Partly allowed

M/S Samrat Feeds Pvt. Ltd., v. Shri. Ireneu Gonsalves

Karnataka HC13 Dec 2024RSA/100524/2017

Case brief

AI extract

What is this about?

The High Court at Dharwad Bench allowed a Regular Second Appeal against the dismissal of a civil suit on territorial jurisdiction grounds. Holding that the defendant suffered no failure of justice by participating in the trial proceedings, the Court remitted the appeal to the First Appellate Court for fresh consideration on merits without expressing an opinion on the trial court's decision.

What did the court decide?

Appeal allowed; impugned judgment set aside; Regular Appeal remitted to First Appellate Court for consideration on merits; Court fee refunded.

M/S Samrat Feeds Pvt. Ltd., Vs Shri. Ireneu… — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR SECOND APPEAL NO. 100524 OF 2017 (-)

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BETWEEN:

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M/S. SAMRAT FEEDS PVT LTD., REPRESENTED BY ITS DIRECTOR SHRI. DEEPAK DHARAMSHI BHADRA, AGE: 43 YEARS, OCC: BUSINESS, R/O: 168/36, TAHSILDAR GALLI, BELAGAVI. (BY SRI. SANGRAM S. KULKARNI AND SRI. ADITYA A. MAGADUM, ADVOCATES)

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…APPELLANT

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AND:

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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SHRI. IRENEU GONSALVES S/O. LATE. JOAO SIMAO GONSALVES, AGE: 60 YEARS, OCC: BUSINESS, R/O: 349, SOPARWADA NAGOVA, VERNA-GOA, MODERN POULTRY FARM.

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…RESPONDENT

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(BY SRI R.M. HIREMATH, SRI. SRINIVAS NADAMANI AND SRI SUJEET S. HIREMATH, ADVOCATES)

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THIS RSA FILED U/SEC.100 READ WITH ORDER 41 RULE 1 OF CPC, TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN REGULAR APPEAL NO.351/2015 (OLD R.A.NO.177/2012) DATED 20.03.2017 BY THE X ADDL. DISTRICT & SESSIONS JUDGE, BELAGAVI BY SITTING ASIDE THE JUDGEMENT AND DECREE PASSED IN O.S.NO.1255/2009 DATED 07.11.2012 PASSED BY THE PRINCIPAL CIVIL JUDGE & JMFC., BELAGAVI.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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2 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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Heard learned counsel appearing for the appellant and respondent.

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This Regular Second Appeal was admitted on 09.12.2024 to consider the following substantial question of law.

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(i) Whether the First Appellate Court is justified in reversing the judgment and decree of the trial Court on the premise that the trial Court had no territorial jurisdiction to decide the suit, despite such objection not being raised by the defendant before the trial Court ?

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At that point of time, the respondent had not

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appeared. Now the respondent is before the Court.

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Learned counsel appearing for the respondent would submit that defence relating to the territorial jurisdiction was raised in the written statement. Under these circumstances, the substantial question of law is to be modified as under:

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3 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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“Whether the First Appellate Court is justified in reversing the judgment and decree of the trial Court on the premise that the trial Court had no territorial jurisdiction to decide the suit without considering the issue of consequent failure of justice suffered by the defendant/appellant on account of lack of territorial jurisdiction?”

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Learned counsel appearing for the

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plaintiff/appellant before this Court would submit that the suit is one for recovery of money. The plaintiff had supplied goods to the defendant, who is residing in Goa. The plaintiff has got its head office at Belagavi. It is his contention that certain amount was due from the defendant to the plaintiff and defendant had issued cheques in favour of the plaintiff towards part payment of the certain amount due and those cheques were dishonoured in Belagavi and thereafter, the suit was filed in respect of the balance amount. As such, it is his contention that the transaction took place in Belagavi and the Court in Belagavi had the territorial jurisdiction to decide the suit.

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4 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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Learned counsel appearing for the

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defendant/respondent would contend that the cheques issued by the defendant were in respect of some other transactions, not the suit transaction and the cases initiated pursuant to the dishonor of cheques, have been withdrawn as settled out of Court. As such, the suit is not maintainable in respect of the present transaction where the cause of action did not arise in Belagavi. Thus, he would contend that the suit ought to have been filed before the Court in Goa as the defendant purchased the goods from the plaintiff’s branch in Goa.

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Before the trial Court, it is noticed that the defendant raised a contention that the Court in Belagavi had no territorial jurisdiction. The issues are framed relating to territorial jurisdiction. However, the defendant did not move an application to treat the issue as preliminary issue. Thereafter, he participated in the proceeding and cross-examined the plaintiff and led evidence. Thereafter, the judgment was delivered

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5 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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decreeing the suit. The defendant filed an appeal before the Appellate Court. He pressed his contention relating to the territorial jurisdiction and Appellate Court held that there was no cause of action in Belagavi and accordingly, allowed the appeal and dismissed the suit.

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This Court has considered the contentions

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raised at the bar and perused the records.

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Relevant portion of Section 21 of the Code of Civil Procedure (for short ‘CPC’) reads under;

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Objections to jurisdiction. —[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

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(emphasis supplied)

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6 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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Under Section 21 of the CPC if a defendant is having grievance relating to the territorial jurisdiction of the Court, then he must raise the defence relating to the territorial jurisdiction before the issues are settled. It is noticed that such a defence is raised. The first part of Section 21 of the CPC, is complied by the defendant. Again in case the Appellate Court is to entertain a objection relating to the territorial jurisdiction, the Appellate Court must be satisfied that the lack of territorial jurisdiction has resulted in failure of justice.

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Here, it is required to be noticed that the defendant did not move any application before the trial Court to treat the issue as preliminary issue. He led evidence on merits of the case. He has cross-examined the plaintiff. Never in the evidence, he stated that he is unable to prosecute the case properly because of the lack of territorial jurisdiction for the Court in Belagavi to try the

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suit.

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7 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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Under these circumstances, this Court is of the view that there is no consequent failure of justice, which is one of the requirements under Section 21 of CPC to entertain an objection relating to the territorial jurisdiction of the Court at the appellate stage.

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For the aforementioned reasons, the question of law framed has to be answered in favour of the appellant and against the respondent. It is also noticed that the First Appellate Court has not considered the appeal on merits. It has decided the appeal only on the ground of territorial jurisdiction. Hence, the matter requires to be remitted to the First Appellate Court for fresh consideration on merits.

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Hence the following:

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ORDER

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i) Appeal is allowed.

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8 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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ii) Impugned judgment and decree dated 20.03.2017 on the file of X Additional District Judge, Belagavi are set-aside.

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iii) The Regular Appeal No.351/2015 is remitted to the First Appellate Court for fresh consideration in accordance with law.

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iv) All contentions except the contention relating to the territorial jurisdiction are to be considered by the First Appellate Court.

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v) It is made clear that this Court has not expressed any opinion on the merits of the judgment of the trial Court.

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vi) The parties shall appear before the trial Court on 08.01.2024.

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9 - NC: 2024:KHC-D:18168 RSA No. 100524 of 2017

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vii) It is expected that both the parties shall

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co-operate for early disposal of the case.

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viii) Registry shall refund the Court fee to the

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appellant.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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AM CT:ANB List No.: 1 Sl No.: 27

M/S Samrat Feeds Pvt. Ltd., v. Shri. Ireneu Gonsalves

Case brief

What is this about?

What did the court decide?

M/S Samrat Feeds Pvt. Ltd., v. Shri. Ireneu Gonsalves

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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