http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  2726 of 2000

PETITIONER: Harshad Chiman Lal Modi                          

RESPONDENT: DLF Universal & Anr.                                     

DATE OF JUDGMENT: 26/09/2005

BENCH: Arijit Pasayat & C.K. Thakker

JUDGMENT: J U D G M E N T

C.K. Thakker, J.

       This appeal is filed by the appellant against the order passed by  the Additional District Judge, Delhi on May 25, 1998 in Suit No. 1036 of  1994 and confirmed by the High Court of Delhi on November 01, 1999  in Civil Revision Petition No. 506 of 1998 holding that Delhi Court has  no jurisdiction to try the suit and the plaint should be returned to the  plaintiff for presentation to proper court.           To appreciate the controversy raised in this appeal, admitted  and/or undisputed facts may be noted. The appellant-original plaintiff  entered into a ’plot buyer agreement’ (’agreement’ for short) with DLF  Universal Limited, respondent No.1 \026 original defendant No. 1 \026 on  August 14, 1985 for purchase of a residential plot admeasuring 264 sq.  mtrs. in Residential Colony, DLF Qutub Enclave Complex, Gurgaon,  Haryana.  The agreement was in the Standard Form Contract of the first  respondent.  According to the appellant, the agreement was made in  Delhi.  The Head Office of respondent No.1 was situated in Delhi.   Payment was to be made in Delhi.  The plaintiff paid an amount of  Rs.12,974/- (Rupees twelve thousand nine hundred seventy four only)  towards the first instalment.  It is the case of the appellant that payment  was made by him in instalments as per the schedule to the agreement.  In  spite of the payment of amount, the first respondent unilaterally and  illegally cancelled the agreement on April 04, 1988 under the excuse that  the appellant had not paid dues towards construction of Modular House  to respondent No. 2- original defendant No. 2 - DLF Builders &  Developers Pvt. Ltd.  The appellant objected to the illegal action of the  first respondent and sent a legal notice through an advocate calling upon  the first respondent to carry out his part of the contract but respondent  No.1 replied that the agreement had been cancelled and nothing could be  done in the matter.  The appellant, in the circumstances, was constrained  to file Suit No. 3095 of 1988 on the Original Side of the High Court of  Delhi for declaration, specific performance of the agreement, for  possession of the property and for permanent injunction.                   In the prayer clause, the plaintiff stated;          "Therefore, it is most respectfully prayed that in the facts  and circumstances stated above, this Hon’ble Court may  graciously be pleased to:--

a)      pass a decree of declaration to the effect that there is a valid  and existing contract with regard to plot No. L-31/4, DLF Qutab  Enclave Complex, Gurgaon, Haryana, between the plaintiff and  the Defendant No. 1;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

b)      pass a decree to the effect that the Defendant No. 1 is bound  to abide by the contract, i.e. plot buyer agreement dated 14.8.85  and the unilateral rescinding/canceling/withdrawing of the  contract by the Defendant No. 1 is bad and illegal;

c)      pass a decree of specific performance directing the  Defendant No. 1 to perform its part of the contract by  withdrawing the letter dated 4.4.88 and further accepting the  payments of the due instalments with regard to the plot from the  plaintiff in accordance with the terms and conditions of the  agreement, and execute a sale deed in favour of the plaintiff after  the full money is paid to the Defendant No. 1 as per clause (22) of  the agreement;

d)      pass a decree of permanent injunction restraining the  Defendants from allotting, selling, transferring, alienating in any  manner whatsoever the said plot No. L-31/4 DLF Qutub Enclave  Complex, Gurgaon (Haryana) to any person other than the  plaintiff and further restrain them from interfering in any manner  whatsoever with the possession or rights of the plaintiff after the  said plot has been handed over to the plaintiff;

e)      pass a decree of delivery of possession against the  Defendant No. 1 directing him to hand over vacant and peaceful  possession of the plot No. L-31/4 DLF Qutub Enclave Complex,  Gurgaon (Haryana) to the plaintiff, or in the event, the said plot is  already allotted and handed over to some other person by the  Defendant No. 1, another plot in the same Complex of equivalent  area in identical location be handed over to the plaintiff by the  Defendant No. 1.

