ISSUE OF
Lack of Jurisdiction of civil court raised after decree: discussed
The lack of jurisdiction whether relating
to subject matter, territorial or pecuniary aspects goes into the root of the
matter and needed to be ascertained by a court before going further with the
lis. However, there may be a situation when a court may lack jurisdiction and
yet the lis is decided. If that is so, what should be the fallout of such a
judgment? That was an issue raised before Hon’ble Delhi High Court in a matter
captioned as Gurmeet Singh Sethi Vs
Harasharan Kaur Batra CM (Main) 195 of 2021.
On the very anvil, the Supreme
Court in
Morgan Stanley Mutual Fund Vs Kartick Das 1994 (4) SCC 225 has held that issue a judgment
without jurisdiction shall be a nullity. However, the issue is whether all such
judgments shall be a nullity is a moot point. For instance, if the issue of
lack of jurisdiction is not raised before a court which eventually passed a
judgment and decree, whether such a judgment and decree shall be liable to be
set aside, more particularly, in execution proceedings. The Delhi High Court in
the Gurmeet Singh (Supra) has dealt with the issue to set at rest, ambiguity,
if any in this regard.
The judgments that is often
referred to for claiming lack of jurisdiction in such cases are: Kiran
Singh & Ors Vs Chaman Paswan & Ors AIR 1954 SC 340 and also in Hindustan Zinc Ltd Vs Ajmer Vidyut Vitran
Nigam Ltd (2019) 17 SCC 82 the
hon’ble Supreme Court has held that a judgment without jurisdiction shall be a
nullity. The Supreme Court in para 7 of Kiran Singh (Supra) was pleased to
analyse Section 21 of Code of Civil Procedure relating to execution
proceedings. The same are reproduced for
herein for ready reference:
“7. Section 11 enacts that notwithstanding anything in the
section 578 of Code of Civil Procedure,(correspond to section 99 of CPC) an objection that a Court which had 'no
jurisdiction over a suit or appeal had exercised it by reason of over-valuation
or under-valuation, should not be entertained by an appellate Court., except as
provided in the section. Then follow provisions as to when the objections could
be entertained, and how they are to be dealt with. The drafting of the section
has come in-and deservedly for considerable criticism; but amidst much that is
obscure and confused, there is one principle which stands out clear and
conspicuous. It is that a decree passed by a Court, which would have had no
jurisdiction to hear a suit or appeal but for over-valuation or
under-valuation, is not to be treated as, what it would be but for the section,
null and void, and that an objection to jurisdiction based on over-valuation or
undervaluation should be dealt with under that section and not otherwise. The
reference to Section 578, now Section 99, of
the Civil Procedure Code, in the opening words of the section is significant.
That section, while providing that no decree shall be reversed or varied
in appeal on account of the defects mentioned therein when they do not
affect the merits of the case, excepts from its operation defects of
jurisdiction. Section 99 therefore gives no protection to decrees passed
on merits, when the Courts which passed them lacked jurisdiction as a result of
over-valuation or undervaluation. It is with a view to avoid this result
that section
11 was enacted. It provides that objections to the
jurisdiction of a Court based on over-valuation or under-valuation shall Dot be
entertained by an appellate Court except in the manner and to the extent
mentioned in the section. It is a self-contained provision complete in itself,
and no objection to jurisdiction based on over-valuation or under-valuation can
be raised otherwise than in accordance with it. With reference to objections
relating to territorial jurisdiction, section 21 of the Civil Procedure Code
enacts that no objection to the place of suing should be allowed by an
appellate or revisional Court, unless there was a consequent failure of
justice. It is the same principle that has been adopted in Section 11 of
the Suits Valuation Act with reference to pecuniary jurisdiction. The policy
underlying sections 21 and 99 of the Civil Procedure Code and Section
11 of the Suits Valuation Act is the same, namely, that when a case had
been tried by a Court on the merits and judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it had resulted in
failure of justice, and the policy of the Legislature has been to treat
objections to jurisdiction both territorial and pecuniary as technical and not
open to consideration by an appellate Court, unless there has been a prejudice
on the merits, The contention of the appellants, therefore, that the decree and
judgment of the District Court, Monghyr, should be treated as a nullity cannot
be sustained under Section 11 of the Suits Valuation Act”.
The Section 21 of Code of Civil Procedure may
be perused before going further. The same are as under:
Objection to jurisdiction:-[(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 or settled at or before such settlement, and unless
there has been a consequent failure of justice.
2[(2) No
objection as to the competence of a Court with reference to the pecuniary
limits of its jurisdiction 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..
(3) No objection
as to the competence of the executing Court with reference to the local limits
of its jurisdiction shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the executing Court at the earliest possible
opportunity, and unless there has been a consequent failure of justice.
The provision for objection as contained in Code of Civil Procedure
is self contained.
Based on the provisions as illustrated
above and law settled in this regard, it may be construed from above that mere
technicalities shall not come in the way of the judgment and decree passed by a
court which may otherwise lack jurisdiction, unless the same has resulted in
failure of justice. Similarly Hindustan
Zinc (Supra) was in respect of improperly constituted Arbitral Tribunal. Thus,
if an executing transfers a decree to other court observing that subject matter
of the execution is within the territorial jurisdiction of another court shall
not in itself render the judgment and decree a nullity, if no prejudice is
caused to the party challenging the decree.
What is of paramount importance
is the fact that the hon’ble Supreme Court in Mantoo Sarkar Vs Oriental
Insurance co. Ltd & Ors (2009) 2 SCC 244 and Delhi High Court in Rehmania
Academy of Science, Mathura Vs Shri B.B.D Bhargava & Ors 2011 IV AD (Delhi) 579 stipulates that
only lack of subject matter jurisdiction may render a decree nullity, otherwise
a party raising complaint must prove prejudice caused to him. The judgment reported as Mantoo Sarkar (Supra)
has examined the principles of section 21 of the Code of Civil Procedure and
has held that a distinction is to be held with regard to a subject matter of
the suit and that of territorial and pecuniary jurisdiction. In Rehmania Academy (Supra) the
pre-requisites as ascertained by Supreme Court are as under:
(i)
The
objection was taken in the court of first instance;
(ii)
It
was taken at the earliest possible opportunity and in any case, before the
issues were settled;
(iii)
There
has been a consequent failure of justice;
(iv)
All
the three conditions must co-exist.
What emerges therefore is that the
appellate or revisional court shall not entertain any plea for lack of
jurisdiction, unless raised before the court of first instance.
In the above backdrop, the Delhi
High Court in Gurmeet Singh (Supra) has held that challenge to the
judgment and decree on the premise that location of the suit property did not
fall in the territorial limit of the court which has passed the judgment shall
not aid the petitioner, unless any prejudice is shown to have been caused to
him. Moreover, the high court has also observed that Delhi has peculiar problem
of its own, in as much as some time vide several notifications situation is altered and if a judgment and
decree is to be set aside on such technical issue, then the cause of justice
shall not be served.
What is of paramount importance
is the fact that issue of jurisdiction or lack of it has to be raised at the
very outset and at the earliest opportunity and if a party to the lis sits over
it over the years and when the successful party after the toil and travail
succeed, he cannot be precluded from reaping the fruit of decree by such
objections raised belatedly with a view to cause roadblock. The lateral
proceedings or appellate proceedings are sometimes undertaken only to cause
impediment in a calibrated pursuit of causing delay and no one can be allowed
to reap benefit from his own misdemeanor.
--------
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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