` 15 lacs approximately against the appellants/defendants on
account of certain services having been provided. Paragraph 18 of the
F.A.O. No.317/2013 Page 3 of 6
plaint is very material wherein the averments regarding the territorial
jurisdiction have been made, which reads as under :-
“18. That the defendant No.1 had its corporate and
principal office at Malviya Nagar, Delhi at the time
of execution of the Memorandum of Understanding.
All the payments towards the services availed by the
defendants was made payable at New Delhi. Part
payment received by the plaintiff has been deposited
in its Delhi account. Both the plaintiff and the
defendants have their respective offices at Delhi. In
view of the above, this Hon’ble Court has the
requisite territorial jurisdiction to try and entertain
the present suit.”
6. At the stage of rejection of the plaint, the court has to see only the
averments made in the plaint and the documents relied upon. It does not
have to see any other document filed by the defendants for the purpose of
deciding the credibility and genuineness of the averments or the
documents which have been placed on record by the opposite side. If this
exercise is done then para 18 of the plaint would clearly show that the
Delhi court had the jurisdiction because the respondent is specifically
saying that the appellant/defendant No.1 has its corporate and principal
office at Malviya Nagar at the time of execution of the memorandum of
understanding. The payments towards the services availed of by the
F.A.O. No.317/2013 Page 4 of 6
appellant/defendant were made payable at New Delhi. Part payment was
received by the respondent/plaintiff and deposited in Delhi, therefore, it
can by no stretch of imagination be said that neither the part of cause of
action had arisen in Delhi nor the appellant/defendant was having a
corporate or principal office at Malviya Nagar at the time when the suit
was being filed. This is the defence of the appellant/defendant that its
corporate office is in Dehradun which has to be proved during the course
of trial. The learned trial court has rightly rejected the application and
observed that these are only tentative findings and the question of the
court having territorial jurisdiction is a mixed question of fact and law
which can be decided only after parties are given an opportunity to
adduce their respective evidence. It has also been observed that this
finding which has been arrived at by the trial court prima facie should not
be treated as a finding returned on merits. All these facts which have
been observed by the learned trial court clearly show that the trial court is
cognizant of its duties while dealing with the question which is sought to
be raised by the appellant/defendant with regard to the return of the
plaint. The appellant is trying to take this court on a voyage to determine
the genuineness, correctness and the falsity of the averments made in para
F.A.O. No.317/2013 Page 5 of 6
18 of the plaint with regard to the territorial jurisdiction which cannot be
permitted to be done.
7. I accordingly, feel that there is no merit in the appeal filed by the
appellants; therefore, the appeal is dismissed.
V.K. SHALI, J.
AUGUST 07, 2013
‘AA’
F.A.O. No.317/2013 Page 6 of 6
+ F.A.O. No.317 of 2013
th
Decided on : 7 August, 2013
M/S. APOSTLE INSTITUTE FOR TECHNOLOGY FOR
WOMEN & ANR. …… Appellants
Through: Mr. Rajiv K. Garg & Ms. Kavita Rawat,
Advocates.
Versus
MOHAN DAS …… Respondent
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
C.M. No.12161/2013 (for exemption)
Exemption allowed, subject to the deficiency being rectified.
The application stands disposed of.
F.A.O. No.317/2013 & C.M. No.12160/2013 (for stay)
1. This is an appeal filed by the appellants under Order 43 Rule 1
CPC against the order dated 6.7.2013 passed by the learned Additional
District Judge in C.S. No.203/2011 by virtue of which the application of
the appellants under Order VII Rule 10 read with Section 151 CPC for
rejection of the plaint, was dismissed.
F.A.O. No.317/2013 Page 1 of 6
2. I have heard Mr. Rajiv Garg, learned counsel for the appellants and
have gone through the record. The main contention of the learned
counsel for the appellants is that no part of cause of action has arisen in
Delhi as the appellant is a proprietor of a firm having its office in
Dwarka. The appellant, who had entered into an agreement, is a society
duly registered at Dehradun having hostel facilities for students studying
in Institute at Greater Noida. It is alleged that no services were ever
provided by the respondent to the Institution of the appellant in Delhi.
