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1999 Supreme(Bom) 908
IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Manubhai Vadilal Shah..... Plaintiff.
Versus
Hiralal Karsondas Bhakta others..... Defendant.
Chamber Summons No. 1266 of 1998 in Suit No. 605 of 1997, decided on 3-12-1999.
Advocates appeared :
N.H. Shukla, for plaintiff to show cause.
Milind Sakhardande with G.R. Rege with Mrs. S. Mudbidri, for defendant No. 1 in support of Chamber Summons.
N.J. Devashrayee, for defendant Nos. 3 to 15.
Headnote:Section 9-A-Decision of jurisdiction-In case a party challenges jurisdiction of the Court, the litigation must not proceed any more without deciding this issue otherwise it would be a wasteful of time for the Court to decide with other issues. It would be immaterial and irrelevant after a lapse of two years and taking benefits of the orders by the parties so far as the question of jurisdiction is concerned.-If a party challenges jurisdiction of this Court and unless that question is decided, it will be wasteful of the time for the Court if it embarks upon to decide other issues raised in the case. If the litigations are to proceed with without deciding jurisdictional issue and after lapse of years, at the fag end of the litigation if that question is taken up and objection is upheld, the entire time and energy of the Court and litigants spent on such suit will become wasteful. Therefore, if the jurisdictional question is raised that has to be decided first. In the circumstances, the lapse of two years, and taking benefits of the orders by the parties, is quite immaterial and irrelevant as far as the deciding the question of jurisdiction which is called upon to decide by this Court is concerned.
Order VI, Rule 17-Amendment of pleadings-Where ever the Court finds that it has no territorial jurisdiction, it cannot entertain the amendment of pleadings by the Plaintiff at the commencement of the suit.- The Division Bench of Calcutta High Court in Rohima Bye and others v. Hadjee Mahomed Hadjee Josub, reported in 13 Bengal Law Reporter 91 held that if there are several defendants to the suit, it is not sufficient that one of the defendants should dwell or carryon the business within the jurisdiction. It is to be noted here specifica1ly that leave of this Court applicable only where part of cause of actiQn arises within the local limits of the jurisdiction of this Court. In all other three situations leave is not provided. In substance, if the land situated outside, and the some of the defendants also reside outside, the said deficiency cannot be made up with grant of leave by this Court. Likewise, where whole of the cause of action arises within the limits of the Court, leave is not required. In the light of the legal position, grant of leave by this Court, therefore, will not confer jurisdiction on this Court to entertain the suit on the facts disclosed herein. Section 20 of the Code of Civil Procedure envisages a situation where some of the defendants reside outside the jurisdiction of this Court, leave of the Court can be sought. But Section 120 of the Code of Civil Procedure will not come to the rescue of the plaintiff because under Section 120 of. Code of Civil Procedure, Sections 16, 17 and 20 of the Code of Civil Procedure are excluded in its applications to the original jurisdiction of this Court.
Examining in all aspects of the case, I find that this Court has no jurisdiction to entertain the suit. Leave granted by this Court has to be revoked because no part of cause of action arises in this case. Nor all the defendants reside within the limits of this Court also.
Section Evidence-If 92-Documentary the pleadings are country to and inconsistent with the documents produced by the plaintiff, he cannot adduce oral evidence to disprove the documentary evidence as is clear from Section 92 of the Act, 1872.- The recital of the agreement and the pleadings stated in Paragraph 34 is quite clear. According to learned counsel for the applicant, leave under Clause XII has been obtained from this court by playing a fraud on this court by suppressing material facts To this allegation the reply of the counsel of the Plaintiff is that there is a lacuna and he can at any time rectify that lacuna by amending the pleadings and also by adducing the evidence. The contention of the learned counsel for the plaintiff, cannot be countenanced to because the court gets jurisdiction, particularly territorial, on the basis of the pleadings to which we are concerned here. If the pleadings are contrary to and inconsistent with the document which was produced by the Plaintiff. Plaintiff can not adduce oral evidence to disprove the documentary evidence. This is clear from the principle laid down by the Section 92 of the Indian Evidence Act. The learned counsel for the applicant is therefore, justified in alleging that the leave under Clause XII has been obtained by suppressing the material facts hon1 this court. The learned counsel for the Plaintiff in the above paragraph, relied upon their pleadings to clothe this court with jurisdiction and state that the material part of cause of action arose within the jurisdiction of this court, when at the Same time the document which was produced in support of the pleadings shows otherwise. Therefore, Court has no hesitation to support the view of the counsel for the Applicant that the leave was obtained by misleading the court without drawing its attention to the documents
"At the outset, I say that this Hon'ble Court has no jurisdiction to try and entertain the suit. The plaintiff has his official address at Sheetal Park, Sheetal Nagar, Mira Road, District Thane. The suit property is situated within the District of Thane. The suit agreements are entered into within the District of Thane and except the defendant No. 1, all the other defendants reside at Thane and within the District of Thane. The suit for specific performance is thus not maintainable in this Hon'ble Court and the same is liable to be dismissed and be accordingly dismissed."
2.He says that the suit is not maintainable in this Court as none of the ingredients required to be fulfilled under Clause XII of the Letters Patent are satisfied and the leave of this Court is obtained by suppressing material facts from this Court. The learned Counsel for the applicant, Mr. Sakhardande has contended that since the first defendant has raised the question of territorial jurisdiction at the first instance, it is incumbent upon this Court to decide that question first before proceeding further. The learned Counsel for the plaintiff Mr. Shukla has however, contended that the suit has been filed as early as 1997 and several orders have been passed by this Court and parties have taken benefits under those orders. In this circumstances, the first defendant, cannot at this stage raise this question of jurisdiction. According to me, this is not proper answer to the question raised by defendant No. 1 in his Chamber Summons. Whenever a jurisdictional question particularly of territorial raised that has to be decided first before proceeding the matter any further. This is a part of public policy and to achieve this objective, section 9-A of the Civil Procedure Code has been introduced. Section 9-A of the Code of Civil Procedure which is specifically brought into force in State of Maharashtra postulates that if in any suit jurisdictional question is arising no interim application can be considered before the jurisdiction question is decided. Section 9-A of the Code of Civil Procedure reads as under:
"(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of suit."
3.The legislative intention behind this section is quite obvious. If a party challenges jurisdiction