                On December 09, 1988, a single Judge of the High Court of Delhi  granted interim injunction in favour of the plaintiff.  A common written  statement was filed by both the defendants on March 29, 1989  controverting the claim of the plaintiff on merits.  So far as jurisdiction  of the court was concerned, it was clearly admitted and in paragraphs 18  and 19 it was stated that "jurisdiction of this Hon’ble Court is admitted".   In view of increase in pecuniary jurisdiction of the District Court, Delhi,  the suit came to be transferred from High Court of Delhi to District  Court, Delhi on July 12, 1993 and it was re-numbered as Suit No. 1036  of 1994.  On February 17, 1997, the trial court framed issues which did  not include issue as to the jurisdiction of the court obviously because  jurisdiction of the court was not disputed by the defendants.  As late as  on August 22, 1997, i.e. after more than eight years of the filing of the  written statement, the defendants filed an application under Order 6,  Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as  the "Code") seeking amendment in the written statement by raising an  objection as to jurisdiction of Delhi Court to entertain the suit.  It was  stated that the suit was for recovery of immovable property situated in  Gurgaon District.  Under Section 16 of the Code, such suit for recovery  of property could only be instituted within the local limits of whose  jurisdiction the property was situated.  Since the property was in  Gurgaon, Delhi Court had no jurisdiction in the matter.  On January 16,  1998, the application was allowed and the written statement was  permitted to be amended.  The amended written statement was filed  which also contained a statement that the jurisdiction of the court was  "admitted".  On the basis of the amendment of written statement,  however, the learned Additional District Judge framed an additional  issue as under : "Whether Delhi Civil court has jurisdiction to try and  entertain the present suit: OPD"?    

        After hearing the parties, the trial court by an order dated May 25,  1998 upheld the contention of the defendants and ruled that Delhi Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

had no jurisdiction to try the suit.  The plaint was, therefore, ordered to  be returned to the plaintiff for presentation to the proper court.         The Court stated;          "In this view of the matter, I have no hesitation in coming to  the conclusion that the suit falls within the ambit of Section 16(d)  of the Code of Civil Procedure and the proviso thereto has no  application on the facts of the present case.

       In view of my above discussion, it is held that the Delhi  Civil Court has no jurisdiction to try the present suit and as such,  the Plaint in the present suit is returned to the Plaintiff for  presentation in the Proper Court.  Parties through their counsel are  directed to present in the proper Court on 5.6.1998."

       Being aggrieved by the said order, the appellant approached the  High Court by filing Civil Revision Petition No. 506 of 1998 which also  came to be dismissed.  Against the said order, the appellant has  approached this Court.  Notice was issued on December 06, 1999 and  parties were directed to maintain status quo.  On April 17, 2000, leave  was granted, operation of the judgment was stayed and the Additional  District Judge, Tis Hazari, Delhi, was allowed to proceed with the suit  but it was stated that he would not deliver judgment "until further  orders".  Status quo granted earlier was ordered to be continued.  The  appeal has now come up for final hearing.

       We have heard learned counsel for the parties.           Ms. Indu Malhotra, learned counsel for the appellant contended  that the courts below have committed an error of law as well as of  jurisdiction in allowing the amendment in the written statement and in  holding that Delhi Court had no jurisdiction.  She submitted that the  defendants were having their Head Office at Delhi, the agreement had  been entered into at Delhi, payment was to be made and in fact made at  Delhi, breach of agreement took place at Delhi and hence Delhi Court  had jurisdiction to entertain the suit and the plaintiff could have  instituted the suit in Delhi Court.  It was also submitted that the parties  had agreed that the Delhi Court alone had jurisdiction in all matters  arising out of the transaction. It was urged that in the facts and  circumstances of the case, the courts below should not have exercised  discretionary jurisdiction in favour of the party who had filed a written  statement in which jurisdiction of Delhi Court had been expressly  admitted.  The written statement was filed in 1989 but an amendment  application was moved after more than eight years.  Serious prejudice  had been caused to the plaintiff due to delay on the part of the  defendants.  When the defendants had waived the objection as to  jurisdiction by specifically admitting the jurisdiction of Delhi Court,  amendment ought not to have been allowed by the trial court nor such  order could have been confirmed by the High Court.  The learned  counsel also submitted that even after the amendment was allowed and  amended written statement was filed, in the amended reply also, the  defendants had stated that the jurisdiction of the court was "admitted".   

