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2023 DIGILAW 356 (JK)

Vipan Kumar v. Jyoti Angural

2023-08-07

RAHUL BHARTI

body2023
JUDGMENT : 1. A civil suit on file no 14/2019 titled “Vipan Kumar Vs Jyoti Angural” came to be returned by the court of learned Ist Additional District Judge, Jammu vide its order dated 23.10.2021 on the ground of purported lack of territorial jurisdiction to entertain and try the suit, and, thus, directing its return to be presented before the competent court of jurisdiction. Thus, by operation of rule 10 of Order 7 of the Code of Civil Procedure, 1908, the court of learned Ist Additional District Judge, Jammu came to pass an order dated 23.10.2021 which left the plaintiff aggrieved constraining him to approach this Court with the present petition seeking setting aside of the said order dated 23.10.2021. 2. The petition does not bear reference as to under which provision of law the same has come to be filed, whereas Order 43 rule 1(a) of the Code of Civil Procedure, 1908 provides an appeal against an order passed under rule 10 of Order 7 of the Code of Civil Procedure, 1908 returning a plaint to be presented before a proper court. Therefore, the present petition is taken to be an appeal under Order 43 rule 1(a) of the Code of Civil Procedure, 1908 and is, accordingly, to be adjudicated as an appeal and thus, the petitioner is to be read and reckoned as an appellant in the case. 3. The appellant, as being the plaintiff, came to file a civil suit against the respondent thereby seeking a decree for damages for an amount of rupees five lac on account of malicious complaint filed by the respondent against the appellant. In his plaint, the appellant has averred that because of motivated and malicious complaint filed by the respondent against him, the appellant came to suffer loss of reputation for which the suit for compensation for the amount of rupees five lac came to be maintained by him against the respondent. 4. In the plaint, the appellant referred to the cause of action taking place on account of false complaint filed by the respondent before the Police Post Rajpura, District Samba followed by a complaint before the Chief Judicial Magistrate, Samba and finally upon being summoned by the Police Station Rajpura, District Samba only to be absolved of the accusation made against him by the respondent but leaving the reputation of the appellant injured. 5. 5. The appellant as a plaintiff has mentioned himself to be a resident of Janipur Colony, Jammu whereas the respondent, as being the defendant, has been mentioned to be a resident of Panjgrian Sainia, Tehsil Rajpura, District Samba. By reference to the fact that the appellant has suffered injury to his reputation, as such, the Court of Ist Additional District Judge, Jammu was said to be having the jurisdiction to entertain the suit. 6. Upon being summoned, the respondent appeared in the civil suit by filing the written statement by pressing a preliminary objection therein that the court of Ist Additional District Judge, Jammu lacking the jurisdiction to entertain the suit saying that cause of action had purportedly accrued within the jurisdiction of District Samba and, therefore, under section 16 of the Code of Civil Procedure, 1908 the suit in reference was to be maintainable in a court of law in the District Samba and not before the court of Ist Additional District Judge, Jammu. 7. The trial Court of learned Ist Additional District Judge, Jammu came to frame issues of law and facts in the suit in terms of its order dated 16.04.2021 which are reproduced as under:- 1. Whether this court lacks territorial jurisdiction to try and hear this suit? OPD “2. Whether defendant had borrowed an amount of Rs.4,50,000/- from the plaintiff with a promise to repay the said amount in January, 2017? OPP 3. Whether on the failure of the defendant to repay the aforesaid borrowed amount when plaintiff and his wife on 13.06.2017 had gone to the house of defendant, they were attacked by defendant and her husband resultantly plaintiff’s wife had sustained injury and an FIR no. 69/2017 for offences under section 420/323/504/506 RPC was registered against defendant and her husband? OPP 4. Whether the defendant had lodged a false and frivolous complaint against the plaintiff, whereby he was made to face the higher officer of the High Court, his friends and relatives and he has suffered humiliation, disrespect and bad reputation in the society which has caused damage to his reputation and he has also suffered financial loss? OPP 5. If issue no. 4 is proved in affirmative, whether the plaintiff is entitled to compensation of Rs. 5,00,000/- for financial loss, loss of reputation, harassment and bad named in the society? OPP 6. Relif OP Parties.” 8. Issue no. OPP 5. If issue no. 4 is proved in affirmative, whether the plaintiff is entitled to compensation of Rs. 5,00,000/- for financial loss, loss of reputation, harassment and bad named in the society? OPP 6. Relif OP Parties.” 