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CASE NO.: Appeal (civil)  4110 of 2007

PETITIONER: Y.A. Ajit

RESPONDENT: Sofana Ajit

DATE OF JUDGMENT: 07/09/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  4110 OF 2007 (Arising out of S.L.P. (C) No. 15646 of 2004

Dr. ARIJIT PASAYAT, J.

        1.      Leave granted.

2.      Challenge in this appeal is to the legality of judgment  rendered by a learned Single Judge of the Madas High Court  allowing the transfer petition filed by the respondent in terms  of Section 24 of the Code of Civil Procedure, 1908 (in short the  ’CPC’). By the transfer petition the respondent had sought for  transfer of IDOP No.46 of 2003 pending in the Court of District  Judge, Kanyakumari at Nagercoil to the Court of Family  Judge, Chennai. The High Court accepted the prayer.   

3.      Learned counsel for the appellant submitted that  between the parties there was an earlier proceeding which  came before this Court in Y. Abraham Ajith and Ors. v.  Inspector of Police, Chennai and Anr. (2004 (8) SCC 100).  It is  submitted that in view of what has been stated in the said  case the impugned order cannot be maintained.  Learned  counsel for the respondent on the other hand supported the  order of the High Court.

4.      In Y. Abraham Ajith’s case (supra) it was, inter alia,  observed as follows:         "All crime is local, the jurisdiction over  the crime belongs to the country where the  crime is committed", as observed by  Blackstone. A significant word used in Section  177 of the Code of Criminal Procedure, 1973  (in short the ’Code’) is "ordinarily". Use of the  word indicates that the provision is a general  one and must be read subject to the special  provisions contained in the Code. As observed  by the Court in Purushottamdas Dalmia v.  State of West Bengal (AIR 1961 SC 1589),  L.N.Mukherjee V. State of Madras (AIR 1961  SC 1601), Banwarilal Jhunjhunwalla and Ors.  v. Union of India and Anr. (AIR 1963 SC 1620)  and Mohan Baitha and Ors. v. State of Bihar  and Anr. (2001 (4) SCC 350), exception implied  by the word "ordinarily" need not be limited to  those specially provided for by the law and

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exceptions may be provided by law on  consideration or may be implied from the  provisions of law permitting joint trial of  offences by the same Court. No such exception  is applicable to the case at hand.  

As observed by this Court in State of  Bihar v. Deokaran Nenshi and Anr. (AIR 1973  SC 908), continuing offence is one which is  susceptible of continuance and is  distinguishable from the one which is  committed once and for all, that it is one of  those offences which arises out of the failure to  obey or comply with a rule or its requirement  and which involves a penalty, liability  continues till compliance, that on every  occasion such disobedience or non-compliance  occurs or recurs, there is the offence  committed.

A similar plea relating to continuance of  the offence was examined by this Court in  Sujata Mukherjee (Smt.) v. Prashant Kumar  Mukherjee (1997 (5) SCC 30).  There the  allegations related to commission of alleged  offences punishable under Sections 498A, 506  and 323 IPC.  On the factual background, it  was noted that though the dowry demands  were made earlier, the husband of the  complainant went to the place where  complainant was residing and had assaulted  her. This Court held in that factual  background that clause (c) of Section 178 was  attracted.  But in the present case the factual  position is different and the complainant  herself left the house of the husband on  15.4.1997 on account of alleged dowry  demands by the husband and his relations.   There is thereafter not even a whisper of  allegations about any demand of dowry or  commission of any act constituting an offence  much less at Chennai.  That being so, the logic  of Section 178 (c) of the Code relating to  continuance of the offences cannot be applied.  

The crucial question is whether any part  of the cause of action arose within the  jurisdiction of the concerned Court.  In terms  of Section 177 of the Code it is the place where  the offence was committed.  In essence it is the  cause of action for initiation of the proceedings  against the accused.

While in civil cases, normally the  expression "cause of action" is used, in  criminal cases as stated in Section 177 of the  Code, reference is to the local jurisdiction  where the offence is committed. These  variations in etymological expression do not  really make the position different. The  expression "cause of action" is therefore not a  stranger to criminal cases.  

It is settled law that cause of action  consists of bundle of facts, which give cause to

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enforce the legal inquiry for redress in a court  of law.  In other words, it is a bundle of facts,  which taken with the law applicable to them,  gives the allegedly affected party a right to  claim relief against the opponent. It must  include some act done by the latter since in  the absence of such an act no cause of action  would possibly accrue or would arise.

The expression "cause of action" has  acquired a judicially settled meaning.  In the  restricted sense cause of action means the  circumstances forming the infraction of the  right or the immediate occasion for the action.   In the wider sense, it means the necessary  conditions for the maintenance of the  proceeding including not only the alleged  infraction, but also the infraction coupled with  the right itself.  Compendiously the expression  means every fact, which it would be necessary  for the complainant to prove, if traversed, in  order to support his right or grievance to the  judgment of the Court.  Every fact, which is  necessary to be proved, as distinguished from  every piece of evidence, which is necessary to  prove such fact, comprises in "cause of action".

The expression "cause of action" has  sometimes been employed to convey the  restricted idea of facts or circumstances which  constitute either the infringement or the basis  of a right and no more. In a wider and more  comprehensive sense, it has been used to  denote the whole bundle of material facts.   The expression "cause of action" is  generally understood to mean a situation or  state of facts that entitles a party to maintain  an action in a court or a tribunal; a group of  operative facts giving rise to one or more bases  for sitting; a factual situation that entitles one  person to obtain a remedy in court from  another person.  (Black’s Law Dictionary a  "cause of action" is stated to be the entire set  of facts that gives rise to an enforceable claim;  the phrase comprises every fact, which, if  traversed, the plaintiff must prove in order to  obtain judgment.  In "Words and Phrases" (4th  Edn.) the meaning attributed to the phrase  "cause of action" in common legal parlance is  existence of those facts, which give a party a  right to judicial interference on his behalf.

5.      In Halsbury Laws of England (Fourth Edition) it has been  stated as follows:

"Cause of action" has been defined as meaning  simply a factual situation the existence of  which entitles one person to obtain from the  Court a remedy against another person.  The  phrase has been held from earliest time to  include every fact which is material to be  proved to entitle the plaintiff to succeed, and  every fact which a defendant would have a

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right to traverse.  "Cause of action" has also  been taken to mean that particular act on the  part of the defendant which gives the plaintiff  his cause of complaint, or the subject matter of  grievance founding the action, not merely the  technical cause of action".

6.      No doubt the decision was rendered in the background of  the Code, they have relevance so far as the present dispute is  concerned.

7.      In view of what has been stated in the aforesaid case, it  would be appropriate for the High Court to re-consider the  matter. The appeal is accordingly disposed of without any  order as to costs.