       The counsel submitted that even on merits, no case had been made  out by the defendants.  At the most, it was a case of accrual of cause of  action in more than one court.  As Clause 28 of the agreement  specifically provided that the transaction would be subject to the  jurisdiction of Delhi Court, institution of suit in Delhi Court by the  plaintiff could not have been objected to and no order could have been  passed by the trial court holding that it had no jurisdiction and the plaint  was required to be returned to the plaintiff for presentation to the proper  court.                   Clause 28 of the agreement reads thus;

       "The Delhi High Court or Courts subordinate to it, alone  shall have jurisdiction in all matters arising out of touching

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

and/or concerning this transaction."

       Finally, it was submitted that at the time of granting leave and  admitting appeal, this Court permitted the trial court to proceed with the  matter.  Accordingly, the evidence was led by the parties and the trial is  concluded.  In view of the order of this Court, the trial court could not  deliver the judgment.  Considering the fact that the agreement was  executed in August, 1985 and more than two decades have passed, this  Court may issue necessary direction to the trial court to deliver  judgment.         Mr. Rohatgi, Senior Advocate appearing for the respondents, on  the other hand, supported the order passed by the trial court and  confirmed by the High Court. He submitted that the suit relates to  specific performance of agreement relating to immovable property.  In  accordance with the provisions of Section 16 of the Code, such suit can  be instituted where the immovable property is situate.  Admittedly the  property is situate in Gurgaon (Haryana).  Delhi Court, therefore, has no  jurisdiction to entertain the suit which is for specific performance of  agreement of purchase of a plot - immovable property - situate outside  Delhi.  According to the counsel, even if it was not contended by the  defendants that Delhi Court had no jurisdiction or there was an  admission that Delhi Court had jurisdiction, it was totally irrelevant and  immaterial.  If the court had no jurisdiction, parties by consent cannot  confer jurisdiction on it.  The counsel also submitted that this is not a  case in which two or more courts have jurisdiction and parties have  agreed to jurisdiction of one court. According to Mr. Rohatgi, Section 20  of the Code would apply where two courts have jurisdiction and the  parties agree as to jurisdiction of one such courts by restricting their right  to that forum instead of the other.   When Delhi Court had no jurisdiction  whatsoever, no reliance could be placed either on Section 20 of the Code  or on Clause 28 of the agreement.  The order passed by the trial court  and confirmed by the High Court is, therefore, legal and lawful and the  appeal deserves to be dismissed, submitted the counsel.  

       Having heard learned counsel for the parties and having  considered the relevant provisions of the Code as also the decisions cited  before us, in our opinion, the order passed by the trial court and  confirmed by the High Court deserves no interference.  As stated above,  it is an admitted fact that the suit relates to the recovery of immovable  property, a plot admeasuring 264 sq. mtrs.  in the Residential Colony \026  DLF Qutub Enclave Complex, Gurgaon.  It is not in dispute by and  between the parties that the property is situate in Haryana.  It is no doubt  true that the defendants are having their Head Office at Delhi.  It is also  true that the agreement was entered into between the parties at Delhi. It  also cannot be denied that the payment was to be made at Delhi and  some instalments were also paid at Delhi.  The pertinent and material  question, however, is in which court a suit for specific performance of  agreement relating to immovable property would lie?  

