Partly allowed

k. venkata prasad v. M. Shahanaz

Telangana HC22 Mar 2010CRP/5058/2009

Case brief

AI extract

What is this about?

This appellate order set aside a lower court's dismissal of a defendant's application to frame a territorial jurisdiction issue. The High Court directed the trial court to frame the issue as part of the suit and noted that if no jurisdiction existed, the plaint should be returned under Order VII Rule 10 CPC without deciding merits. The revision was largely upheld to allow framing of the issue, tho

What did the court decide?

The additional issue application allowed only to frame the issue of territorial jurisdiction; the issue need not be tried as a preliminary issue.

k. venkata prasad Vs M. Shahanaz — Execution and Attachment | Telangana HC (2010)

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*** THE HON’BLE Ms. JUSTICE G. ROHINI**

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CIVIL REVISION PETITION No.5058 of 2009

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%Date: 22.03.2010

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K.Venkata Prasad … Petitioner And M.Shahnaz, Anantapur District. … Respondents ! Counsel for the petitioner: Sri K.Suneel Babu ^ Counsel for the respondent: Sri O.Manohar Reddy <GIST:

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>HEAD NOTE:

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?CASES REFERRED:

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1. AIR 2003 SC 718 2. AIR 2002 Punjab and Haryana 330 3. 2004 (1) APLJ 148 (HC)

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THE HON ‘BLE Ms. JUSTICE G. ROHINI

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CIVIL REVISION PETITION No.5058 OF 2009

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Dated: 22.03.2010

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Between

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K. Venkata Prasad … Petitioner And

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M. Shahanaz … Respondent

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THE HON ‘BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5058 OF 2009

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ORDER:

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The Revision petitioner is the defendant in O.S.No.34 of 2006 on the file of the Court of the Senior Civil Judge, Kadiri. The respondent herein/plaintiff filed the suit for recovery of money on the basis of a promissory note. The Revision petitioner/defendant filed the written statement denying the suit claim. It was specifically pleaded by him that the suit promissory note as well as the receipt were fabricated by the plaintiff. It was also contended that as the defendant was not residing within the territorial jurisdiction of the Court of Senior Civil Judge, Kadiri and as no cause of action arose within the territorial jurisdiction of the said Court, the suit was liable to be rejected.

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After the issues were settled and the matter was coming up for cross-examination of P.W.1, the defendant filed I.A.No.196 of 2009 under Order XIV Rule 5 of C.P.C. with a prayer to frame the additional issue “whether the Court has territorial jurisdiction to try the suit” and try the same as preliminary issue. The Plaintiff filed a counter opposing the said petition and the Court below by order dated 20.08.2009 dismissed the petition. Aggrieved by the same, the present Civil Revision Petition is filed by the defendant.

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I have heard the learned counsel for both the parties and perused the material available on record.

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Admittedly no issue was framed with regard to the territorial jurisdiction in spite of the fact that such a plea was raised by the defendant in his written statement. However, the Court below had dismissed the defendant’s application to frame the additional issue and try the same as a preliminary issue on the ground that the issue regarding territorial jurisdiction in the instant case was a mixed question of fact and law which should be decided along with other issues in the suit.

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Order XIV Rule 1 of C.P.C. provides that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. As could be seen from Order XIV Rule 1 (5), at the first hearing of the suit the Court shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

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In view of the specific plea raised by the defendant in the written statement as to the maintainability of the suit on the ground of territorial jurisdiction, it is obligatory on the part of the Court to frame a separate issue to that effect. Apparently the Court below failed to frame such an issue. In the circumstances, the petitioner was justified in seeking to frame an additional issue and rejection of the said prayer merely on the ground that it was a mixed question of fact and law was erroneous.

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Coming to the further prayer to decide the issue with regard to the territorial jurisdiction as a preliminary issue, the law is well-settled that the objection as to the territorial jurisdiction of the Court does not stand on the same footing as an objection to the competence of the Court to try a case on the ground of inherent lack of jurisdiction. It is also relevant to note that as per Order XIV Rule 2 of C.P.C., an issue

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relating to jurisdiction of the Court can be tried as a preliminary issue only where the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only.

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In the instant case, the trial has already commenced and on appreciation of the material available on record, the Court below recorded a finding that evidence was required to decide the objection raised by the defendant on the ground of territorial jurisdiction. Therefore it is impermissible to decide such an issue as a preliminary issue.

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The decisions in ABDUL RAHMAN v. PRASONY BAI AND ANOTHER^[1] and JAGDEV SINGH v. SARDARNI PREM PARKASH KAUR AND OTHERS^[2] cited by the learned counsel for the petitioner have no application to the facts in the instant case. On the other hand, a Division Bench of this Court in THE BANK OF INDIA, C.B.D. BELAPUR BRANCH v. U.A.N. RAJU^[3] while dealing with an identical question held that Order VII Rule 10 of C.P.C. empowered the Court to return the plaint on the ground of territorial jurisdiction at any stage of the suit to be presented to the Court in which the suit ought to have been instituted. The Division Bench made it clear that the words ‘at any stage of the suit’ would mean even after the trial had began and concluded but before the judgment was delivered. Accordingly the matter was disposed of with the following directions:

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“… … we direct that the trial of suit will proceed in accordance with law till conclusion of the proceedings. But, in case, the trial Court would come to the conclusion on the preliminary issue framed in the case as regards the territorial jurisdiction that it has got no territorial jurisdiction to entertain and try the suit, it shall follow the procedure as laid down in Order VII, Rule 10 of the Code of Civil Procedure by returning the plaint to the plaintiff for being presented in appropriate Court of law and in that eventuality, it will not proceed to decide the other issues on merits.”

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For the aforesaid reasons, I am of the opinion that though it is

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necessary to frame an additional issue with regard to the territorial jurisdiction of the Court as sought by the petitioner, the same need not be tried as a preliminary issue. In the result, the order under Revision is hereby set aside and I.A.No.196 of 2009 shall stand allowed to the extent of framing an additional issue “whether the Court has territorial jurisdiction to try the suit”.

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Accordingly, the Civil Revision Petition is disposed of with a direction to the Court below to frame the additional issue and then proceed with the matter following due process of law till the conclusion of the proceedings. In case the Court comes to a conclusion that the Court has got no territorial jurisdiction, the plaint shall be returned to the plaintiff as laid down in Order VII Rule 10 of C.P.C. for being presented in the appropriate Court of law without proceeding to decide the other issues on merits.

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Civil Revision Petition is accordingly disposed of. No costs.

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_____________ G. ROHINI, J.

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Dt. 22.03.2010 Note:- LR copy to be marked. (B/O) gbs

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[1] AIR 2003 SC 718

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[2] AIR 2002 Punjab and Haryana 330 [3] 2004 (1) APLJ 148 (HC)

k. venkata prasad v. M. Shahanaz

Case brief

What is this about?

What did the court decide?

k. venkata prasad v. M. Shahanaz

Case brief

What is this about?

What did the court decide?

What the court decided

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