Section 16: Suits to be instituted where subject-matter situate

Code of Civil Procedure Section 15. Court in which suits to be instituted.

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.

Explanation.—In this section “property” means property situate in ¹[India].

Note 1: Subs. by Act 2 of 1951, s. 3 for “the States”

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 17. Suits for immovable property situate within jurisdiction of different Courts.

Simplified Explanation:

Section 16 provides for institution of the suit where subject matters are situated. As per this section, the suit must be instituted where subject matter is situated.

It states for the various suits for immovable property (Clause (a) to (e)) and movable property (Clause (f)).

Suits regarding immovable property such as recovery of immovable property with or without rent or profit, partition of immovable property, foreclosure, sale or redemption of mortgage immovable property, compensation for wrong to immovable property etc. as well as suit regarding the recovery of movable property under distraint or attachment can be instituted at

a) a relevant Court having local limits of its jurisdiction where such property is situated; e.g. if the property is situated at Delhi then such suits shall be instituted at Court in Delhi and not at any other place. or

b) a relevant Court having local limits of its jurisdiction where the defendant actually or voluntarily resides or carries business or works for gain; e.g. the defendant resides in Mumbai then the suit against his can be filed at Court in Mumbai and not at any other place.

It should be noted that this section applies to any property situated within the territory of India (Bharat).

Judgment:

(a) In Aligarh Muslim University v. Vinay Engineering Enterprises Pvt. Ltd., (1994) 4 SCC 710, the Supreme Court examined a case wherein the contract between the parties was executed at Aligarh; the construction work was to be carried out at Aligarh; the contract provided that in the event of dispute, Aligarh Court alone would have the jurisdiction; the arbitrator was to be appointed at Aligarh and had to function at Aligarh. The Supreme Court held that the Court at Calcutta had no jurisdiction, because the respondent company was a Calcutta-based firm.

(b) In Board of Trustees for the Port of Calcutta v. Bombay Flour Mills Pvt. Ltd. & Anr., AIR 1995 SC 577, the Supreme Court considered a case wherein a civil court at Bharatpur (Rajasthan) entertained a civil suit in respect of assignment of imported goods unloaded at Calcutta dock and the plaintiff’s representation to the Port Trust to waive the port charges had been refused. The Civil Court at Bharatpur entertained the suit and passed an ex parte ad-interim mandatory injunction directing the Port Trust to release the goods on payment of specified amount. The Rajasthan High Court dismissed the appeal of the Port Trust, but the Supreme Court held that as no cause of action, even partly, occurred at Bharatpur, the only appropriate court at Calcutta was competent to take cognizance of the action and held that the orders of the Civil Court at Bharatpur, having no jurisdiction, were void and the order of the High Court, refusing to interfere with the orders, was illegal.

(c) In H.V. Jayaram v. Industrial Credit & Investment Corpn. of India Ltd., AIR 2000 SC 579, the Supreme Court examined the issue of territorial jurisdiction of a court in respect of the offence under Section 113 (2) of the Indian Companies Act, 1956. Taking note of Sections 113 and 207 of the said Act, the Apex Court held that the cause of action for default of not sending the share certificates within the stipulated period would arise only at a place where the registered office of the company was situated as from that place the share certificates could be posted and are usually posted.

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

Please share and follow this blog for more such law related articles.

Section 15: Court in which suits to be instituted

Code of Civil Procedure Section 14. Presumption as to foreign judgments.

PLACE OF SUING

15. Court in which suits to be instituted.—Every suit shall be instituted in the Court of the lowest grade competent to try it.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 16. Suits to be instituted where subject-matter situate.

Simplified Explanation:

Section 15 provides that every suit shall be instituted in the Court of lowest grade competent to try it. e.g. If there is a consumer dispute then such suit must be instituted initially in the District Consumer Forum because it is of lowest grade in such matters.

Conferment of jurisdiction is a legislative function. It can neither be conferred with the consent of the parties nor by a superior court. If a court having no jurisdiction passes a decree over the matter, it would amount to a nullity, as the matter by-passes the correct route of jurisdiction. Such an issue can be raised even at a belated stage in execution. The finding of a court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction.

Acquiescence of parties cannot confer jurisdiction upon a court and an erroneous interpretation equally should not be permitted to perpetuate or perpetrate, defeating the legislative intention. The Court cannot derive jurisdiction apart from the Statute. No amount of waiver or consent can confer jurisdiction on the Court if it inherently lacks it or if none exists. 

Judgments:

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

Please share and follow this blog for more such law related articles.

Presumption as to foreign judgments

 Code of Civil Procedure Section

14. Presumption as to foreign judgments.—The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

 Code of Civil Procedure Section

Section 13 When foreign judgment not conclusive

 Code of Civil Procedure Section 12. Bar to further suit.

13. When foreign judgment not conclusive.—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of ¹[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in ¹[India].

Note 1: Subs. by Act 2 of 1951, s. 3, for “the States”.

 Code of Civil Procedure Section 14. Presumption as to foreign judgments.

