The objection against the place of suing cannot be entertained at the appellate stage as per Section 21(1) of the Code of Civil Procedure.

R. R. K. TRIVEDI, J.

( 1 ) IN this writ petition, learned Standing Counsel has accepted notices for respondents Nos. 1 to 3. Both the learned counsel have agreed that the writ petition may be decided finally at this stage. Considering facts of the case learned Standing Counsel has not been required to file a counter affidavit and the writ petition is disposed of finally on the material already on the record.

( 2 ) FACTS giving rise to this writ petition are that petitioner Prem Kumar Peters was serving as a Judicial Assistant in the Office of Collectorate, Kanpur Dehat. Petitioner filed Original Suit No. 155 of 1990 in the Court of Munsif, Kanpur Dehat for the declaration, against respondent No. 2 that his date of birth is 19/01/1939 and the date of birth mentioned in the High School Certificate as 19-1-1933 is incorrect. The relief of mandatory injunction was also sought directing Board of High School and Intermediate Education, U. P. Allahabad, (hereinafter to be referred as board), to correct his High School Certificate accordingly. It is relevant to mention here that the plaint contained a specific averment that no relief is being sought against State of Uttar Pradesh (i. e. defendant No. 2 ). It was further stated in para 4 of the plaint that as Board, defendant No. 1 is a department of the State (defendant No. 2), hence to avoid any complication State is also being made party.

( 3 ) THE suit was decreed ex parte on 11/10/1990. An application was filed by Board on 1/01/1991 for setting aside the ex parte decree, which was supported by an affidavit. The application was, however, rejected by the trial Court vide its order dated 30/05/1991. Aggrieved by the aforesaid order Board, respondent No. 2 filed an appeal. The appellate Court decided the appeal vide its order dated 12/02/1993 and plaint of the suit was directed to be returned for being presented before competent court. The appellate Court took the view that cause of action for suit of petitioner arose within the areas falling under Kanpur City and suit was wrongly filed in Court of Munsif, Kanpur Dehat and for this reason the decree dated 11-10-1990 and order dated 30-5-1991 will have no effect being without jurisdiction. Aggrieved by the aforesaid order of the appellate authority this writ petition has been filed under Art. 226 of the Constitution before this Court.

( 4 ) I have heard learned counsel for the petitioner and learned Standing Counsel.

( 5 ) LEARNED counsel for the petitioner has submitted that the appeal before the appellate Court was from the order rejecting the application under O. 9, R. 13, C. P. C. and the appellate Court should have confined itself to judge the correctness of the order impugned in appeal and the appellate Court was not justified in entering into the question of jurisdiction of the Court below in entertaining the suit itself for setting aside the decree. Learned counsel for the petitioner has submitted that the view taken by the appellate Court on the question of jurisdiction is also incorrect as from the averment in the plaint and the relief sought, cause of action was against respondent No. 2 and against which the suit could be filed before the Court of Kanpur Dehat also. Learned counsel for the petitioner has further submitted that the petitioner was serving in district Kanpur Dehat and the notice under S. 80, C. P. C. was sent to the State of Uttar Pradesh and other authorities in that district and considering all these facts and circumstances part of cause of action had arisen at Kanpur Dehat also and suit was rightly filed before the Munsif, Kanpur Dehat. Learned counsel for the petitioner has thirdly submitted that the appellate authority has not considered the order passed by the learned Munsif, Kanpur Dehat rejecting the application under O. 9, R. 13, C. P. C. on merits and has illegally reversed the order and directed to return the plaint only on its finding on question of jurisdiction.

( 6 ) LEARNED Standing Counsel, on th

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