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2005 DIGILAW 628 (GAU)

Debasish Basu v. Jayanta Bikash Dhar

2005-08-26

B.P.KATAKEY

body2005
B.P. KATAKEY, J.— This revision petition is directed against the order dated 28.2.2005 passed by the learned Civil Judge (Senior Division), North Tripura, Kilashahar in Money Suit No. 2 of 2003 di recting that the question of territorial jurisdic tion raised by the defendant revision-petitioner shall be decided at the time of final hearing after taking evidence from both the sides. 2. The fact leading to the filing of the present revision petition is that the respon dent filed Money Suit No. 2 of 2003 against the petitioner as defendant in the court of Civil Judge (Senior Division), North Tripura, Kailashahar praying for passing a decree for Rs. 4,30,000/- along with further compensa tion @ 18% per annum against the outstand ing dues/debts payable by the defendant to the plaintiff, stating, inter alia, therein that the defendant issued a cheque dated 18.2.2000 in favour of the plaintiff on State Bank of In dia, Kailashahar Branch amounting to Rs. 4,30,000/-, which cheque was bounced on 2.6.2000. It has further been averred in the plaint that the plaintiff also instituted a crimi nal case in the Court of the learned Chief Ju dicial Magistrate, Agartala West Tripura un der Section 138 of the Negotiable Instrument Act read with Section 420 of Indian Penal Code, which was registered as C.R. Case No. 2344 of 2000. The defendant (revision-petitioner), on receipt of the summons, en tered appearance and filed an application under Section 21 of the Code of Civil Proce dure praying for return of the plaint under Order 7 Rule 10 of the Code of Civil Proce dure, as the learned civil court at Kailashahar has no territorial jurisdiction to try the suit. The learned trial Court thereafter, upon hear ing the learned counsel for the parties, has passed the impugned order dated 28.2.2005 and hence the present revision petition. 3. I have heard Mr. S. Deb, the learned senior counsel assisted by Mr. R.B. Sinha, the learned counsel appearing on behalf of the petitioner and Mr. D.B. Sengupta, the learned senior counsel assisted by Mrs. K. Majumder, the learned counsel appearing on behalf of the respondent. 4. Mr. 3. I have heard Mr. S. Deb, the learned senior counsel assisted by Mr. R.B. Sinha, the learned counsel appearing on behalf of the petitioner and Mr. D.B. Sengupta, the learned senior counsel assisted by Mrs. K. Majumder, the learned counsel appearing on behalf of the respondent. 4. Mr. Deb, the learned senior counsel appearing on behalf of the petitioner has sub mitted that it is an admitted position of fact, as is evident from the averments made in the plaint, that the plaintiff, who is the respondent in the present revision petition, also instituted a criminal case at Agartala. In the said crimi nal case the plaintiff, who is the complainant^ has stated that the occurrence took place at Agartala. Mr. Deb has also submitted that it is evident from the deposition of the claimant in the said criminal case that the occurrence took place at Agartala According to Mr. Deb, since the respondent-plaintiff has specifically stated in the criminal case that the occurrence took place in Agartala, the civil court at Kailashahar has no territorial jurisdiction to admit the plaint and try the suit as both the criminal case as well as the civil suit arise out of the same transaction. Mr. Deb has further submitted that the learned court below has failed to exercise its jurisdiction vested in it by law in not deciding the application under Section 21 of the Code of Civil Procedure and in keeping the said question of jurisdic tion open for disposal at the time of final hear ing upon examination of the witnesses. Ac cording to Mr. Deb, as the said application has been filed by the defendant under Sec tion 21 of the Code of Civil Procedure, the learned court below has to give a decision on the said application and cannot postpone con sideration of the said issue relating to the ques tion of jurisdiction to a future date. Mr. Deb, in support of his contention, has placed reli ance of Arun Aganval Vs. Nagreeka Ex ports (P) Ltd. &Anr. reported in (2002) 10 SCC, 101, Saleem Bhai & Ors. Vs. State of Maharashtra & Ors. reported in (2003)1 SCC 55 7 and Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors. reported in (2004) 3 SCC 137 . 5. Mr. Nagreeka Ex ports (P) Ltd. &Anr. reported in (2002) 10 SCC, 101, Saleem Bhai & Ors. Vs. State of Maharashtra & Ors. reported in (2003)1 SCC 55 7 and Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors. reported in (2004) 3 SCC 137 . 5. Mr. D.B. Sengupta, the learned senior counsel appearing on behalf of the respon dent, on the other hand, has submitted that the defendant by filling the application under Section 21 of the Code of Civil Procedure has raised the question of territorial jurisdic tion solely on the basis of the statement made in the complaint case filed in the criminal court as well as the deposition of the complainant's witnesses recorded in the said criminal case and not on the basis of the averments made in the plaint and, therefore, the learned court below has rightly held that the question of ter ritorial jurisdiction can only be decided after taking evidence of both the parties on that point and hence no illegality has been com mitted by keeping the point of territorial ju risdiction open till that stage. According to Mr. Sengupta, the criminal court will assume the jurisdiction on the basis of the place of occurrence but on the other hand the civil court will have the jurisdiction to entertain and try a suit if any of the conditions enumerated in Section 20 of the Code of Civil Procedure is fulfilled. According to Mr. Sengupta, since the defendant issued the cheque on State Bank of India, Kailashahar Branch, which cheque was bounced, the cause of action partly arose at Kaliashahar i.e. within the territorial jurisdiction of the learned Civil Judge (Senior Di vision), North Tripura at Kailashahar. 