B. S. I. Ltd. . vs M. V. Cristian-C and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 232

IN THE HIGH COURT OF BOMBAY
(A. V.A.J.)
D.G. Deshpande, J.
B.S.I. Limited Plaintiffs.
Versus
m.v. Cristian-C others..... Defendants.
Notice of Motion No. 2599 of 1996 in Admiralty Suit No. 53 of 1995, decided on 23-3-1999.
Advocates appeared :
Amrut Vernekar with Dasgupta i/b. Narichania Narichania, for the plaintiffs.
Venketshawaran with K.R. Shriram, for the defendants.

Headnote:Section 9-A and Order VII, Rule 11 and Order XV; Rule 1-Jurisdiction-Preliminary objection application of plaintiff for interim or ad interim relief-Stage of rejection of plaint under Order VII, Rule 11 being preliminary stage when plaint was filed and was subjected to scrutiny This provision not to be invoked after defendants appeared and were required to file written statement as directed by Court-Held, question of jurisdiction cannot be raised on preliminary issue by defendents. Counsel for the plaintiffs raised preliminary objection to the tenability of this notice of motion, firstly, on the ground that there were directions of this Court to the defendant Nos. 1 and 2 to file their written statement and until and unless these. directions were complied with and written statement was filed, the defendant Nos. 1 and 2 had no right to raise objection to jurisdiction by taking out the present notice of motion (such a direction is given by Justice Rane on 14.2.1996 and defendant Nos. 1 and 2 were directed to file the written statement adjourned to 6.6.1996 with warning that no adjournment on this ground will be granted). Secondly, it was contended by the plaintiffs Advocate that objection could be raised only under Section 9-A of the CPC if the plaintiffs apply for any interim or ad interim reliefs and or under Order VII, Rule 11 of CPC where the Court could reject a plaint on the ground that it did not disclose any cause of action or that the suit being barred by the provisions of any law. According to the plaintiff is Advocate, stage of rejection of plaint under Order VII, Rule 11 was preliminary stage when the plaint was filed and was subjected to scrutiny and these provisions could not be invoked after the defendants appear and matter adjourned for filing written statement.
       The stage of first hearing of the suit is after filing of the written statement and before framing of the issues. Consequently, Order XV, Rule 1 has no application in this case as a result the only stage of raising objection to jurisdiction, if the matter does not come under Section 9-A of the CPC is by filing written statement and raising the objection therein. If there is a direction of the Court to the written statement, then the defendants cannot raise an objection to jurisdiction by taking out a notice of motion as has been done in the present case. It and when the defendants file written statement and raise an objection to jurisdiction then the issue will have to be framed on that point. The defendants will have to convince the Court that the said issue has to be decided as a preliminary issue and if that is done by the Court, then only the objection to jurisdiction can be decided.
       Section 9-A and Order VIII, Rule 1- If the matter does not come under Section 9-A of Civil Procedure Code the only option available to the defendant is to file written statement and arise objection regarding jurisdiction therein.- The only stage of raising objection to jurisdiction, if the matter does not come under Section 9-A of the Civil Procedure Code is by filing written statement and raising the objection therein. If there is a direction of the Court to file written statement, then the defendants cannot raise an objection to jurisdiction by taking out a notice of motion.
       Order VIII, Rule 1 and Order XIV, Rule 1-Objection regarding jurisdiction of the Court-Once the stage of filing written statement is reached only option available to the defendant is to file written statement raising therein objection regarding jurisdiction-There is no other stage which gives right to defendant to take objection to the jurisdiction of the Court. - When the stage of filing written statement has been reached, then the only option available to the defendants is to file their written statement raising therein their objection regarding jurisdiction. There is no other stage which gives a right to defendants to take out notice of motion taking objection to jurisdiction. Such an objection can only be raised in the written statement and if such an objection is raised then the Court can at the time of framing issues under Order XIV of the Civil Procedure Code which empowers the Court to frame and decide the issues relating to the jurisdiction of the Court or relating to a bar to the suit created by the law for the time being in force as a preliminary issue.
       Order XI- Rule 1(5)- The stage of first hearing of the suit is after filing of the written statement and before framing of the issues.
       Order XIV, Rule 1, Order XV, Rule 1 and Sections 21 and 9-A (Maharashtra)-Objection as to jurisdiction of court-Stage for filing by defendant-Held, defendant can file such objection only at stage of filing written statement. - When the stage of filing written statement has been reached then the only option available to the defendants is to file their written statement raising therein their objection regarding jurisdiction. There is no other stage which gives a right to defendants to take out notice of motion taking objection to jurisdiction. Such an objection can only be raised only now in the written statement and if such an objection is raised then the Court can at the time of framing of issues under Order XIV of CPC which empowers the Court to frame and decide the issues relating to the jurisdiction of the Court or relating to a bar to the suit created by the law for the time being in force as a preliminary issues. But if the Court decides otherwise even these issues can be decided simultaneously along with the other issues framed in the suit.