8. Issue no. 1 was taken to be a preliminary issue to be adjudicated upon at the first instance before proceeding further with respect to adjudication of the rest of the issues. It is by reference to this issue no. 1 as being preliminary issue that the trial court of learned Ist Additional District Judge, Jammu came to hold that the suit filed by the appellant before it was not maintainable on account of lack of territorial jurisdiction in view of the provision with respect to the jurisdiction of Civil Court for entertaining a civil suit under section 20 of the Code of Civil Procedure, 1908. 9. The court of learned Ist Additional District Judge, Jammu came to hold that the purported cause of action has accrued to the appellant within the territorial jurisdiction of District Samba wherein the respondent is also residing, as such, the court in Jammu district is supposed to have no jurisdiction to try and entertain the suit and, therefore, the return of plaint was the only course of option left for the court of learned Ist Additional District Judge, Jammu to carry out by passing an order dated 23.10.2021. 10. A perusal of the plaint, written statement and the impugned order dated 23.10.2021 would show that the trial court of learned Ist Additional District Judge, Jammu fell in an error of true and correct understanding of the facts of the case as well as the applicable provision of law. 11. The respondent in her written statement had objected to the maintainability of the suit by reference to section 16 of the Code of Civil Procedure, 1908 which relates to the institution of the suit by reference to the subject matter situation. 11. The respondent in her written statement had objected to the maintainability of the suit by reference to section 16 of the Code of Civil Procedure, 1908 which relates to the institution of the suit by reference to the subject matter situation. Section 16 of the Code of Civil Procedure, 1908 is reproduced as under :- “Section 16- Suits to be instituted where subject-matter situate Subject to the pecuniary or other limitations prescribed by any law, suits (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) or the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.” 12. On the other hand, the court of Ist Additional District Judge, Jammu envisaged the application of section 20 of the Code of Civil Procedure, 1908 which relates to the institution of the other suits by reference to the residence of the defendant, and situs of the cause of action. Section 20 of the Code of Civil Procedure, 1908 is reproduced as under:- “Section 20- Other suits to be instituted where defendants reside or cause of action arises. Section 20 of the Code of Civil Procedure, 1908 is reproduced as under:- “Section 20- Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of 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 voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or (c)The cause of action, wholly or in part, arises. 2[Explanation].-- A corporation shall be deemed to carry on business at its sole or principal office in 3 [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Illustrations (a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business. (b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.” 13. In these two scenarios, section 19 of the Code of Civil Procedure, 1908 came to be lost to be taken note by the court below. In these two scenarios, section 19 of the Code of Civil Procedure, 1908 came to be lost to be taken note by the court below. Section 19 of the Code of Civil Procedure, 1908 relates to the institution of the suits for compensation for wrongs to person or moveables. Section 19 of the Civil Procedure Code, 1908 is reproduced as under:- “Section 19- Suits for compensation for wrongs to person or movables. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. Illustrations (a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi. (b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.” 14. While in the context of his civil suit the appellant identified in terms of its title to be a suit for recovery of damages for an amount of Rs. five lac on account of malicious complaint filed by the respondent against the appellant whereas the text and context of the plaint is defamation oriented by the purported act of filing of the complaint by the respondent against the appellant which resulted in an enquiry carried out by the District Police, Samba only to come up with a purported finding that the accusation against the appellant at the instance of the respondent through the medium of her complaint was not correct. Whether suit filed by the appellant for damages is for malicious prosecution or for the defamation suffered by him at the instance of the respondent, the fact remains that it is section 19 of the Code of Civil Procedure, 1908 which was supposed to have been taken notice of by the Court of learned Ist Additional District Judge, Jammu which affords an option to a person having suffered a wrong to his person or to his moveables to file a civil suit for compensation in a civil court where the wrong came to take place or before the court where the wrong doer, as being the defendant, resides, or carries on business, or personally works for gain. 15. By this section, the appellant had the option of maintaining the civil suit before the court within the local limits of whose jurisdiction the respondent herein is residing and that option is district Samba or where the appellant came to suffer wrong to his person. 