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PETITIONER: KOOPILAN UNEEN’S DAUGHTER PATHUMMA & ORS.

       Vs.

RESPONDENT: KOOPILAN UNEEN’S SON KUNTALAN KUTTY DEAD BY LRS. & ORS,

DATE OF JUDGMENT06/08/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1981 AIR 1683            1982 SCR  (1) 183  1981 SCC  (3) 589        1981 SCALE  (3)1240

ACT:      Venue-Objection to the place of suing to be entertained by Appellate or Revisional Court, condition to be fulfilled, explained-Code of Civil Procedure, section 21(1).

HEADNOTE:      In a  suit for partition of immovable property filed in the Court  of Munsiff  Parappanangadi in  the year 1938 that Court passed  a preliminary decree for partition on the 18th February, 1940.  The parties  to the  suit took  no  further interest in  the matter  for more  than two  decades. In the meantime according  to the order of the High Court of Kerala dated December  22, 1956  refining the territorial limits of the Courts  of Munsiffs  functioning in district Calicut, of which the  Court of  Munsiff at  Parappanangadi was one, the suit property came under the territorial jurisdiction of the Munsiff’s Court  at  Manjeri.  The  plaintiff  on  the  18th January, 1966  filed an  application praying  that  a  final decree the suit be passed. Defendant No. 12 immediately took an objection  that the  Manjeri  Court  had  no  territorial jurisdiction to  hear the  application and  that the  matter should have  been  agitated  in  the  Court  of  Munsiff  at Parappanagadi. The  objection was  overruled by  the Manjeri Court which  proceeded to  partition the  property metes and bounds and  ultimately passed  a final decree in that behalf on 9th  July, 1968. An appeal filed against the final decree by defendant  No. 12 failed, but he succeeded before learned single Judge  of the Kerala High Court who ruled that it was only the  Parappanangadi  Court  that  had  the  territorial jurisdiction to  entertain the  application  and  the  final decree was set aside. Hence the appeal by special leave.      Allowing the appeal, the Court ^      HELD: 1:1.  In order  that an objection to the place of suing may  be entertained  by any  appellate  or  revisional Court, the  fulfilment of  the following three conditions is essential, according  to the  provisions contained  in  sub- section (1)  of section  21 of  the Code of Civil Procedure: (i) The  objection was taken in the Court of first instance; (ii) it  was taken  at the earliest possible opportunity and in  case  where  issues  are  settled,  at  or  before  such

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settlement; (iii)  there has  been a  consequent failure  of justice. [185 F-G]      1:2. In the present case conditions Nos. 1 and 2 are no doubt fully  satisfied; but  before the two appellate Courts below could  allow the objection to be taken, it was further necessary that  a case  of failure  of justice on account of the place  suing having  been wrongly selected was made out. Since the  respondents failed  to point out even before this Court that a failure of justice had occurred by reason 184 of Manjeri  having been  chosen as  the place  of suing, the provisions of  sub-section (1)  of section 21 of the Code of Civil Procedure  made it  imperative for  the District Court and the  High Court  not to entertain the objection, whether or not it was otherwise well founded. [185 H, 186 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 564 of 1970.      Appeal by  special leave  from the  judgment and decree dated the  3rd April,  1969 of the Kerala High Court in S.A. No. 266 of 1968.      A.S. Nambiyar for the Appellants.      K.T. Harindra Nath, N. Sudhakaran and M.R.K. Pillai for Respondent No. 1.      The Judgment of the Court was delivered by      KOSHAL, J.  This appeal  by special  leave is  directed against the  judgment dated  3rd of  April, 1969 of the High Court of  Kerala rendered  in a Second Appeal arising from a suit for partition of immovable property.      2. The  suit was  filed in  the  Court  of  Munsiff  at Parappanangadi  in  the  year  1938.  That  Court  passed  a preliminary decree  for partition on the 18th February, 1940 and thereafter  the parties  took no further interest in the matter for  more than two decades. In the mean time the High Court passed an order dated December 22, 1956 redefining the territorial limits  of the Courts of Munsiffs functioning in district  Calicut,   of  which   the  Court  of  Munsiff  at Parappanangadi  was   one.  According   to  that  order  the territory in  which the  property disputed  in the  suit was situated, came  under the  territorial jurisdiction  of  the Munsiff’s Court at Manjeri and it was in that Court that the plaintiff filed,  on the  18th January,  1966 an application (I.A. No.  109 of  1966) praying  that a final decree in the suit be  passed. Defendant  No. 12  (who is  now dead and is represented in  this appeal  by respondents  No. 1 and Ors.) immediately took  an objection that the Manjeri Court had no territorial jurisdiction  to hear  the application  and that the matter should have been agitated in the Court of Munsiff at Parappananagadi.  The  objection  was  overruled  by  the Manjeri Court  which proceeded  to partition the property by metes and  bounds and  ultimately passed  a final  decree in that behalf on 9th July, 1968. An appeal was filed 185 against final  decree by  defendant No.  12 in  the Court of District Judge before whom the objection to the jurisdiction assumed by  the  Manjeri  Court  was  again  taken  but  was repelled  with   the  result   that  the  final  decree  was confirmed.      The third  round of litigation in regard to question of jurisdiction took  place in the High Court wherein a learned single Judge upheld the objection and ruled that it was only the  Parappanangadi   Court   that   had   the   territorial

