Place of suing – Civil Law
By Y.Srinivasa Rao, Prl. Senior Civil Judge, Tirupati
Place of suing
Section 15:- Court in which suits to be instituted:- Every suit shall be instituted in the Court of the lower grade competent to try it. This provision relates to procedural law. If a Court has jurisdiction to try a suit under a Special Act, it can do so. AIR 1962 Madras 450 (FB).
The words ‘place of suing’:-
It was held in Ennala Balaram and others Versus E. Balakrishna, C.C.C.ANo.59 of 1965, dated 02-01-1969 that The words ‘place of suing’ occurring in sections 15 to of the Civil Procedure Code refer only to the local venue of the suits cognizable by the Indian Courts governed by the Code of Civil Procedure. The said provisions of the Civil Procedure Code merely regulate the territorial jurisdiction of the Indian Courts and section 21 of the Code of Civil Procedure which embodies the principle of waiver of objections relating to territorial jurisdiction has been held to apply only to eases to which the Civil Procedure Code applies.
Under section 15 of CPC, every suit shall be instituted in the Court of the lowest grade competent to try it. As was held in Kanwar Singh Saini Vs. High Court of Delhi,, Jurisdiction cannot be conferred with the consent of parties nor by superior Court. It was observed in M. Kasi Annapurnamma Versus M. Seshaiah, It is a settled position of law that the Court having no pecuniary iurisdiction when entertains a suit but ultimately when it found that it lacks jurisdiction and returned the Plaint for presentation to the proper Court, it is not a continuation of the earlier proceedings initiated in the competent Court and the starting point of the date in which the suit is instituted, is the date of re-presentation to the competent court having jurisdiction. All the proceedirgs taken in the court of the first instance, are thereby rendered void and of no consequence. Thereby, the proceedings before the Court of first instance are a nullity.
Section 16:- Suits to be instituted where subject-matter situate. See. Amisj Jain Vs. ICICI Bank Ltd., AIR 2013 Delhi 172 (FB).
Sections 16, 17 and 20 of C.P.C. relating to ‘place of suing’ not applicable to High Courts at Madras, Calcutta and Bombay exercising original civil jurisdiction under Section 120, CPC. Held: Section 120 of the Code of Civil Procedure excludes the applicability of Sections 16, 17 and 20 of the Code of Civil Procedure in cases of trial by Madras, Calcutta and Bombay High Courts which were exercising ordinary original civil jurisdiction at the time of introduction of amendment in the year 1951.(Para 15). See.T.N. Seshan, Chief Election Commissioner, New Delhi others.vs.Dr.M.Karunanidhi, President of RespondentsMunnetra Kazhagam Party, Madras and Application No.48/95:-All India Annadravida Munnetra Kazhagam rep. by its General Secretary Dr. J. Jayalalitha, Madras vs.Thiru K. Govindan Kutty, Author, Editor and Publisher of the Book.
Section 21-A of CPC — The expression “place of suing” could be understood as taking within it both territorial jurisdiction and pecuniary jurisdiction, Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas,, AIR 2007 SC 1828.
In Union of India vs. Indian Hume Pipe Co. Ltd. and another.,1980 SCC OnLine Bom 261, it was held as follows: “Sections 15 to 20 ofthe Civil Procedure Code pertain to these provisions and we are admittedly concerned with section 20 as it stood prior to the amendment of 1976. The whole of the section may now be extracted together with Explanation II;—
“20. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits ofwhose 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 busiuess, 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;
(c) the cause of action, wholly or in part, arises.
Explanation I : Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.
Explanation II : A corporation shall be deemed to carry on business as 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”.
It may be mentioned that by the amendment of 1976 Explanation I has been deleted with the result that the original Explanation II now becomes the solitary Explanation to the said section.
Perusing the provisions contained in section 20 it is clear that jurisdiction cannot be claimed to have been conferred on the City Civil Court under clause (e) as admittedly no part of the cause of action has arisen in Greater Bombay. Thus the plaintiffs, in order to substantiate the plea as to jurisdiction under section 20 of the Civil Procedure Code, will have to contend that jurisdiction is conferred on the City Civil Court by reason of either clause (a) or clause (b). Now, the defendants to the suit are the Union of India, but they are sued as owners of two Railways viz. the Northern Railway and the Central Railway. It is the Central Railway alone which has its head-quarters in Bombay. The Northern Railway Administration admittedly does not have its headquarters in Bombay and hence clause (a) does not apply. If at all, jurisdiction is to be sought for under section 20 ofthe Code of Civil Procedure, it will have to be under clause (b). I am making this analysis of the provisions because I find that leave of the Court has not been obtained as far as the Northern Railway Administration is concerned and such leave of the Court is clearly contemplated under section20 (b). There is also no acquiescence in such institution by the said Railway Administration. This, however, is not the point arising from the decision on the defendants’ notice of motion which decision has beers impugned in this Appeal from Order. Mr. Samant on behalf of the appellants F fairly conceded that this point had not been urged by him in the lower Court and the attention of the trial Court had not been drawn to the failure ofthe plaintiffs to obtain leave under section 20(b) of the Civil-Procedure Code.“
This controversy was resolved by the Supreme Court in its decision given in Union of India v. Sri Ladulal Jain. The rationale of the provision under section20 of the Civil Procedure Code was explained in paragraph 6 and the Court thereafter went on to observe that although the expression ‘voluntarily resides or personally works for gain’ cannot be appropriately applied to the case of the Government, the Government can however be said to carry on business. Articles 298 and 19(6) of the Constitution ofIndia were referred to and in the opinion of the Supreme Court, these Articles clearly indicate that the State could carry on business. The Court went on to consider that the running of railways was originally in the hands of private companies and individuals. According to the Supreme Court, it was the nature of the activity which defines its character. Running of railways is such an activity which would come within the expression ‘business’. The motive of the person running the said business was irrelevant. Accordingly, it was held that the Union of India thus carries on the business ofrunning railways and it could be sued in the Court within whose territorial jurisdiction the headquarter of the Railway run by the Union of India is situate. (See paragraph 16 ofthe report). Thus, as far as the Central Railway Administration was concerned, the view of the Supreme Court in Ladulal Jain’s case if applied would mean that the suit against the Union of India as owning the Central Railway Administration could be filed in the Bombay City Civil Court if the claim fell within the limits of pecuniary jurisdiction of that Court