More Reading: 

Judgment

Natural Justice

Section 12 Bar to further suit

Code of Civil Procedure Section 11. Res judicata.

12. Bar to further suit —Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 13. When foreign judgment not conclusive.

Judgments:

1) Dir., Cent. Marine Fisheries Res. Inst. & Ors. v A. Kanakkan & Ors., (2009) 17 SCC 253: Code of Civil Procedure, 1908 - Section 12- Res judicata – Applicability - Principle of res judicata to apply to proceedings before CAT. - However, when fresh cause of action arises - Res judicata would have no application.

(Para 12) Principle of res judicata would apply to proceedings initiated before the Central Administrative Tribunal. If the said principles were applicable, the bar to maintain a fresh application on the self-same cause of action would attract provisions of Section 12 of the Code of civil Procedure or the general principles of res judicata.

2) Ramchandro Dagdu Sonavane (Dead) by L.Rs. & Ors. v. Vithu Hiro Mahar (Dead) by LRs. & Ors., (2009) 10 SCC 273: (Para 31) Civil – Res judicata - Application of - Section 11 of Code of Civil Procedure, 1908 Whether the Judgment and Decree passed in the original suit would operate as res judicata in subsequent proceedings, including the proceedings before the High Court in the second appeal and writ petition filed by the Respondents - Held, a plea decided even in suit for injunction touching the title between the same parties, would operate as res judicata - In the present case, all the issues has been decided in earlier suit and has been confirmed in the regular second appeal and the issue decided therein was binding on the parties - Each one of the conditions necessary to satisfy the test as to the applicability of Section 11 of CPC is satisfied.

3) 

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

Section 11: Res judicata

Code of Civil Procedure Section 10. Stay of suit.

Section 11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

¹[Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

Note 1: Ins. by Act 104 of 1976, s. 6 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 12. Bar to further suit.

Simplified Explanation:

Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro una et eadem causa” (no man should be vexed twice over for the same cause).

The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.

Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. 

It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed.”

Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardised and this would create a chaotic situation which may bring instability in the society.

If the issue has been already decided on merit between the same parties in an earlier litigation, it cannot be decided again. Explanation (4) thereof, also provides for constructive res judicata which has to be read like the provisions of Order II Rule 2. It also applies to the proceedings in the Suit.

Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness of a judicial decision has no bearing upon the question whether or not it operates as res judicata. In such an eventuality, re-agitation of an issue is barred by the principle of constructive res judicata. 

It would be impermissible to permit any party to raise an issue inter se where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing, if they were parties in an early proceeding under the very Act raising the same issue would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata.

In certain conditions res judicata also binds the co-defendants. The principle of res judicata has been held to bind co-defendants if the relief given by the earlier decision involved the determination of an issue between co-defendants. There are following three conditions which govern the applicability of res judicata:

1. There must be a conflict of interest between the defendants concerned

2. It must be necessary to decide this conflict to give the plaintiff the relief claimed

3. The question between the defendants must be finally decided. 

The principle of res judicata would not apply if the decree has been obtained by practicing misrepresentation or fraud on the court, or where the proceedings had been taken all together under a special Statute. More so, every finding in the earlier judgment would not operate as res judicata. Only an issue “directly” and “substantially”, decided in the earlier suit, would operate as res judicata. Where the decision has not been given on merit, it would not operate in case against the judgment and decree of the court below the appeal is pending in the appellate court, the judgment of the court below cannot be held to be final, and the findings recorded therein would not operate as res judicata.

The doctrine would not apply if the judgment is by a Court lacking inherent jurisdiction or when the judgment is non-speaking. 

If the matter has not been decided on merit earlier, the doctrine of res judicata is not applicable. 

The object of Explanation IV is to compel the party to take all the grounds of attack or defence in one and the same suit.

Some stray observations by the Trial Judge, in an earlier case on the question which was not directly and substantially in issue – would not bar the subsequent suit.

The principle analogous to Res Judicata or constructive Res judicata does not apply to criminal cases. Where the entire proceedings have been initiated illegally and without jurisdiction, in such a case – even the principle of Res judicata (wherever applicable) would not apply.

The Supreme Court laid down 3 exceptions to the rule of Res Judicata

(i) When judgment is passed without jurisdiction

(ii) When matter involves a pure question of law.

(iii) When judgment has been obtained by committing fraud on the Court.

For judgement replications please read this blog.

Reference:

1) http://www.nja.nic.in/16%20CPC.pdf

Stay of suit

Code of Civil Procedure Section 9. Courts to try all civil suits unless barred.

10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in ¹[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of ¹[India] established or continued by ²[the Central Government ³***.] and having like jurisdiction, or before ⁴[the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in ¹[India] from trying a suit founded on the same cause of action.

Note 1: Subs. by Act 2 of 1951, s. 3, for “the States”.

Note 2: Subs. by the A.O. 1937, for “the G.G. in C.”

Note 3: The words “or the Crown Representative” omitted by the A.O. 1948.

Note 4: Subs. by the A.O. 1950, for “His Majesty in Council”.

Code of Civil Procedure Section