       Now, Sections 15 to 20 of the Code contain detailed provisions  relating to jurisdiction of courts.  They regulate forum for institution of  suits.  They deal with the matters of domestic concern and provide for  the multitude of suits which can be brought in different courts.  Section  15 requires the suitor to institute a suit in the court of the lowest grade  competent to try it. Section 16 enacts that the suits for recovery of  immovable property, or for partition of immovable property, or for  foreclosure, sale or redemption of mortgage property, or for  determination of any other right or interest in immovable property, or for  compensation for wrong to immovable property shall be instituted in the  court within the local limits of whose jurisdiction the property is situate.   Proviso to Section 16 declares that where the relief sought can be  obtained through the personal obedience of the defendant, the suit can be  instituted either in the court within whose jurisdiction the property is  situate or in the court where the defendant actually or voluntarily resides,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

or carries on business, or personally works for gain.  Section 17  supplements Section 16 and is virtually another proviso to that section.   It deals with those cases where immovable property is situate within the  jurisdiction of different courts.  Section 18 applies where local limits of  jurisdiction of different courts is uncertain.  Section 19 is a special  provision and applies to suits for compensation for wrongs to a person or  to movable property.  Section 20 is a residuary section and covers all  those cases not dealt with or covered by Sections 15 to 19.

       Section 16 thus recognizes a well established principle that actions  against res or property should be brought in the forum where such res is  situate.  A court within whose territorial jurisdiction the property is not  situate has no power to deal with and decide the rights or interests in  such property.  In other words, a court has no jurisdiction over a dispute  in which it cannot give an effective judgment.  Proviso to Section 16, no  doubt, states that though the court cannot, in case of immovable property  situate beyond jurisdiction, grant a relief in rem still it can entertain a suit  where relief sought can be obtained through the personal obedience of  the defendant.  The proviso is based on well known maxim "equity acts  in personam, recognized by Chancery Courts in England. Equity Courts  had jurisdiction to entertain certain suits respecting immovable  properties situated abroad through personal obedience of the defendant.   The principle on which the maxim was based was that courts could grant  relief in suits respecting immovable property situate abroad by enforcing  their judgments by process in personam, i.e. by arrest of defendant or by  attachment of his property.   

       In Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord Selborne  observed :          "The Courts of Equity in England are, and always have  been, courts of conscience operating in personam and not in rem;  and in the exercise of this personal jurisdiction they have always  been accustomed to compel the performance of contracts in trusts  as to subjects which were not either locally or ratione domicilli  within their jurisdiction.  They have done so, as to land, in  Scotland, in Ireland, in the Colonies, in foreign countries."

       The proviso is thus an exception to the main part of the section  which in our considered opinion, cannot be interpreted or construed to  enlarge the scope of the principal provision.  It would apply only if the  suit falls within one of the categories specified in the main part of the  section and the relief sought could entirely be obtained by personal  obedience of the defendant.   

       In the instant case, the proviso has no application.  The relief  sought by the plaintiff is for specific performance of agreement  respecting immovable property by directing the defendant No. 1 to  execute sale-deed in favour of the plaintiff and to deliver possession to  him.  The trial court was, therefore, right in holding that the suit was  covered by clause (d) of Section 16 of the Code and the proviso had no  application.   

       In our opinion, the submission of the learned counsel for the  appellant that the parties had agreed that Delhi Court alone had  jurisdiction in the matters arising out of the transaction has also no force.   Such a provision, in our opinion, would apply to those cases where two  or more courts have jurisdiction to entertain a suit and the parties have  agreed to submit to the jurisdiction of one court.   

       Plain reading of Section 20 of the Code leaves no room of doubt  that it is a residuary provision and covers those cases not falling within  the limitations of Sections 15 to 19.  The opening words of the section  "Subject to the limitations aforesaid" are significant and make it  abundantly clear that the section takes within its sweep all personal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

actions.  A suit falling under Section 20 thus may be instituted in a court  within whose jurisdiction the defendant resides, or carries on business, or  personally works for gain or cause of action wholly or partly arises.

