Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.25542555 OF 2019
(Arising out of S.L.P.(C) Nos.1977719778 of 2017)
Isha Distribution House Pvt. Ltd. ….Appellant(s)
VERSUS
Aditya Birla Nuvo Ltd. & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed against the final
judgment and order dated 13.02.2017 in APOT
No.274 of 2016 and dated 02.05.2017 in RVWO
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.03.07
17:29:14 IST
Reason:
No.16 of 2017 passed by the High Court at Calcutta
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whereby the High Court dismissed the appeal and
review petition filed by the appellant herein.
3.
These appeals involve a short point as would
be clear from the facts stated infra .
4. The appellant is the plaintiff whereas the
respondents are the defendants in a civil suit out of
which these appeals arise.
5. The appellant filed a civil suit (Civil Suit
No.88/2016) against the respondents for a
declaration, damages and for grant of injunction
etc. in the High Court at Calcutta on its original
side.
6. The suit was filed inter alia for a declaration
that the termination of two agreements dated
11.07.2007 and 21.05.2008 made by respondent
No.1 was wrongful and, therefore, both the
agreements be declared as being bad in law. The
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other reliefs claimed in the suit were consequential
in nature to the main relief.
7. The appellant (plaintiff) also filed an
application and sought leave to file the civil suit as
required under Clause 12 of the Letters Patent Act,
1865. The Single Judge by order dated 18.03.2016
granted leave to the appellant as prayed for.
8. The respondents, on entering their appearance
in the suit, filed an application and prayed therein
for revocation of the leave granted to the appellant
(plaintiff) for filing a civil suit by order dated
18.03.2016.
9. The respondentsdefendants, in substance,
sought revocation of leave on the ground that since
no part of cause of action arose within the territorial
jurisdiction of the Calcutta High Court but it arose
at Bangalore and hence the civil suit could not have
been filed in Calcutta High Court for want of
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territorial jurisdiction. It was, therefore, prayed that
the leave granted to the appellant to file and
prosecute the civil suit in the Calcutta High
Court(original side) is liable to be revoked.
10. The appellant (plaintiff) also filed their reply
and contested the said application. By order dated
28.07.2016, the Single Judge allowed the
application of the respondents(defendants) and
revoked the leave. The appellant felt aggrieved and
filed an appeal before the Division Bench of the
High Court. By impugned order, the Division Bench
dismissed the appeal and affirmed the order of the
Single Judge, which has given rise to filing of this
appeal by way of special leave by the
appellant(plaintiff) in this Court.
11. So, the short question, which arises for
consideration in this appeal, is whether the High
Court (Single Judge and Division Bench) was
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justified in allowing the respondents’ (defendants’)
application and thereby was justified in revoking the
leave granted to the appellant (plaintiff) by order
dated 18.03.2016.
12. Heard Mr. K.V. Vishwanathan, learned senior
counsel for the appellant and Mr. Dhruv Mehta,
learned senior counsel and Mr. Rajesh Singh
Chauhan, learned counsel for the respondents.
13. Having heard the learned counsel for the
parties and on perusal of the record of the case
including the written submissions filed by the
parties, we are inclined to allow these appeals and
while setting aside the impugned order and the
order of the Single Judge dated 28.07.2016, remand
the case to the Single Judge for deciding the issue
in question afresh in accordance with law as
directed hereinbelow.
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14. The question arose as far back as in the year
1932 before the Calcutta High Court in the case of
Secretary of State vs. Golabrai Paliram (AIR 1932
Calcutta 146) as to how the Court should approach
the application for revocation of leave when it filed
in a civil suit.
15. Justice Rankin, learned the then Chief
Justice, laid down the following principle of law in
the case while answering this question in the
following words at page 147:
“I do really protest against questions of
difficulty and importance being dealt with by
an application to revoke the leave under
clause 12 of the Letters Patent and to take
the plaint off the file. Normally it is well
settled that the proper way to plead to the
jurisdiction of the court is to take the plea in
the written statement and as a substantive
part of the defence. Except in the clearest
cases that should be the course.”
16. This question came up for consideration before
this Court in
Indian Mineral & Chemicals Co. &
Ors. vs. Deutsche Bank [(2004) 12 SCC 376]. The
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learned Judge Ruma Paul J. speaking for the Bench
in Para 15 approved the law laid down in Secretary
(supra) as laying down the correct principle
of State
of law and observed as under:
“15. The observations of Rankin, C.J. in
Secy. of State v. Golabrai Paliram correctly
represents the law as to how the Court
should approach an application for
revocation of leave: (AIR p. 147)
“I do really protest against questions of
difficulty and importance being dealt
with by an application to revoke the
leave under clause 12 of the Letters
Patent and to take the plaint off the
file. Normally it is well settled that the
proper way to plead to the jurisdiction
of the court is to take the plea in the
written statement and as a substantive
part of the defence. Except in the
clearest cases that should be the
course.”
17. In other words, the law laid down in Secretary
of State (supra) by the Calcutta High Court is now
the law laid down by this Court in view of its
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affirmation by this Court in
Indian Mineral &
Chemicals Co . (supra).
18. Coming now to the facts of this case, since in
this case the respondents did not file any written
statement and instead raised the plea of territorial
jurisdiction by filing the application for revocation of
leave, in our view, the High Court should not have
entertained the said application and instead should
have granted liberty to the respondents(defendants)
to file the written statement in the suit and to raise
therein a plea of territorial jurisdiction of the Court.
19. An issue of such nature, in our view, cannot
be tried by filing an application for revocation of
leave. Indeed, this is what Rankin, the then CJ.,
held for the Bench in Secretary of State (supra)
and which received approval of this Court in Indian
Mineral & Chemicals Co. (supra).
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20. In our opinion, a plea of territorial jurisdiction
is essentially a mixed question of law and fact. It is
for this reason, the respondents(defendants) should
be allowed to raise such plea in the written
statement to enable the Court to try it on its merits
in accordance with law in the light of the
requirements of Order 14 of the Code of Civil
Procedure, 1908 and other relevant provisions
governing the issue on merits.
21. Learned counsel for the respondents cited
several decisions in support of his submissions.
Having gone through them, we are of the opinion
that these decisions are distinguishable in the light
of the law laid down by this Court in Indian
(supra).
Mineral & Chemicals Co.
22. In the light of the foregoing discussion, we
allow the appeals, set aside the impugned orders as
also the order of the Single Judge dated 28.07.2016
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and while dismissing the application filed by the
respondents (defendants) for revocation of grant of
leave, grant liberty to them to file their written
statement in answer to the plaint and raise therein
the plea in question along with all other pleas
relating to the facts and law as the case may be.
23. On such written statement being filed, the
Single Judge will frame appropriate issues arising in
the suit and proceed to answer them in accordance
with law keeping in view the procedure laid down in
Order 14 of the Code of Civil Procedure.
24. We, however, make it clear that we have not
expressed any opinion on the merits of the
controversy having formed an opinion to remand
the case to the Single Judge for deciding the issue
afresh as directed above.
25. The Single Judge of the High Court will
accordingly decide the issue strictly in accordance
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with law on its merits without being influenced by
any observations made by him, the Division Bench
in the impugned order and this Court.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHEHSWARI]
New Delhi;
March 07, 2019
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