Nageen Prakashan Pvt. Ltd. ,Thru. Mohit Jain,M. D. v. Vishwa Nath Shukla
2016-08-08
ATTAU RAHMAN MASOODI
body2016
DigiLaw.ai
JUDGMENT Attau Rahman Masoodi, J. Heard learned Counsel for the revisionist and Sri Arun Kumar Jaiswal, learned Counsel for the plaintiff / opposite party. 2. This civil revision filed under Section 115 of the Code of Civil Procedure is directed against an order dated 06.07.2016 passed by the court below in Regular Suit No. 612 of 2016 rejecting the application filed by the revisionist under Order VII Rule 11 of the Code of Civil Procedure whereby maintainability of the civil suit on the ground of territorial jurisdiction has been questioned. 3. The precise objection in the application filed under Order VII Rule 11 of the Code of Civil Procedure is to the effect that the cause of action to the plaintiff has arisen at Merrut but the same cannot be said to have arisen within the territorial limits of Lucknow looking to the averments made in the plaint. This specific objection is gathered sufficiently from the averments made in the objections filed under Order VII Rule 11 of the Code of Civil Procedure wherein reference to Section 20 of the Civil Code has also been made. 4. In reply to the objection raised, the plaintiff / opposite party took a stand that the objection so raised on the strength of Section 20 is misconceived which does not constitute a valid ground within the scope of Order VII Rule 11 of the Code of Civil Procedure and merely on such an objection, the plaint can not be rejected out right. It is also averred that the objection of territorial jurisdiction which constitutes a mixed question of fact and law the suit would not be barred. 5. Parties have argued at length. It was vehemently argued on behalf of the revisionist that accrual of cause of action and its territorial jurisdiction are two distinct aspects and what is considered by the court below is the question as regards cause of action which is said to be a mixed question of fact and law that may be gone into after exchange of pleadings but at the same time a contradictory finding has been recorded in the impugned order to the effect that the cause of action has accrued to the plaintiff at Lucknow. The finding on the territorial jurisdiction of the civil court at Lucknow is wholly unfounded. 6.
The finding on the territorial jurisdiction of the civil court at Lucknow is wholly unfounded. 6. The submission proceeds that the finding recorded by the court below that cause of action has accrued at Lucknow virtually amounts to the rejection of his objection and the same has not been left to be dealt with at any subsequent stage of the proceedings. 7. It is also argued by the learned Counsel for the revisionist that the plaint in none of its paragraphs makes any mention of a cause of action having accrued at Lucknow or any part of contract having been settled at Lucknow or any other averment to the effect that the cause of action had otherwise accrued at Lucknow. 8. From a perusal of the plaint, it is gathered that except a mention that the plaintiff is a resident of Lucknow no other pleading set out in the plaint points out accrual of a cause at Lucknow either fully or partly, however, the objections filed against the application filed under Order VII Rule 11 do state certain transactions to have taken place at Lucknow. 9. It is true that the plaintiff is a resident of Lucknow and works as a teacher in some institution. It is quite possible that he may have been approached at some place but there is no mention of such a place in the plaint where the contract was entered into for scripting, editing and revising the book in question of which the circulation otherwise than in a manner agreed between the parties has given rise to the dispute. 10. The contents of the plaint primafacie do not make out the accrual of cause of action at Lucknow but the objections filed to the application filed under Order VII Rule 11 do state that transactions took place at Lucknow which is said to be a part of cause of action. 11. At this stage learned Counsel for the opposite party points out that the plaintiff being a resident of Lucknow and working at Lucknow necessarily would imply that the scripting, editing and revision of the book which has given rise to the dispute between the parties was undertaken at Lucknow. 12.
11. At this stage learned Counsel for the opposite party points out that the plaintiff being a resident of Lucknow and working at Lucknow necessarily would imply that the scripting, editing and revision of the book which has given rise to the dispute between the parties was undertaken at Lucknow. 12. Even if it is assumed by implication that the cause of action had arisen at Lucknow yet it would require the objection to be gone into on the basis of pleadings and material available on record. The finding recorded in the impugned order that the cause of action had accrued at Lucknow, from a plain reading of a plaint, is clearly baseless as the objection as regards territorial jurisdiction does not seem to have been understood by the court below in its correct perspective but is confused with the cause. The cause of action is a bundle of facts and constitutes a mixed question of fact and law is true in almost all the cases but its territorial jurisdiction being questioned by the revisionist ought to have been looked into in the light of objection raised in the application filed under Order VII Rule 11. 13. The finding that the cause of action accrued at Lucknow having been baselessly recorded is set aside and the court below is directed to revisit the objection and the same may be gone into afresh in the light of relevant averments and material available on record. 14. The revision thus succeeds and the court below is directed not to treat the issue on territorial jurisdiction between the parties to have concluded by the impugned order and the same may be gone into afresh and decided in accordance with law. 15. Accordingly, the revision is allowed.