Full Judgment Text
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PETITIONER:
KOOPILAN UNEEN’S DAUGHTER PATHUMMA & ORS.
Vs.
RESPONDENT:
KOOPILAN UNEEN’S SON KUNTALAN KUTTY DEAD BY LRS. & ORS,
DATE OF JUDGMENT06/08/1981
BENCH:
KOSHAL, A.D.
BENCH:
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
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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]
JUDGMENT:
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
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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 despatched to the
High Court. There will be no order as to costs.
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S.R. Appeal allowed.
187