6. I have considered the submissions of the learned counsel for the parties and perused the materials made available. 7. A suit being Money Suit No. 2 of 2003 was filed by the present respondent as plain tiff against the present revision-petitioner as defendant in the Court of the learned Civil Judge (Senior Division), North Tripura, Kailashahar praying for a decree for a sum of Rs. 4,30,000/- with further compensation @ 18% per annum on the said amount. In the plaint filed in the suit it has been averred by the plaintiff that the plaintiff is entitled to a sum of Rs. 4,30,000/- with further compensation @ 18% per annum on the said amount. In the plaint filed in the suit it has been averred by the plaintiff that the plaintiff is entitled to a sum of Rs. 4,30,000/- being the outstanding/debts from the defendant for which a cheque bear ing No. CA/100-833411 dated 18.2.2000 was issued on the State Bank of India, Kailashahar Branch in favour of the plaintiff. The said cheque was presented by the plain tiff through his banker i.e. Bank of Baroda, Agartala Branch but the State Bank of India, Kailashahar Branch refused to make payment due to insufficiency of amount in the credit of the defendant in his account. It has further been stated in the said plaint that a criminal case being C.R. Case No. 2344 of 2002 has also been instituted by the plaintiff as complainant against the defendant as accused in the Court of learned Judicial Magistrate, Agartala, West Tripura under Section 138 of the Negotiable Instrument Act read with Section 420 of the Indian Penal Code. In para 9 of the plaint it has been stated that the cause of action for filing of the suit arose with effect from 18.2.2000 i.e. the date when the cheque was issued and within the jurisdiction of that court. 8. The defendant revision-petitioner, on receipt of the summons, filed an application under Section 21 of the Code of Civil Proce dure stating that the civil court at Kailashahar has no territorial jurisdiction to entertain and try the suit and, therefore, the plaint should be returned to the plaintiff under Order 7 Rule 10 of the Code of Civil Procedure for filing it in the appropriate court having territorial ju risdiction. In the said application under Sec tion 21 of the Code of Civil Procedure the plea of having no territorial jurisdiction has been raised by the defendant revision-peti tioner basically on the ground that the plaintiff as complainant filed a criminal case in Agartala on the basis of the statement made by the witnesses of the complainant in the said crimi nal case. It is evident from the averments made in the application under Section 21 of the Code of Civil Procedure that the defendant has challenged the territorial jurisdiction of the civil court at Kailashahar solely on the basis of the deposition of the witnesses examined in the criminal case. It is evident from the averments made in the application under Section 21 of the Code of Civil Procedure that the defendant has challenged the territorial jurisdiction of the civil court at Kailashahar solely on the basis of the deposition of the witnesses examined in the criminal case. The learned court below, upon consideration of the application filed and on hearing the learned counsel for the par ties, has decided to take up the issue relating to the territorial jurisdiction at a latter point of time i.e. at the time of final hearing of the suit and after examination of the witnesses as the court below has found that for deciding the issue relating to the territorial jurisdiction, evi dence is required to be adduced, as the sole basis of the application under Section 21 of the Code of Civil Procedure filed by the de fendant is the deposition of witnesses exam ined in the criminal case and not on the basis of the averments made in the plaint. 9. Section 15 of the Code of Civil Proce dure provides that every suit shall be insti tuted in the Court of the lowest grade com petent to try it. Section 16 of the said Code provides that subject to the pecuniary or other limitations prescribed by any law, suits for the recovery of immovable property, for the par tition of immovable property, for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, for the determination of any other right to or in terest in immovable property, for compensa tion for wrong to immovable property and for the recovery of movable property actually un der distraint or attachment shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Section 17 of the said, code provides that in case of a suit relating to the immovable property situ ate within the jurisdiction of different Courts, the suit maybe instituted in any Court within the local limits of whose jurisdiction any por tion of the property is situate. Section 17 of the said, code provides that in case of a suit relating to the immovable property situ ate within the jurisdiction of different Courts, the suit maybe instituted in any Court within the local limits of whose jurisdiction any por tion of