JUDGMENT - D.G. DESHPANDE, J.:---This the defendants notice of motion for dismissal of the suit for want of jurisdiction as against the defendant Nos. 1 and 2 on the ground that on the date when the suit was filed i.e. on 21-8-1995 or 11-9-1995 the defendant No. 1 ship m.v. "CRISTIAN-C" was not in Indian waters and since the action against the defendant No. 1 is the action in rem and since the ship was not in Indian waters at the time of filing of the suit, this Court has no jurisdiction to entertain and try the suit. It was also contended that so far as the defendant No. 2 is concerned, they did not carry on business within the jurisdiction of this Court.

2.Counsel for the plaintiffs raised preliminary objection to the tenability of this notice of motion, firstly, on the ground that there were directions of this Court to the defendant Nos. 1 and 2 to file their written statement and unit and unless these directions were complied with and written statement was filed, the defendant Nos. 1 and 2 had no right to raise objection to jurisdiction by taking out the present notice of motion (such a direction is given by Justice Rane on 14-2-1996 and defendant Nos. 1 and 2 were directed to file the written statement, adjourned to 6-6-1996 with warning that no adjournment on this ground will be granted) . Secondly it was contended by the plaintiffs advocate that objection to jurisdiction as a preliminary objection could be raised only under section 9-A of the C.P.C if the plaintiffs apply for any interim or ad-interim reliefs and/or under Order VII, Rule 11 or C.P.C. where the Court could reject a plaint on the ground that it did not disclose any clause of action or that the suit being barred by the provisions of any law. According to the plaintiffs advocate, stage of rejection of plaint under Order VII, Rule 11 was a preliminary stage when the plaint was filed and was subjected to scrutiny and these provisions could not be invoked after the defendants appear and matter adjourned for filling written statement, therefore, on this ground the Counsel for the plaintiffs contended that the notice of motion was not tenable and the defendant Nos. 1 and 2 were required to be directed to file the written statement.

3.As against this, it was contended by the defendants advocate that if on the face of the pleadings of the plaintiffs the defendants could successfully show that the present suit could not be entertained by the Court for lack of jurisdiction then nothing prevented the defendants from raising an objection regarding jurisdiction and in taking out notice of motion for that purpose. Counsel for the defendants made submissions on merits regarding the prayers in the notice of motion.

4.I find that the objection raised by the plaintiffs to the tenability of the notice of motion is well founded, firstly, because there is an order of Justice Rane referred to above calling upon the defendants No. 1 and 2 to file the written statement. The record and proceedings also show that even thereafter defendants sought time for filing written statement. Secondly, this is not a case where the plaintiffs have claimed any interim or ad interim relief and at that time the defendants have raised preliminary objection to jurisdiction under section 9-A of the C.P.C. If that had been the case then the Court would have been required to decide the said objection on merits. Thirdly, this is not a stage of invoking the provisions of Order VII, Rule 11 of C.P.C. which empowers the Court to reject the plaint, that stage has already gone. The defendants have been served with writ of summons and had appeared and had been ordered by the Court to file written statement.

5.Therefore, when the stage of filing written statement has been reached, then the only option available to the defendants is to file their written statement raising therein their objection regarding jurisdiction. There is no other stage which gives a right to defendants to take out notice of m

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