1979 PLP 613 (CLC)

It was held by Jessel, M. R., in 20 Ch. D 637, that :- "A case is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding, it is pending." (Aliyer's Manual of Law Forms and Phrases, page 513). Schultz, J. A. defined it in Garnham v. Tessier ((1959) 27 W W R 682), as:- "Any legal proceeding, suit or action remaining undecided or awaiting decision or settlement." (Words and phrases Legally Defined by John B. Saunders, Vol. 4, page 100). It is correct that section 24 requires a notice to be given to the opposite-party when transfer is to be made on the application of a party, but failure to do so, is merely an irregularity, especially when no prejudice is proved. As the learned commenter (Chitaley on C. P. C., p. 420) have rightly stated, the Section gives the District Judge jurisdiction to transfer a case suo moto, even without notice which shows that the question of notice cannot be a question of jurisdiction. This view was taken in A I R 1916 Nag. 123 and A I R 1932 Cal.

265. While a notice is a normal procedure and is also desirable so that the opposite-party is able to place its point of view before the Court, if it has any real objection, an order passed without such notice which also, prima facie, seems to suit the convenience of both the parties equally, as in this case and no prejudice is even alleged, much less to have been established, as a result of the transfer without notice, I think the order of transfer does not suffer from any inherent fatality. I think, in interpreting the procedural law on points 'D such as the one before me, the objective ought to be to make it workable and prevent its employment ,for frustrating, the ends of justice, by a resort to technicalities. It could then be argued that the suit could 7 not be instituted in the District Court because section 15 of the C. P. C. provides that it shall be instituted in the Court of lowest grade and since the Sub-Judge Bagh was the Court invested with the lowest grade, it should have been instituted in the said Court. Section 15, C. P. C. is reproduced below :- "15.-Every suit shall be instituted in the Court of lowest grade competent to try it." The point has been agitated in several decisions and except for two earlier decisions of the Madras High Court, it has been held that section 15) is merely a direction to the litigant and is intended to regulate practice. but does not take away the right of a superior Court having Jurisdic tion, to entertain a suit and try the same. The first leading case on the point is (1884) 7 All. 230, decided by 5 Judges who included Mr. Justice Mahmood. It was held by Sir Petheram, C. J. :-- "Section 15 of the C. P. C. is a proviso to those sections. The word "shall" in that Section is imperative on the suitor. The word is used for the purpose of protecting the Court. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits. Whenever an Act confers a benefit, the donee may exercise the same or not at his pleasure. The proviso is in the benefit of the Court of the Higher grade and it is not bound to take advantage of it. If it wishes to entertain the suit in its Court, it may: do so, it is not bound to refuse to entertain." Mr. Justice Mahmood has brought home two important points which would be apparent from the following brief quotations "The Legislature intended that the jurisdiction of the subordinate Judges should begin where that of the Munsif ceases. The language of section 15 seems to me to contemplate that the Court competent, f. e. having jurisdiction-to try the suit may be of more than one grade, because the whole object of the Section is to provide that the suit should be instituted in the Court of the lowest grade phrase which would not have been employed if there were not a higher Court possessing jurisdiction to try the suit; in other words the jurisdiction were possessed by only one Court. Section 15 of the C. P. C. is a rule of procedure, not of jurisdiction; and whilst it lays down that a suit shall be institute) in the Court of the lowest grade, it does not oust the jurisdiction of any Court of a higher grade." Brodhurst, J. returning the same opinion has cited two earlier rulings, Russick Chwnder Mohunt v. Rain Lai Shahs (22 W R 301), decided by a D. B. in which a similar provision in an earlier enactment was held to be "a provision intended to regulate the practice of the Courts" and "not intended to take away jurisdiction from any Court which has general jurisdiction" and Sufee-o-hlah Sircar v. Begum Blbi (1), decided by Garth, C. J. and Birch, J., in which it was held : "The subordinate Judge is empowered by section 19 of Act VI of 1871 to try cases of any value, although he might very properly, if he had found the subject-matter of the suit to be under rupees one thousand, have sent it to the Munsif's Court to be tried there; he had clear jurisdiction to try it himself and the fact that he did so try it, is no ground of assault in Special appeal. " Almost the same view was taken in (1889) 17 C. 155 by a D. B. of the Calcutta High Court. In A I R 1951 Mad. 93 a Full Bench took the same view and held :- "The object of section 15, C. P. C. is to prevent superior Courts being flooded or overcrowded with suits triable by Courts of inferior grade. The section merely regulates procedure and not jurisdiction. It does not deprive Courts of superior pecuniary grade and their jurisdiction to try suits which should ordinarily be tried by Courts of inferior grades." The same view was taken in A I R 1958 Andh. Pra.

