“Law Master’s” Publication

‘Place of Suing’

Prof. .S. D. Bhosale

(..5..)

PLACE OF SUING

(Ss. 15 to 21A)

QUESTION BANK

1. State rules under Civil Procedure Code to determine place of suing.

2. Discuss the place of suing and the territorial jurisdiction for filing a civil suit.

3. What is meant by “place of suing”.

4. “Every suit shall be instituted in the Court of the lowest grade competent to try it”-

Discuss.

SHORT NOTES

1. Place of suing.

Ss. 15 to 20 of the Civil Procedure Code determines the forum (Court) for the

institution of suits.

I. PECUNIARY JURISDICTION (S. 15):-

S. 15 provide that ‘every suit shall be instituted in the Court of the lowest grade

competent to try it’. Thus, this section refers to the pecuniary jurisdiction of the court.

The objects of the section are two-fold. Firstly, courts of higher grade shall not be

overcrowded with suits and secondly, there should be convenience to the parties and

witnesses.

The word competent to try means having jurisdiction to try. This section lays down

rule of procedure only and not of jurisdiction. Therefore, if a suit of less value is tried by a

court of higher grade, it is a mere irregularity and does not affect the jurisdiction of the

Court i.e. it won’t become nullity.

“Law Master’s” Publication

‘Place of Suing’

Prof. .S. D. Bhosale

It is the valuation of suit in the plaint which determines the jurisdiction of the Court.

In Maharashtra, pecuniary jurisdiction is determined by the Bombay Civil Courts Act 1889.

According to the Act, Civil Courts are divided into two classes, viz. Civil Judge Senior

Division and Civil Judge Junior Division. S. 24 of the Act provides that the jurisdiction of

Civil Judge Senior division can extend to all original suits and proceedings of a civil nature.

Thus, there is no pecuniary limitation on power of the Court. However, jurisdiction of Civil

Judge Junior division extends to all original suits and proceedings of a civil nature where

the value of the subject matter does not exceed rupees five lakh.

II. TERRITORIAL JURISDICTION:-

A) Suits relating to immovable property (Ss. 16 to 18)-

Sections 16 to 18 deal with places of instituting suits relating to immovable

property.

(1) Suits to be instituted where subject-matter situate (S. 16)-

It provides that, subject to the pecuniary or other limitations prescribed by any law,

suits regarding immovable property are to be instituted in the Court within whose local

jurisdiction the property is situated. Thus suits for the following reasons relating to

immovable property are to be filed in the Court within local limits of whose jurisdiction

the property is situated.-

(i) suits for recovery of immovable property;

(ii) suits for partition of immovable property;

(iii) suit for foreclosure, sale or redemption in case of mortgage of or charge upon

immovable property;

(iv) suits for determination of any other right to or interest in immovable property;

and

(v) suits for torts to immovable property.

However, the proviso to this section provides that where a suit to obtain relief

in respect of immovable property can be entirely obtained through the personal obedience

of the defendant, the suit may be instituted whether within the local limits of the Court

where the property is situated or in the Court within whose jurisdiction the defendant

actually and voluntarily resides, or carries on business, or personally works for gain.

In fact, suits are instituted against the person and not against the property. Therefore, if

there is a situation in which even though the suit is related to immovable property, but relief

can be obtained by securing the presence of the defendant, then the proviso applies. In such

cases, claim can be brought where the defendant resides even though property is situated

outside the jurisdiction of Court or abroad.

(2) Suits for immovable property situated within jurisdiction of different Courts (S.

“Law Master’s” Publication

‘Place of Suing’

Prof. .S. D. Bhosale

17)-

It provides that where suit is to obtain relief respecting immovable property situated

within the jurisdiction of different Courts, the suit may be instituted in any Court within

the local limits of whose jurisdiction any portion of the property is situated. However, the

pecuniary limit of the Court is to be taken into consideration while instituting suit.

(3) Place of institution of suit where local limits of jurisdiction of Courts are uncertain

(S. 18)-

It lays that where it is uncertain as to within whose jurisdiction of two or more

Courts the immovable property is situated, any one of those Courts may try the suit relating

to that property after recording a statement as to uncertainty.

B) Suits relating to movable property (S. 19)-

It lays down that a suit for compensation for the wrong done to the person or to

movable property may be instituted, at the option of the plaintiff, either in the Court within

whose jurisdiction the wrong was done or alternatively in the Court within whose

jurisdiction the defendant resides, or carries on business, or personally works for gain.