       It is, no doubt true, as submitted by Ms. Malhotra that where two  or more courts have jurisdiction to entertain a suit, parties may by  agreement submit to the jurisdiction of one court to the exclusion of the  other court or courts.  Such agreement is not hit by Section 28 of the  Contract Act, 1872, nor such a contract can be said to be against public  policy.    It is legal, valid and enforceable.   

       Before more than thirty years, such question came up for  consideration before this Court in Hakam Singh v. Gamon (India) Ltd.,  (1971) 3 SCR 314.  It was the first leading decision of this Court on the  point.  There, a contract was entered into by the parties for construction  of work.  An agreement provided that notwithstanding where the work  was to be executed, the contract ’shall be deemed to have been entered  into at Bombay’ and Bombay Court ’alone shall have jurisdiction to  adjudicate’ the dispute between the parties.  The question before this  Court was whether the court at Bombay alone had jurisdiction to resolve  such dispute.   

       Upholding the contention and considering the provisions of the  Code as also of the Contract Act, this Court stated :         "By Clause 13 of the agreement it was expressly stipulated  between the parties that the contract shall be deemed to have been  entered into by the parties concerned in the city of Bombay.  In  any event the respondents have their principal office in Bombay  and they were liable in respect of a cause of action arising under  the terms of the tender to be sued in the courts of Bombay.  It is  not open to the parties by agreement to confer by their agreement  jurisdiction on a court which it does not possess under the Code.   But where two courts or more have under the Code of Civil  Procedure jurisdiction to try a suit or proceeding on agreement  between the parties that  the dispute between them shall be tried  in one of such courts is not contrary to public policy.  Such an  agreement does not contravene Section 28 of the Contract Act."                                                            (emphasis supplied)          

       Hakam Singh was followed and principle laid down therein  reiterated in several cases thereafter. (See Globe Transport Corporation  v. Triveni Engineering Works & Anr., (1983) 4 SCC 707, A.B.C.  Laminart (P) Ltd. & Anr. v. A.P. Agency, Salem, (1989) 2 SCR 1, Patel  Roadways Ltd., Bombay v. Prasad Trading Co., (1991) 4 SCC 270,  R.S.D.V. Finance Co. (P) Ltd. v.  Shree Vallabh Glass Works Ltd.,  (1993) 2 SCC 130, Angile Insulations v. Devy Ashmore India Ltd. &  Anr., (1995) 4 SCC 153, Shriram City Union Finance Corporation Ltd.  v. Rama Mishra, (2002) 9 SCC 613, New Moga Transport Co. v. United  India Insurance Co. Ltd. & Others (2004) 4 SCC 677).

       The question, however, is whether Delhi Court has jurisdiction in  the matter.  If the answer to that question is in the affirmative, the  contention of the plaintiff must be upheld that since Delhi Court has also  jurisdiction to entertain the suit and parties by an agreement had  submitted to the jurisdiction of that court, the case is covered by Section  20 of the Code and in view of the choice of forum, the plaintiff can be  compelled to approach that court as per the agreement even if other court  has jurisdiction.  If, on the other hand, the contention of the defendant is  accepted and it is held that the case is covered by Section 16 of the Code  and the proviso to Section 16 has no application, nor Section 20 would  apply as a residuary clause and Delhi Court has no jurisdiction in the  matter, the order impugned in the present appeal cannot be said to be  contrary to law.  As we have already indicated, the suit relates to specific  performance of an agreement of immovable property and for possession

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

of plot.  It is, therefore, covered by the main part of Section 16.  Neither  proviso to Section 16 would get attracted nor Section 20 (residuary  provision) would apply and hence Delhi Court lacks inherent jurisdiction  to entertain, deal with and decide the cause.            The High Court considered the submission of the plaintiff that  Delhi Court had jurisdiction to entertain the suit but negatived it.  The  Court, after referring to various decisions cited at the Bar, concluded;  

       "From the aforesaid principles laid down by the Supreme  Court it is abundantly clear that where the parties to a contract  agreed to vest jurisdiction to a particular Court although cause of  action has arisen within the jurisdiction of different Courts,  including that particular Court, the same cannot be said to be void  or to be against the public policy.  It was also made clear in the  said decision that if however a particular Court does not have any  jurisdiction to deal with the matter and no part of cause of action  has arisen within the jurisdiction of that Court, the parties by their  consent and mutual agreement cannot vest jurisdiction in the said  Court.  Therefore, a clause vesting jurisdiction on a Court which  otherwise does not have jurisdiction to decide the matter, would  be void as being against the public policy."