The job was to be done at Greater Noida and no part of cause of action
had arisen in Delhi. The agreement was signed in Greater Noida and,
therefore, Delhi court does not have the jurisdiction. The
appellant/defendant’s application under Order VII Rule 10 CPC was
dismissed by the trial court. The learned counsel in support of his
submissions has also placed reliance on a Division Bench judgment of
this court passed in case titled Arinits Sales Pvt. Ltd. vs. Rockwell Plastic
Pvt. Ltd. & Ors.; 149 (2008) DLT 123 (DB) wherein the order returning
the plaint has been upheld. On the basis of the said judgment the learned
counsel has contended that the facts of the case are same and accordingly
in the present case also the application ought to have been allowed.
F.A.O. No.317/2013 Page 2 of 6
3. I have gone through the impugned order as well as the record and
the aforesaid judgment. There is no dispute about the fact that under
Order VII Rule 10 CPC the court has ample power to return the plaint in
case it does not have the jurisdiction to try the same. The jurisdiction to
entertain the plaint is given in Section 20 of the Evidence Act which
reads as under :-
“ 20 Admissions by persons expressly referred to by
party to suit. - Statements made by persons to whom a
party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.”
4. A perusal of the aforesaid Section would clearly show that in order
to have the territorial jurisdiction, the plaintiff must aver in his plaint that
either the defendant is residing within the territorial jurisdiction of the
court concerned or is working for gain or the cause of action either in part
or in full has arisen within the jurisdiction of the said court.
5. In the instant case, the respondent/plaintiff had filed a suit for
recovery of ` 15 lacs approximately against the appellants/defendants on
account of certain services having been provided. Paragraph 18 of the
F.A.O. No.317/2013 Page 3 of 6
plaint is very material wherein the averments regarding the territorial
jurisdiction have been made, which reads as under :-
“18. That the defendant No.1 had its corporate and
principal office at Malviya Nagar, Delhi at the time
of execution of the Memorandum of Understanding.
All the payments towards the services availed by the
defendants was made payable at New Delhi. Part
payment received by the plaintiff has been deposited
in its Delhi account. Both the plaintiff and the
defendants have their respective offices at Delhi. In
view of the above, this Hon’ble Court has the
requisite territorial jurisdiction to try and entertain
the present suit.”
6. At the stage of rejection of the plaint, the court has to see only the
averments made in the plaint and the documents relied upon. It does not
have to see any other document filed by the defendants for the purpose of
deciding the credibility and genuineness of the averments or the
documents which have been placed on record by the opposite side. If this
exercise is done then para 18 of the plaint would clearly show that the
Delhi court had the jurisdiction because the respondent is specifically
saying that the appellant/defendant No.1 has its corporate and principal
office at Malviya Nagar at the time of execution of the memorandum of
understanding. The payments towards the services availed of by the
F.A.O. No.317/2013 Page 4 of 6
appellant/defendant were made payable at New Delhi. Part payment was
received by the respondent/plaintiff and deposited in Delhi, therefore, it
can by no stretch of imagination be said that neither the part of cause of
action had arisen in Delhi nor the appellant/defendant was having a
corporate or principal office at Malviya Nagar at the time when the suit
was being filed. This is the defence of the appellant/defendant that its
corporate office is in Dehradun which has to be proved during the course
of trial. The learned trial court has rightly rejected the application and
observed that these are only tentative findings and the question of the
court having territorial jurisdiction is a mixed question of fact and law
which can be decided only after parties are given an opportunity to
adduce their respective evidence. It has also been observed that this
finding which has been arrived at by the trial court prima facie should not
be treated as a finding returned on merits. All these facts which have
been observed by the learned trial court clearly show that the trial court is
cognizant of its duties while dealing with the question which is sought to
be raised by the appellant/defendant with regard to the return of the
plaint. The appellant is trying to take this court on a voyage to determine
the genuineness, correctness and the falsity of the averments made in para
F.A.O. No.317/2013 Page 5 of 6
18 of the plaint with regard to the territorial jurisdiction which cannot be
permitted to be done.
7. I accordingly, feel that there is no merit in the appeal filed by the
appellants; therefore, the appeal is dismissed.
V.K. SHALI, J.
AUGUST 07, 2013
‘AA’
F.A.O. No.317/2013 Page 6 of 6