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.

C) Other suits (S. 20)-

S. 20 is a residuary section. It covers all cases not covered in earlier sections i.e. S.

15 to 19. It lays down that all such suits may be filed at the plaintiff’s option in any of the

following Courts, viz.

(a) where the cause of action, wholly or partly, arises; or

(b) where the defendant resides or carries on business or personally works for gain or

personally works for gain. However, in such circumstances, permission of the court or

acquiescence of other defendants who do not reside in that jurisdiction is essential.

‘Cause of action’ means every fact which needs to be proved by the plaintiff

necessarily to entitle him to a decree in a suit.

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,

“Law Master’s” Publication

‘Place of Suing’

Prof. .S. D. Bhosale

B and C make a joint promissory note payable on demand and deliver it to A. A 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.

In Indian Performing Rights Society Ltd. v. Sanjay Dalia (AIR 2015 SC 3479)

Supreme Court held that- the fact that the bulk of litigation on a particular subject is filed

at a particular place and lawyers having expertise available at that place are irrelevant

factors to deciding territorial jurisdiction.

III. JURISDICTION AS TO SUBJECT MATTER:

Different Courts are allotted different types of work. For example, a small cause

court can try only certain suits, such as a money suit based on an oral loan or a bond or

promissory note, a suit for price of goods supplied or work done; however, it has no

jurisdiction to try suits for partition, for injunction, for immovable properties or for specific

performance of a contract. Similarly, only District Judge has the jurisdiction in respect of

testamentary matters such as granting probate or letter of administration and in divorce

cases.

IV. OBJECTION AS TO JURISDICTION (S. 21 & 21A)-

According to S. 21 no objection as to the territorial, pecuniary jurisdiction or

competence of executing Court as to local jurisdiction can be raised before appellate or

revisional Court unless-

(i) it was taken in the Court of first instance,

(ii) at the earliest possible opportunity, and

(iii) at or before the time of settlement of issues,

(iv) unless there is consequent failure of justice.

This section provides as to the defect relating to the place of suing. It lays down that

if there is a defect as to place of suing as mentioned under Ss. 15 to 20 and is not raised in

the Court of the first instance, it cannot be raised subsequently in appellate or revisional

stage.

Similarly, no suit can be filed to set aside a decree passed by a Court on an objection

as to the place of suing (S. 21 A).

NOTE:

TRANSFER OF SUITS (Ss. 22 to 25)-

To secure just and fair trials, the Civil Procedure Code has made provisions for the

transfer of cases from one Court to another in sections 22 to 25¹.

¹S. 22. Power to transfer suits which may be instituted in more than one Court – Where a suit may be instituted in any

one of two or more Courts and is instituted, in one of such Courts, any defendant, after notice to the other parties,

“Law Master’s” Publication

‘Place of Suing’

Prof. .S. D. Bhosale

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may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to

have the suit transferred to another Court, and the objections of the other parties, (if any), shall proceed.

S. 23. To what court application lies – (1) Where the several Courts having jurisdiction are subordinate to the same

Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall

be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within

the local limits of whose jurisdiction the Court in which the suit is brought is situate.

S. 24. General power of transfer and withdrawal – (1) On the application of any of the parties and after notice to the

parties and after hearing such of them as desired to be heard, or its own motion, without such notice, the High Court

or the District Court may, at any stage –

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it

and competent to try or dispose of the same ; or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it ; and

(i) try or dispose of the same ; or

(ii) transfer the same for trail or disposal to any court subordinate to it and competent to try or dispose of the

same ; or

(iii) re – transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub – section (1), the Court which 37 [ is

thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of

transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

[(3) For the purposes of this section –

Courts of Additional And Assistant Judges shall be deemed to be subordinate to the District Court ,

“Proceedings” includes a proceeding for the execution of a decree or order.]

(4) The Court trying any suit transferred or withdrawn under this section from a Court of small causes shall, for the

purposes of such suit, be deemed to be a court of small causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]

S. 25. Power of supreme Court to transfer suits, etc. – (1) On the application of a party, and after notice to the parties,

and after hearing such of them as desire to be heard, the supreme Court may, at any stage, if satisfied that an order

under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred

from a High Court or other Civil Court in one state to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in

the order of transfer, either re – try it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application

was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the

application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the

court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal

or proceeding.