       We are in agreement with the above observations and hold that  they lay down correct proposition of law.

       Ms. Malhotra, then contended that Section 21 of the Code,  requires that the objection to the jurisdiction must be taken by the party  at the earliest possible opportunity and in any case where the issues are  settled at or before settlement of such issues.  In the instant case, the suit  was filed by the plaintiff in 1988 and written statement was filed by the  defendants in 1989 wherein jurisdiction of the court was ’admitted’.  On  the basis of the pleadings of the parties, issues were framed by the court  in February, 1997.  In view of the admission of jurisdiction of court, no  issue as to jurisdiction of the court was framed.  It was only in 1998 that  an application for amendment of written statement was filed raising a  plea as to absence of jurisdiction of the court.  Both the courts were  wholly wrong in allowing the amendment and in ignoring Section 21 of  the Code.  Our attention in this connection was invited by the learned  counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein  Petroleum Co. v. Pappu, 1966 (1) SCR 461.

       We are unable to uphold the contention.  The jurisdiction of a  court may be classified into several categories.  The important categories  are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)  Jurisdiction over the subject matter.   So far as territorial and pecuniary  jurisdictions are concerned, objection to such jurisdiction has to be taken  at the earliest possible opportunity and in any case at or before settlement  of issues.  The law is well settled on the point that if such objection is not  taken at the earliest, it cannot be allowed to be taken at a subsequent  stage.  Jurisdiction as to subject matter, however, is totally distinct and  stands on a different footing.  Where a court has no jurisdiction over the  subject matter of the suit by reason of any limitation imposed by statute,  charter or commission, it cannot take up the cause or matter.  An order  passed by a court having no jurisdiction is nullity.

       In Halsbury’s Laws of England, (4th edn.), Reissue, Vol. 10; para  317; it is stated;  

       317.    Consent and waiver.  Where, by reason of any  limitation imposed by statute, charter or commission, a court  is without jurisdiction to entertain any particular claim or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

matter, neither the acquiescence nor the express consent of  the parties can confer jurisdiction upon the court, nor can  consent give a court jurisdiction if a condition which goes to  the jurisdiction has not been performed or fulfilled.  Where  the court has jurisdiction over the particular subject matter of  the claim or the particular parties and the only objection is  whether, in the circumstances of the case, the court ought to  exercise jurisdiction, the parties may agree to give  jurisdiction in their particular case; or a defendant by  entering an appearance without protest, or by taking steps in  the proceedings, may waive his right to object to the court  taking cognizance of the proceedings.  No appearance or  answer, however, can give jurisdiction to a limited court, nor  can a private individual impose on a judge the jurisdiction or  duty to adjudicate on a matter.  A statute limiting the  jurisdiction of a court may contain provisions enabling the  parties to extend the jurisdiction by consent."

       In Bahrein Petroleum Co., this Court also held that neither consent  nor waiver nor acquiescence can confer jurisdiction upon a court,  otherwise incompetent to try the suit.  It is well-settled and needs no  authority that ’where a court takes upon itself to exercise a jurisdiction it  does not possess, its decision amounts to nothing.’  A decree passed by a  court having no jurisdiction is non-est and its validity can be set up  whenever it is sought to be enforced as a foundation for a right, even at  the stage of execution or in collateral proceedings.  A decree passed by a  court without jurisdiction is a coram non judice.  