28. A contrary view was taken in 13 Mad. 25 and 13 Mad.

273. The suits bad been brought in the Courts of higher grades. The objection was upheld in the High Court, the decrees were set aside and the plaints were ordered to be returned for presentation in the proper Courts. However, a departure was made soon afterwards, in (1892) 15 Mad.

241. The suit was brought in the District Court whereas it should have been brought in the subordinate Court. A Division Bench overruled the objection and relying upon 7 All. 230 and 17 Cal. 155 held that the District Court did have the jurisdiction to try the suit. It may be pointed out that the earlier two Madras cases were decided on 29th March and 20th December 1889 while the Allahabad case, was decided on 13th July 1884 and the Calcutta case, on 22nd July 1889. The Allahabad's case which must have been published by March 1889, was not brought to the notice of the learned Judges. Therefore, as nothing stood in the way of its institution in the Court of the District Judge, Rawalakot, its presentation in the said Court ands consequent transfer to the Court of Sub-Judge Rawalakot would, for all p practical purposes, be deemed as if the suit was instituted in the Court of the District Judge and was then transferred to the Court of Sub It was next contended that the case could be transferred only to a "Court which was "competent to try" it and that "competency" also included territorial competency of the transferee Court. This view has, of course, been taken in two cases, A I R 1920 Pat. 29 and A I R 1933 All. 178 (25 W R 219). The Division Bench which decided the latter case, also included Mr. Justice Sir Shah Muhammad Sulaiman. In a large number of other cases, the word has been interpreted to mean only the pecuniary jurisdiction of the transferee Court. Reference may be made to A I R 1932 All. 660, A I R 1933 Oudh 154, A I R 1933 Lah. 67:, A I R 1940 Rang. 133, A ) R 1956 Raj. 192 and A I R 1958 Andh. Pra.

218. The argument advanced in the latter cases is that it would otherwise render the transfer powers nugatory is normally one District Judge or Sub-Judge in a territorial unit to hear such cases. It was held in A I R 1932 Bom. 486 that the bar of trying such a suit as envisaged in section 17 of the Small Causes Courts Act .by a Sub-Judge, was overriden by section 24 of the C. P. C. The A I R 1920 Pat. 29 is a D. B. case. It was the Chief Justice . Dawson Miller who stated that he saw no ground to give the word "competent" a restricted meaning as not to include local jurisdiction. The other learned member of the Bench, Das, J., agreeing with his Lordship on the order proposed, expressly reserved his opinion about the meaning of the word "competent". His Lordship pointed out that the transferee Court lacked even the pecuniary jurisdiction. The Allababad case of Ram Das v. Habibullah (A 1,R 1933 All. 178), was actually decided on 16th April 1931 and bad been already overruled (when reported) by Kishore Lai v. Balkishen (A I R 1932 All. 660). It was decided on 16th June 1932 and the D. B. included Mr. Justice Sir Shah Muhammad Sulaiman who has written the judgment. perusal of A I R 1932 All. 670 shows that in the 1882 Code, section 25 empowered the High Court and the District Judge to transfer a suit to a subordinate Court "competent to try the same in respect of the nature and the amount or value of the subject-matter . . . . In the 1908 Code these words were substituted by the words, "competent to try or dispose of the same". In his later judgment, Mr. Justice Sulaiman stated : "I am satisfied that the words have been deleted because they were considered redundant or unnecessary by the Legislature." In The reasoning which persuaded Sir Sulaiman to dissent from his own earlier view, is as follows :- "Cases of concurrent jurisdiction where two Courts have both pecuniary and territorial jurisdiction to try a suit are dealt with in section