16. It is by reference to this option that the appellant had reckoned himself to have suffered wrong within the local limits of jurisdiction of the court of learned Ist Additional District Judge, Jammu because the appellant, being the resident of Jammu and while working in Jammu in the course of his employment, came to be summoned by the concerned Police of District Samba from Jammu to answer the accusation against him under the police inquiry. 17. Thus, by receiving the notice of the accusation of criminal nature so made by the respondent against him while being in Jammu, the wrong against the person of the appellant set in at that very instant and vested an option for the appellant to sue even though the appellant came to present himself for enquiry before the District Police, Samba where the enquiry came to have the closure. Thus, it cannot be said that the perceived injury to the reputation of the appellant affording him a cause of action to sue the respondent was geographical centric or confined within the territorial limits of district Samba, and that outside district Samba the reputation of the appellant remained unharmed and the accusation free from its effects so as to exclude the cause of action originating or happening within the territorial limit of the civil courts in Jammu. 18. 18. In this case, the position of law can be taken note of in the form of a judgement of the High Court of Bombay in the case of “Khandchand Pokardas Vs Harumal D. Varma,” reported in AIR 1965 Bombay 109, in which the suit for damages for malicious prosecution was filed in the District Court of Poona wherein the plaintiff in the said case was residing and came to be served for appearance in a criminal case commenced by the defendant in a Court in Bombay, in which the allegations of criminal misappropriation and criminal breach of trust had been made against the plaintiff. The criminal complaint had resulted in its dismissal, resulting in discharge of the plaintiff thereby leading to filing of a suit for compensation by him in the court of Civil Judge, Senior Division Poona. The High court of Bombay came to take note of section 19 of the Code of Civil Procedure, 1908 and approved the institution of the civil suit by the plaintiff before the court concerned in Poona. In this case, the High Court of Bombay carried out the understanding of the wrong as consisting of a series of acts and starting from filing of a criminal complaint before the court in Bombay to the receiving of summon by the plaintiff to appear in the case at Poona. In the said judgement, the High Court of Bombay came to refer for reliance to the case of “Gokaldas Melaram Vs Baldevas T. Chabira,” reported in AIR 1961 Mysore 188. 19. Section 19 of the Code of Civil Procedure, 1908 expressly provides for jurisdiction with respect to a civil suit in which a plaintiff reckons a wrong done to his person or to movable property. Section 16 of the Code of Civil Procedure, 1908 does not innumerate suit of any such kind in its catalogue as from A to F as is meant under section 19. Similarly section 20 is a residuary in nature with respect to other suits which are not getting identified under sections 16, 17 & 19. 20. Section 16 of the Code of Civil Procedure, 1908 does not innumerate suit of any such kind in its catalogue as from A to F as is meant under section 19. Similarly section 20 is a residuary in nature with respect to other suits which are not getting identified under sections 16, 17 & 19. 20. Viewed thus, the suit filed by the appellant in terms of its institution is governed by section 19 of the Code of Civil Procedure, 1908 as a malicious prosecution is a wrong done to a person and the purported wrong suffered by the appellant has delivered its purported effects against him in Jammu while originating from district Samba and, therefore, the option of the appellant to institute his civil suit before the court of Ist Additional District Judge, Jammu is the one given by section 19 of the Code of Civil Procedure, 1908, which could not have been dislodged by the court of learned Ist Additional District Judge, Jammu by directing return of the plaint to the appellant. 21. The impugned order dated 23.10.2021 is, thus, bad in the eyes of law which is, accordingly, set aside. The court of Ist Additional District Judge, Jammu is directed to retain the plaint of the appellant and proceed ahead with the trial of the civil suit by reckoning the civil suit filed by the appellant as maintainable before the court of Ist Additional District Judge, Jammu and to this effect finding on issue no. 1 be entered accordingly and the trial of the suit with respect to other issues be resumed. Appeal is, accordingly, allowed. Disposed of accordingly.