the property is situate. Section 18 of the said Code provides that in case where it is uncertain within the local limits of the juris diction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon pro ceed to entertain and dispose of any suit re lating to that property. The present case re lates to claim for the money due by the de fendant to the plaintiff. Therefore, the provi sion of Section 20 of the said Code is at tracted which is quoted below: "20. Other suits to be instituted where de fendants reside or cause of action arises : Subject to the limitations aforesaid, every suit shall be instituted in a Court within the lo cal limits of whose jurisdiction- (a) The defendant, or each of the defen dants where there are more than one, at the time of the commencement 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 vol untarily resides, or carries on business, for personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not acquiesce in such institution; or (c) The cause of action, wholly or in part, arises." 10. It is, therefore, evident that a suit can be instituted in a court within whose local limits the defendant resides or carries on business, or personally works for gain or any of the defendants, where there are more than one reside, or carries on business, or personally works for gain, provided the leave is taken from that Court or the cause of action wholly or in part, arises. 11. Chapter XIII of the Code of Criminal Procedure provides for jurisdiction of the criminal courts in inquiries and trials. 11. Chapter XIII of the Code of Criminal Procedure provides for jurisdiction of the criminal courts in inquiries and trials. The jurisdiction of the criminal court to make an en quiry and trial, as the civil court assumes the jurisdiction to entertain and try a suit even in a place where the cause of action arose partly. The criminal court assumes the jurisdiction where the occurrence took place. 12. In the instant case, as the sole basis of the defendant revision-petitioner raising the question of territorial jurisdiction of the civil court at Kailashahar, is the deposition of the witnesses examined in the criminal case and not on the basis of the statement made in the plaint, the learned trial court has rightly de cided to take up the issue relating to the terri torial jurisdiction at a later point of time, as it requires examination of witnesses, to decide as to whether the civil court at Kalishahar has the jurisdiction to try the suit. The said issue relating to the territorial jurisdiction cannot be decided without framing the issue on the point of jurisdiction and by taking evidence on the said issue. In Arun Agarwal (supra), the Apex Court while dealing with a case relating to the jurisdiction of the High Court to entertain and decide a suit with leave under clause XII of the Letters Patent before the High Court of Calcutta on its original side, has held that when the jurisdiction of the High Court to entertain V such application is in question, the High Court ought to have decided the question of juris diction as a preliminary issue. The fact of the said case is not applicable in the instant case as the defendant has raised the question of territorial jurisdiction of the civil court at Kailashahar only on the basis of the deposi tion of the witnesses examined in a criminal case and, therefore, such question of territorial jurisdiction of the Court cannot be de cided without taking evidence and before fil ing the written statement. 13. The Apex Court in Saleem Bhai and Ors. 13. The Apex Court in Saleem Bhai and Ors. (supra) while considering an application under Order 7 Rule 11 of the Code of Civil Procedure has held that while deciding an application under the said provision, the Court is required to look into the averments in the complaint and the trial court can exercise the power under the said provision at any stage of the proceeding and, therefore, it was held that as the trial court has refused to decide the said application under Order 7 Rule 11 of Code of Civil Procedure and kept it pending until filing of the written statement, a jurisdictional error has been committed by the trial court by non exercising the jurisdiction vested in the court. In Sopan Sukhdeo Sable & Ors. (supra) the Apex Court relying on Saleem Bhai's case (supra) has also taken the same view. 14. In the present case in hand, the peti tioner has not filed an application under Or der 7 Rule 11 of Code of Civil Procedure stating that the plaint should be rejected on any of the grounds enumerated therein, but has filed an application under Section 21 of the Code of Civil Procedure questioning the territorial jurisdiction of the civil court at Kailashahar on the ground that a criminal pro ceeding has been instituted in Agartala and without making any reference to the averments made in the plaint. As the said application under Section 21 of the Code of Civil Proce dure was filed on the basis of the deposition of the witnesses recorded in the criminal case, the learned trial court has rightly held that before deciding the issue relating to the terri torial jurisdiction the evidence is required to be adduced as the evidence recorded in a criminal case cannot be the basis for deciding any issue in a civil proceeding. Therefore, the decisions of the Apex Court in Saleem Bhai case and Sopan Sukhdeo Sable case are not applicable in the instant case. 15. Hence I do not find any merit in the revision petition filed by the petitioner and, therefore, the same is dismissed.