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jurisdiction to  entertain the application praying for final decree and  that the  assumption of such jurisdiction by the Manjeri Court was not justified. The objection being upheld, the final  decree was  set  aside  and  there  was  thus  no occasion for  the High  Court to  decide  the  other  points arising in this appeal.      3. We have heard learned counsel for the parties on the question of  jurisdiction. An  unfortunate  aspect  of  this litigation has  been that  although that  question has  been agitated already  in three  courts  and  has  been  bone  of contention between  that parties for more than a decade, the real provision  of law  which  clinches  it  was  never  put forward on  behalf  of  the  appellant  before  us  nor  was adverted to by the learned District Judge or the High Court. That provision is contained in sub-section (1) of Section 21 of the Code of Civil Procedure which runs thus:           "21 (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  are settled, at or before such      settlement, and  unless there  has  been  a  consequent      failure of justice."      In order that an objection to the place of suing may be entertained  by   an  appellate  or  revisional  court,  the fulfilment of the following three conditions is essential:      (1)  The objection  was taken  in the  Court  of  first           instance.      (2)  It was  taken at the earliest possible opportunity           and in  cases where  issues  are  settled,  at  or           before such settlement.      (3)  There has been a consequent failure of justice.      All these  three conditions  must co-exist.  Now in the present case  conditions Nos.  1 and  2 are  no doubt  fully satisfied; but then 186 before the  two  appellate  Courts  below  could  allow  the objection to  be taken, it was further necessary that a case of failure  of justice  on account  of the  place  of  suing having been  wrongly selected  was made out. Not only was no attention paid  to this aspect of the matter but no material exists on  the record from which such failure of justice may be  inferred.   We  called  upon  learned  counsel  for  the contesting respondents to point out to us even at this stage any reason  why we should hold that a failure of justice had occurred by  reason of  Manjeri having  been chosen  as  the place of suing but he was unable to put forward any. In this view of  the matter we must hold that the provisions of sub- section above  exracted made  it imperative for the District Court and  the High  Court not  to entertain  the  objection whether or not it was otherwise well founded. We, therefore, refrain from  going into  the question of the correctness of finding arrived  at by the High Court that the Manjeri Court had territorial  jurisdiction  to  take  cognizance  of  the application praying for final decree.      4. In  the result  we accept  the appeal, set aside the judgment of  the High  Court and  remand the case back to it for deciding  on merits  the appeal which culminated in that judgment. As  the proceedings for the final decree have been pending since  1966, we  further direct  that the High Court shall decide  the appeal  last  mentioned  at  the  earliest possible and,  in any  case, within  three months  from  the receipt of  the records  from this Court. The Registry shall take immediate  steps to  have the records despatched to the High Court. There will be no order as to costs.

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S.R.                                         Appeal allowed. 187