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1990 Supreme(Gau) 143
GAUHATI HIGH COURT
Manisana, J.
Bijoy Kumar Chakraborty -Appellant
Versus
State of Tripura & Another -Respondent
Civil Revision No. 26 of 1990
Decided On : 16-07-1990
K.N.Bhattacherjee, M.K.Dutta, P.Dutta
The main legal point established in the judgment is that a Civil Court cannot decide its jurisdiction to try a suit in an interlocutory proceeding.
Headnote:
Jurisdiction - Civil Court - The court held that a Civil Court cannot decide its jurisdiction to try a suit in an interlocutory proceeding. The jurisdiction does not depend upon the defense taken in the written statement. The question of jurisdiction to try a suit by the Civil Court is to be decided in the suit itself.
Fact of the Case:
The plaintiff filed an application for temporary injunction under Order 39, CPC, which was rejected by the learned Munsiff. The order was appealed to the District Judge, who dismissed the appeal. The reason for refusal of injunction by the courts below was that the Civil Court has no jurisdiction to try the suit as per the provisions of the Tripura Public Premises (Eviction of Unauthorized Occupants) Act, 1982.
Finding of the Court:
The court found that the courts below could not decide the question of jurisdiction to try the suit while refusing to grant interlocutory prohibitory injunction. The orders of the courts below were set aside, and the case was sent back to the learned Munsiff for decision on the question of jurisdiction to try the suit afresh.
Issues: The main issue was whether a Civil Court can decide its jurisdiction to try a suit in an interlocutory proceeding.
Ratio Decidendi: The court held that the jurisdiction of the Civil Court does not depend upon the defense taken in the written statement, and the question of jurisdiction to try a suit by the Civil Court is to be decided in the suit itself.
Final Decision: The order of the Court below was set aside, and the case was sent back to the learned Munsiff for decision on the question of jurisdiction to try the suit afresh. The petitioner was not to be evicted by force.
2. In Title Suit No 19 of 1989, the plaintiff filed an application for temporary injunction under Order 39, CPC. The learned Munsiff rejected the petition. The order was appealed to the District Judge. The learned District Judge dismissed the appeal. Hence this petition'.
3. The reason for refusal of injunction by the courts below' that, under section 9, CPC the Civil Court has no jurisdiction to try the suit, as cognizance the suit is expressly barred by the provisions of the Tripura Public Premises (Eviction of Un authorized Occupants) Act, 1982. The Courts below have decided the question as to the jurisdiction of the Civil Court to try the suit in' an interlocutory matter.
4. The question which arises for consideration is whether a Civil Court can decide its jurisdiction to try a suit in an interlocutory proceeding. It settled that allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken in the written statement. If any authority is required, I may refer to Abdul I a Bin Ali vs. Galappa AIR 1985 SC 577. When a Court decides that it has no jurisdiction to try a suit, any order passed in the suitor interlocutory proceeding is of no consequence, i.e. after coming to the conclusion that it had no jurisdiction to try the suit, it cannot decide any question affecting right or interest of any party either in the suit or interlocutory proceeding. That apart, if the Court decides its jurisdiction to try the suit in an interlocutory or collateral proceeding, it would affect the ma interminability of the suit which was not before it legally for decision on tin question of maintainability under section 9, CPC. Therefore, a collateral or interlocutory proceeding the Court cannot decide the question of jurisdiction to try a suit by the Civil Court. It is to be decided in the suit itself.
5. In view of the above discussion the courts below could not decide the question of jurisdiction to try the suit while refusing to can not interlocutory prohibitory injunction. Therefore, the orders of the courts below are liable to be set aside.
6. For the foregoing reasons, the order of the Court below arc set aside and the case is sent back to the learned Munsiff Udaipur for decision on the question of jurisdiction to try the suit afresh untrammeled by the observations made by the learned District Judge within a period of one month from the receipt of this order. However, the petitioner Sri Bijoy Kumar Chakraborty shall not be evicted by force.
With the above observation and direction, the petition is allowed and disposed of No cost.