22. The same words "competent to try the suit" occur in section 11, C. P. C. as also in section

15. It quite clear that for purposes of res judicata it is not necessary that the two Courts must have concurrent territorial jurisdiction which depends entirely on the subject-matter in dispute. The . provision in section 15 would point to the same conclusion. It may also be pointed out that a distinction has been drawn in the Code as regards territorial jurisdiction, and section 21 provides that no objection, as to place of suing shall be allowed, 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 much settlement and unless there has been a consequent failure of justice." 4 Now, although section 25 of the 1882 Code did not expressly say that local jurisdiction of transferee Court was not necessary, it was interpreted to mean so, even by that great Judge Syed Mahmood, in 7 All. 230 :- "It is not that the act of transferring a suit confers jurisdiction; but the existence of jurisdiction with reference to the nature and value of the suit is a condition precedent to the exercise of the power of transfer." ' Now, suppose for the sake of argument that the suit was not pending in the Court of the District Judge, that the order passed by him was not within the four-walls of section 24 and that the Rawalakot' trial Court lacked local jurisdiction to hear it, even then, the decree passed by it is protected by section 21, Civil Procedure Code. The section reads 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 means that an objection regarding territorial jurisdiction cannot be upheld by an appellate or revisional Court : (1) if it has not been taken in the trial Court at the earliest possible opportunity, at the time or before the settlement of issues ; and (2) if there has not been a consequent failure of justice. The section has been interpreted to mean that if a case has been decided on merits, after rejecting an objection about local jurisdiction unless it is shown that there was a consequent failure of justice, the judgment. and decree passed by the trial Court cannot be set aside. There is a plethora of case law on the point. The first case after the Code was enacted in its present form in 1908 is A I R 1914 Lab. 385, decided by a D. B. including Shadi Lai, J. The case was triad at Lyallpur instead of at Karachi. Although the plaintiff failed to show that the Lyallpur Court had territorial jurisdiction, the decree was not et aside ad the learned Judges remarked :- "The object of the Legislature in enacting this salutary principle of law is that when the Court of first instance, after giving an affirmative finding on jurisdiction, takes proceedings on the merits of the case the latter should not be rendered abortive and all the time and labour spent thereon should nut be wasted simply by reason of the fact that the higher Court corn; s to a contrary finding on the Preliminary point of jurisdiction.' This view has since been-confirmed in A I R 1921 All. 66, A I R 1934 Lab, 233, A I R 1924 Mad. 697, A I R 1924 Pat. 527, A I R 1930 Lab. 1016, A I R 1931 Lab. 742, A I R 1962 S C 199 and in a host of other cases. It was also held in A I R 1924 Mad. 697 that the party raising the question of the absence of local jurisdiction in an appellate Court must also plead Prejudice and prove the same. The same view was taken in A I R 1924 Pat.

527. In A I R 1930 Lab. 1016, the defendant raised an objection about the absence of local jurisdiction in the trial Court which was rejected. The Court proceeded to decide the case on merits and asked the defendant to produce evidence which he refused to do and the case was decided on merits. It was held by Jai Lai, J. that the defendant had no right to refuse to produce evidence and his appeal was rejected. In A I R 1931 Lab. 142 which is on all fours with the present case, and which was a suit for dissolution of partnership and rendition of accounts, the defendant objected to the local jurisdiction of the Court at Ludhiand. A preliminary issue was struck and the Court decided it to favour of the plaintiff. Ultimately, a preliminary decree dissolving the partnership and ordering accounts to be taken was passed. The defendant went in appeal to the District Judge and one of the grounds taken was that the trial Court had no territorial jurisdiction. The plea was accepted and the suit was dismissed. On appeal by the plaintiff, the High Court restored the decree of the trial Court. The D. B. held :- "The learned District Judge has overlooked the last ten words of section 21, Civil P. C. That section clearly forbids any objection as to the place of sung unless there has been a consequent failure of justice. No such failure of justice was even alleged in the grounds of appeal preferred to the District Judge nor has the learned counsel for the respondents been able to show us any reason for supposing that such failure of justice has occurred." The test to be applied by an appellate Court has been laid down by a D. B. in A I R 1921 All.

66. The learned Judges laid down :- "There is, in other words, a clear provision of the law with reservations that if the first Court, even though it had no territorial jurisdiction, has tried out the case upon the merits in such a way, (1) that all the available evidence which either party wanted to call has been called, (2) that the hearing and trial was satisfactory as a matter of procedure, and (3) that the decision appears to be right in fact, the question of territorial jurisdiction is relegated to the obscurity." It will be observed that the defendant contested the case to the best of his ability; he filed a written statement, led evidence, cross-examined the witnesses of the plaintiff and had the facility of legal assistance. It is also to be noted that no argument was raised about the merits of the dissolution claim, either in the Court of District Judge or in this Court. On the contrary, the evidence has shown that the appellant deserted his young bride soon after marriage, took a second wife from Karachi who has not only been living with him but from whom he has also children. He did not return home for nearly six years and till after the institution of the suit for dissolution. She was completely neglected during all this long period the best period of health, youth and play. He has sought his happiness by taking a second wife and is living happily with her. Let, therefore, the plaintiff also seek her happiness elsewhere, instead of spending her whole life as a total shipwreck. Therefore, I accept the appeal, set aside the judgment of the District Judge Rawalakot and restore the judgment and decree passed by the Sub-Judge Rawalakot whereby he granted the appellant-plaintiff a decree for dissolution of marriage. The judgment be sent to the District Judge Rawalakot who will summon the counsel for the parties, it to them and get their signatures. Appeal accepted.