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Hanumant - Civil procedure code notes

Civil procedure code (Symbiosis International University)

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Q. "Every suit shall be instituted in court of lowest grade competent to try it",
Explain. Explain the provisions of CPC which are applied in determining the forum
for institution of a suite relating to immovable property. State principles which guide
a plaintiff in determining the place of filing a suit. Explain.
In India, courts are hierarchically established. The lower courts have less powers than the higher or superior courts. The Supreme
Court of India is at the top of the hierarchy. There are numerous lower courts but only one High Court per State and only one
Supreme Court in the Country. Thus, it is immpractical to move superior courts for each and every trivial matter. Further, the subject
matter of a suit can also be of several kinds. It may be related to either movable or immovable property, or it may be about
marriage, or employment. Thus, speciality Courts are set up to deal with the specific nature of the suit to deal with it efficiently.
Similarly, it would be inconvenient for the parties to approach a court that is too far or is in another state. All these factors are
considered to determine the court in which a particular suit can be filed. CPC lays down the rules that determine whether a court
has jurisdiction to hear a particular matter or not.

These rules can be categorized as follows - Pecuniary Jurisdiction, Territorial Jurisdiction, Subject matter jurisdiction, and Original
Jurisdiction.

Pecuniary Jurisdiction
As per Section 15, every suit shall be instituted in the Court of the lowest grade competent to try it. This is a fundamental rule which
means that if a remedy is available at a lower court, the higher court must not be approached. More specifically, this rule refers to
the monetory value of the sute. Each court is deemed competent to hear matters having a monetory value of only certain extent. A
matter that involves a monetory value higher than what a court is competent to hear, the parties must approach a higher court. At
the same time, the parties must approach the lowest grade court which is competent to hear the suit.

However, this rule is a rule of procedure, which is meant to avoid overburdoning of higher courts. It does not take away the
jurisdiction of higher courts to hear matter of lesser monetory value. Thus, a decree passed by a court, which is not the lowest grade
court compenent to try the matter, is not a nullity. A higher court is always competent to try a matter for which a lower court is
compenent. This rule applies to the parties as it bars the parties to approach a higher court when a lower court is competent to hear
the matter.

Example

Valuation

Territorial Jurisdiction
Territorial Jurisdiction means the territory within a Court has jurisdiction. For example, if a person A is cheated in Indore, then it
makes sense to try the matter in Indore instead of Chennai. The object of this jurisdiction to organize the cases to provide
convenient access to justice to the parties. To determine whether a court has territorial jurisdiction, a matter may be categorized into
four types -

1. Suits in respect of immovable property

Section 16 - Suits to be instituted where subject-matter is situated — Subject to the pecuniary or other limitations prescribed by
any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property is situated:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the
defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court
within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business, or personally works for gain.
Explanation.— In this section "property" means property situated in India.

Section 17 - Suits for immovable property situated within jurisdiction of different Courts— Where a suit is to obtain relief respecting,
or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit my be instituted in any
Court within the local limits of whose jurisdiction any portion of the property is situated : Provided that, in respect of the value of the

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subject matter of the suit, the entire claim is cognizable by such Court.

Section 18 - Place of institution of suit where local limits of jurisdiction of Courts are uncertain—
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable
property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to
that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have
the same effect as if the property were situate within the local limits of its jurisdiction :
Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revisional Court
that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate,
the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit,
no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent
failure of justice.

2. Suits in respect of immovable property - It is said that the movables move with the person. Thus, a suit for a movable person
lies in the court, the territory of which the defendant resides.

Section 19 - Suits for compensation for wrongs to person or movable— Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may
be instituted at the option of the plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

3. Suits for compensation for wrong (tort) - Section 19 applies to this as well.

4. Other suits

Section 20 - Other suits to be instituted where defendants reside or cause of action arises— Subject to the limitations aforesaid,
every suit shall be instituted in Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually
and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily
resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the
defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

Explanation—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of
action arising at any place where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to
deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the
goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note
payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at
Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit
cannot proceed without the leave of the Court.

Objection as to Jurisdiction

Section 21 - 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
or settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction 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.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by
any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and
unless there has been a consequent failure of justice.

As held in Pathumma vs Kutty 1981, no objection as to the place of suing will be allowed by an appellate or revisional court unless
the following three conditions are satisfied -
(i) The objection was taken in first instance. (ii) The objection was taken at the earliest possible opportunity and in cases where
issues are settled at or before settlement of issues (iii) there has been a consequent failure of justice.

All the three conditions must be satisfied simultaneously.

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