       In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954  SC 340, this Court declared;  

       "It is a fundamental principle well established that a decree  passed by a court without jurisdiction is a nullity and that its  invalidity could be set up whenever and it is sought to be enforced  or relied upon, even at the stage of execution and even in  collateral proceedings.  A defect of jurisdiction \005 strikes at the  very authority of the court to pass any decree, and such a defect  cannot be cured even by consent of parties." (emphasis supplied)

       The case on hand relates to specific performance of a contract and  possession of immovable property.  Section 16 deals with such cases and  jurisdiction of competent court where such suits can be instituted.  Under  the said provision, a suit can be instituted where the property is situate.   No court other than the court where the property is situate can entertain  such suit.  Hence, even if there is an agreement between the parties to the  contract, it has no effect and cannot be enforced.

        In Setrucharlu v. Maharaja of Jeypore, 46 IA 151 : AIR 1919 PC  150, a suit was instituted in subordinate court for possession of mortgage  property partly situated in Vizagapatam and partly in a Schedule District  to which the provisions of the Code did not apply.  No objection as to  jurisdiction of the court was taken by the defendant and the decree was  passed.  In appeal, however, such objection was taken by the defendant.   Relying on Section 21 of the Code, the High Court overruled the  objection.  The defendant approached the Privy Council.  Upholding the  contention and partly reversing the decree, the Judicial Committee of the  Privy Council stated;         "The learned Judges of the Court of Appeal thought that the  matter was met by Section 21 of the Code, which provides that no  objection as to the place of suing shall be allowed by any appellate  court unless the objection was taken in the court of First Instance,  which in this case had admittedly not been done.  Their Lordships  cannot agree with this view.  This is not an objection as to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

place of suing; it is an objection going to the nullity of the order  on the ground of want of jurisdiction."            (emphasis supplied)

       In New Mofussil Co. Ltd. & Another v. Shankerlal Narayandas  Mundade, AIR 1941 Bom 247 : ILR 1941 Bom 361, almost a similar  question came up for consideration before the High Court of Bombay.   In that case, a suit for specific performance of contract and possession of  immovable property situated at Dhulia was filed in the Court of First  Class Subordinate Judge, Dhulia against defendant No. 1 \026 Company in  liquidation.  The registered office of the Company was in Bombay and  the agreement was finally concluded in Bombay.  It was, therefore,  contended that Dhulia Court had no jurisdiction to try the suit.  It was,  however, held by the High Court that the case was covered by Clause (d)  of Section 16 of the Code, the Proviso had no application and since the  property was situated at Dhulia, Subordinate Judge, Dhulia had  jurisdiction to entertain and try the suit.  (See also Anand Bazar Patrika  Ltd. v. Biswanath Prasad, AIR 1986 Pat 57)

       In the instant case, Delhi Court has no jurisdiction since the  property is not situate within the jurisdiction of that court.  The trial court  was, therefore, right in passing an order returning the plaint to the  plaintiff for presentation to the proper court.  Hence, even though the  plaintiff is right in submitting that the defendants had agreed to the  jurisdiction of Delhi Court and in the original written statement, they had  admitted that Delhi Court had jurisdiction and even after the amendment  in the written statement, the paragraph relating to jurisdiction had  remained as it was, i.e. Delhi Court had jurisdiction, it cannot take away  the right of the defendants to challenge the jurisdiction of the court nor it  can confer jurisdiction on Delhi Court, which it did not possess.  Since  the suit was for specific performance of agreement and possession of  immovable property situated outside the jurisdiction of Delhi Court, the  trial court was right in holding that it had no jurisdiction.

       The learned counsel for the appellant drew out attention to Rule 32  of Order XXI of the Code which relates to execution.  It, however,  presupposes a decree passed in accordance with law.  Only thereafter  such decree can be executed in the manner laid down in Rules 32, 34 or  35 of Order XXI.  Those provisions, therefore, have no relevance to the  question raised in the present proceedings.                  For the foregoing reasons, in our opinion, no case has been made  out by the appellant against the order passed by the trial court and  confirmed by the High Court. The appeal, therefore, deserves to be  dismissed and is accordingly dismissed.  In the facts and circumstances  of the case, however, there shall be no order as to costs.