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High Court Of Orissa
PRADIPTA RAY
PUJAPANDA NIJOG OF LORD JAGANNATH TEMPLE - Appellant
Versus
PRATIHARI NIJOG - Respondent
Civil Revision 21 Of 1995
Decided On : 01/12/1998
CIVIL PROCEDURE CODE - SECTION 21 - OBJECTION TO JURISDICTION - JURISDICTIONAL DEFECT - TERRITORIAL, PECUNIARY OR SUBJECT MATTER - OBJECTION TO JURISDICTION TO BE RAISED AT THE EARLIEST OPPORTUNITY - FAILURE TO RAISE OBJECTION - ESTOPPEL - FORUM OF APPEAL - CHANGE OF FORUM - VESTED RIGHT - SUBSTANTIVE RIGHT - RETROSPECTIVE EFFECT - APPEAL TO BE FILED IN THE FORUM PROVIDED FOR BY THE REPEALING ACT.
Fact of the Case:
Petitioner filed a suit in the Court of the Subordinate Judge, Puri against the opp. parties. An application under Order 39, Rules 1 and 2 of the Civil Procedure Code was filed and allowed in part by the trial Court, restraining the opp. parties from receiving dry bhog from the pilgrims and other devotees on the pretext of offering the same to the deities. Opp. parties filed an appeal in the Court of District Judge, Puri. By judgment and order, the District Judge passed an order restraining the defendants from interfering with the plaintiff's right to offer dry bhog before deities in the main temple of Lord Jagannath by collecting such bhog from the devotees in their office premises. Petitioner filed a revision against the said appellate order modifying the interim order passed by the trial Court.
Finding of the Court:
1. Objection to jurisdiction should be raised at the earliest opportunity and failure to do so may result in estoppel. 2. Forum of appeal is a matter of procedure and change of forum has no relation or connection with the substantive right of appeal. 3. Right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. 4. A subsequent enactment can take away the vested right of appeal only if it so provides expressly or by necessary intendment and not otherwise.
Issues: 1. Whether the petitioner is estopped from raising an objection regarding absence of pecuniary jurisdiction in the facts and circumstances of the case? 2. Whether the forum of appeal is a matter of procedure and change of forum has no relation or connection with the substantive right of appeal?
Ratio Decidendi: 1. The petitioner is estopped from raising an objection regarding absence of pecuniary jurisdiction in the facts and circumstances of the case as no objection was raised by the petitioner before the District Court, the appeal was allowed to be heard and disposed of on merits, and the objection relating to jurisdiction has been raised in this Court only because the order of the District Court went against the petitioner in part. 2. The forum of appeal is a matter of procedure and change of forum has no relation or connection with the substantive right of appeal. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
Final Decision: Revision allowed. No order as to costs.
PRADIPTA RAY, J.
( 1 ) THE present petitioner as plaintiff filed O. S. No. 12/80-I in the Court of the Subordinate Judge, Puri against the opp. parties. The suit was filed on March 18, 1980 and was valued at Rs. 7,710/ -. In the said suit petitioner filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code which was registered as Misc. Case No. 103 of 1981. By judgment and order dated October 8, 1985 the trial Court allowed the said application in part and restrained the opp. parties from receiving dry bhog from the pilgrims and other devotees on the pretext of offering the same to the deities. The trial Court, however, refused to prohibit payment of Dakshina to the opp. parties. Against the said interim order present opp. parties 1 and 2 filed Misc. Appeal No. 70/98 of 1985/86 in the Court of District Judge, Puri. By judgment and order dated November 4, 1994 Second Additional District Judge, Puri passed the following order :"the defendants 1 to 4 (a) in T. S. 12/80-I of the Court of Subordinate Judge, Puri are restrained from interfering with the plaintiff's right to offer dry bhog before deities in the main temple of Lord Jagannath by collecting such bhog from the devotees in their office premises till the disposal of the suit. "plaintiff has filed this revision against the aforesaid appellate order modifying the interim order passed by the trial Court.
( 2 ) IN this revision Mr. R. K. Mohapatra, Senior Advocate appearing for the petitioner raised an objection that the appeal against the interim order passed by the trial Court in the present suit lay before the High Court and not to the District Court. According to him, the forum of appeal was to be determined on the basis of the position as prevailed on the date of institution of the suit. He pointed out that on March 18, 1980 when the suit was instituted District Court's appellate jurisdiction was limited to orders and decrees passed by the Subordinate Judge in suits valued up to Rs. 5,000/ -.
( 3 ) ON the date of institution of the suit (March 18, 1980) Bengal, Agra, Assam Civil Courts Act, 1887 was operative. Under the provisions of the said Act an appeal against any order or decree passed by the Subordinate Judge in suits valued at more than Rs. 5000/- lay before the High Court. Orissa Civil Courts Act, 1984 was enacted and brought into force from January 1, 1985. Under Section 16 of the Orissa Civil Courts Act District Court's appellate jurisdiction was extended to orders and decrees passed by the Subordinate Judges in original suits valued up to Rs. 20,000/ -. In the present case Misc. Appeal was filed in the Court of the District Judge presumably because of the provisions of the Orissa Civil Courts Act. After a contested hearing the Addl. District Judge disposed of the Misc. Appeal on November 4, 1994. Present petitioner did not raise any objection to the jurisdiction of the District Court to entertain or dispose of the appeal although the said appeal was pending for about 9 years. For the first time the objection relating to jurisdiction to entertain the Misc. Appeal has been raised in this revision application.
( 4 ) BEFORE dealing with the main question raised on behalf of the petitioner it should be considered whether such objection can be permitted to be raised for the first time in revision before this Court in view of the provisions of Section 21 of the Civil Procedure Code, even if it is assumed that the District Court had no pecuniary jurisdiction to entertain the appeal.
( 5 ) AS already pointed out no objection was raised by the petitioner before the District Court. The appeal was allowed to be heard and disposed of on merits. The objection relating to jurisdiction has been raised in this Court only because the order of the District Court went against the petitioner in part.
( 6 ) A defect of jurisdiction may be territorial, pecuniary or in respect of the subject-matter of the action. It is settled that under the general principle
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