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IN THE HIGH COURT OF BOMBAY
(ORIGINAL SIDE)
Y.K. Sabharwal C.J. S.H. Kapadia, J.
I.C.I.C.I. Limited Appellants.
Versus
Sri Durga Bansal Fertilizers Ltd. others..... Respondents.
Appeal No. 336 of 1999 in Chambers Summons No. 1167 of 1998 in Suit No. 4060 of 1998,
decided on 17-6-1999.
Advocates appeared :
Virag Tulzapurkar with Satish Shetye i/b Amarchand Mangaldas Suresh A. Shroff Co., for the appellants.
Manish Desai i/b C.R. Naidu Co., for respondent No. 1.
Sections 9-A and 9-A(2)-Letters Patent, clause 12-Question of territorial jurisdiction-Court first examined this question for deciding leave application to file suit-Then again going to examine when that question raised by defendant under Section 9-A for granting interim relief-Held, such examination of same questif.1n twice attract multiplicity of proceedings and thus not permissible.-When question about the territorial jurisdiction is raised either in an application seeking revocation of leave under clause (xii) of the Letters Patent or on an application under Section 9-A of the Code of Civil Procedure, the appropriate procedure to follow is to finally decide the said question by giving opportunity to the parties, if facts and circumstances of the case of require, to lead evidence. Such a course would avoid multiplicity of proceedings and would also be in consonance with the provisions of Section 9-A and or Order XIV; Rule 2 of the Code of Civil Procedure and clause (xii) of the Letters Patent. It would also avoid examination of the same question twice over. It is, however, a different matter if the parties agree that for all purposes, the question of jurisdiction may be decided only prima facie and that it should be left to be finally determined at the trial of the suit along with the other issues on merits. As already noticed, in the present case, such a concession was not forthcoming from the Defendants.
Clause 12-Question of jurisdiction examined prima facie for deciding leave application-Single Judge while concluding that Chamber Summons for revocation to be devoid of merits holding that it cannot positively be held that the Bombay High Court had no jurisdiction-In appeal by plaintiff impugned order modified to extent it granted leave to the defendants to raise objection under Section 9-A of the Code of Civil Procedure-Instead, the Single Judge to decide afresh the question of jurisdiction finally.
Clause XII-Civil Procedure Code 1908, Section 9-A and Order XIV, Rule 2-Question of territorial jurisdiction raised-As primary objection-Held appropriate procedure is to decide such question finally first would avoid multiplicity of proceedings and in consonance with Section 9-A and order XIV Rule 2 of CPC as well as clause XII of Letters Patent.-Under these circumstances, Court is of the considered view that when question about the territorial jurisdiction is raised either in an application seeking revocation of leave under Clause XII of the Letters Patent or on an application under Section 9-A of the Code of Civil Procedure, the appropriate procedure to follow is to finally decide the said question by giving opportunity to the parties, if facts and circumstances of the case so require to lead evidence. Such a course would avoid multiplicity of proceedings and would also be in consonance with the provisions of Section 9-A and/or Order XIV, Rule 2 of the Code of Civil Procedure and Clause XII of the Letters Patent. It would also avoid examination of the same question twice over. It is, however, a different matter if the parties agree that for all the purposes, the question of jurisdiction may be decided only prima facie and that it should be left to be finally determined at the trial of the suit along with the other issues on merits. As already noticed, in the present case, such a concession was not forthcoming from the Defendants.
2.The learned Counsel for respondent No. 1 waives service. Service on other respondents is not necessary for deciding the controversy which is the subject matter of this Appeal.
3.With the consent of the learned Counsel for the parties, after hearing their submissions, we proceed to finally decide the Appeal.
4. The appellants are the original plaintiffs. They were granted leave to institute the suit in this Court under Clause XII of the Letters Patent in respect of the cause of action which had not arisen within the territorial jurisdiction of this Court. Respondent No. 1 filed Chamber Summons seeking revocation of leave granted under Clause XII of the Letters Patent on the ground that no part of the cause of action has arisen within the jurisdiction of this Court. The Chamber Summons has been dismissed, inter alia, holding that it cannot positively be held that the Bombay High Court has no jurisdiction. On this finding, the Chamber Summons for revocation has been found to be devoid of merits. The learned Single Judge has, however, clarified that the observations made in the impugned order are prima facie and only for the purpose of considering the application for revocation of leave and further, the defendants will be at liberty to take necessary objection under section 9-A of the Code of Civil Procedure and all rights and contentions will be open to the defendants.
4A.The original plaintiffs is in Appeal before us, aggrieved, of course not by the dismissal of the Chamber Summons, but by the liberty as aforesaid granted to the defendants.
5.It is contended that in view of the liberty granted, there will be a second round of arguments on the question of jurisdiction when such an objection is taken by the defendants under section 9-A of the Code of Civil Procedure.
6.On being specifically asked as to whether the respondents are in a position to make a statement that they will not raise objection under section 9-A of the Code of Civil Procedure by filing an application and if advised, would take such an objection in the written statement to be tried along with the other issues on merits, the learned Counsel for the respondents states that it is not possible to make such a statement or also to state that objection as to jurisdiction will not be raised as a defence to grant interim relief.
7.The stage at which the objection raised under section 9-A of the Code of Civil Procedure is to be considered stands concluded by a Division Bench judgment of this Court in (Meher Singh v. Deepak Swhny another)1, reported in 1999(1) Bom.C.R. 107. It has been held that section 9-A has been added to see that issue of jurisdiction is decided as a preliminary issue notwithstanding anything contained in the Code of Civil Procedure, including Order XIV, Rule 2. The Court had further held that once the issue is to be decided by raising it as a preliminary issue, it is required to be determined after proper adjudication. Adjudication would require giving of opportunity to the parties to lead evidence, if required.
8.Having bestowed our thoughtful consideration to the submissions made by the learned Counsel for the parties, we agree with the contention urged on behalf of the appellants that the course adopted by granting liberty as aforesaid would result in the repetitive examination of the same question and would result in multiplicity of proceedings and consequently delay in the disposal of the suit.
9.Seen in the light of the facts of the present case, firstly, the question of jurisdiction has been examined though, prima facie, for deciding the leave application. It will again be required to be examined when question of jurisdiction is raised under section 9-A by the defendants. It has thus been rightly contended on behalf of the appellants that in view of section 9-A, albeit, the application for grant of interim relief would not be disposed of till decision on the question of jurisdiction although ad-i
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