Gurmit Kaur and another vs Dhanto

D.V. Sehgal, J.

The plaintiffappellants filed a suit in forma pauperis on 3.11.1982 alleging that the defendantrespondent and her son took an amount of Rs. 7,800/ from them for sending appellant No. 2 to foreign country but they failed to do so. She also did not return the amount received by her. On 1.3.1981, the respondent in the presence of respectables executed agreement Exhibit P.1 undertaking to pay Rs. 7,800/ to the appellants upto 6.4.1981. She however, failed to pay the amount. Thus, a prayer was made for a decree for the recovery of the said amount. The respondent pleaded that the suit was barred by limitation. She also alleged that the agreement Exhibit P.1 is understamped and not admissible in evidence. She further submitted that the said agreement was the result of fraud, misrepresentation and forgery. Another objection raised by her was that the Civil Courts at Hoshiarpur had no jurisdiction.

On the basis of the pleadings of the parties, the learned Subordinate Judge, Ist Class, Hoshiarpur, who tried the suit framed the following issues :

(1) Whether defendant along with her son had taken the amount of Rs. 7,800/ from the plaintiff ? OPP

(2) Whether the defendant executed a valid agreement on 1.3.1981 to pay Rs. 7,800/ upto 6.4.1981, if so its effect ? OPP

(3) Whether the suit is barred by limitation ? OPD

(4) Whether the agreement in question is the result of fraud, misrepresentation and forgery ? OPD

(5) Whether the civil court has got no jurisdiction ? OPD

(6) Relief.

Findings on issues No. 1 and 2 were returned in favour of the appellants while issues No. 3, 4 and 5 were decided against the respondent. Under issue No. 5 it was specifically held that the Civil Court at Hoshiarpur had the jurisdiction to entertain the suit. As a result decree for recovery of 7,800/ on the basis of the agreement Exhibit P.1 with future interest at the rate of 6 per cent per annum was passed by the learned Trial Court in favour of the appellants and against the respondent on 2.12.1983. Feeling aggrieved from this decree the respondent filed an appeal in forma pauperis which was entertained by the learned Additional District Judge, Hoshiarpur, who took up the issue relating to jurisdiction and came to the conclusion that the Civil Court at Hoshiarpur had no jurisdiction to entertain the suit as the agreement Exhibit P.1 had been executed at village Bulina, District Jalandhar. Consequently, the finding of the Trial Court on issue No. 5 was reversed, the appeal was allowed, the judgment and decree of the Trial Court was set aside and the plaint was ordered to be returned to the appellants for presentation to the proper Court at Jalandhar. This is how the present appeal has been filed by the appellants in this Court.

After hearing the learned counsel for the appellants, I find that the learned Additional District Judge fell in error in reversing the finding of the Trial court on issue No. 5. Section 21(1) of the Civil Procedure Code (for short ''the Code'') provides that no objection as to the place of suing shall be allowed by any Appellate Court 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. It has been held in Koopilan Uneen''s daughter Pathumma v. Koopilan Uneen''s son Kuntalana Kutty dead by LRs., AIR 1981 SC 1683, that an objection to the place of suing may be entertained by an Appellate or Revisional Court, if the fulfilment of the following three conditions is essential :

(1) The objection was taken in the Court of first instance.

(2) It was taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement.

(3) There has been a consequent failure of justice. All these three conditions must coexist.

It was for the respondent who wanted to oust the jurisdiction of the Court at Hoshiarpur to show before the learned Additional District Judge that failure of justice has resulted in the circumstances of the case. The judgment of the learned Additional District Judge shows that the respondent did not advert to this aspect of the matter nor tried to establish that Trial of the suit in the Civil Court at Hoshiarpur had resulted in failure of justice. There is even no finding to this effect recorded by the learned Additional District Judge.

I have, therefore, no doubt in my mind that the learned Additional District Judge erred in the exercise of his jurisdiction when he reversed the finding of the Trial Court on issue No. 5.

I, therefore, set aside the judgment dated 4.3.1986 of the learned Additional District Judge and remand the appeal to him for its trial on merits. Since there is no representation on behalf of the respondent, there shall be no order as to costs.