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B.S.I. Limited v. M.V. Cristian C & Others
Factual and Procedural Background
The defendants Nos. 1 and 2 filed a notice of motion seeking dismissal of the suit for want of jurisdiction. The basis of this motion was that on the dates the suit was filed (21-8-1995 or 11-9-1995), the defendant No. 1 ship m.v. "CRISTIAN-C" was not in Indian waters, and since the action against defendant No. 1 was an action in rem, the Court lacked jurisdiction. Additionally, defendant No. 2 was alleged not to have carried on business within the Court's jurisdiction. The plaintiffs objected to the notice of motion's tenability, arguing that the defendants had been directed by the Court to file written statements and could not raise jurisdictional objections by way of notice of motion after appearing in the suit. The matter proceeded with arguments on the procedural propriety of raising jurisdictional objections at this stage.
Legal Issues Presented
- Whether defendants Nos. 1 and 2 can raise an objection to the Court's jurisdiction by filing a notice of motion after having appeared and been directed to file written statements.
- Whether jurisdictional objections can be raised at a stage other than the filing of the written statement or under section 9-A of the Code of Civil Procedure (C.P.C.) or Order VII, Rule 11 of the C.P.C.
- What constitutes the "first hearing" of the suit for the purposes of raising jurisdictional objections under Order XV of the C.P.C.
Arguments of the Parties
Defendants' Arguments
- The Court lacks jurisdiction because the defendant No. 1 ship was not in Indian waters on the suit filing dates, making the action in rem against it untenable.
- Defendant No. 2 did not conduct business within the Court's jurisdiction.
- Defendants contended that if the pleadings show lack of jurisdiction, they are entitled to raise the objection by notice of motion even after appearance.
Plaintiffs' Arguments
- Defendants were directed by the Court (Justice Rane) to file written statements and cannot raise jurisdictional objections by notice of motion before doing so.
- Jurisdictional objections as preliminary objections can only be raised under section 9-A of the C.P.C. when interim reliefs are sought or under Order VII, Rule 11 of the C.P.C. at the plaint rejection stage, which is before filing the written statement.
- The stage for raising such objections by notice of motion had passed, and defendants must comply with the Court's direction to file written statements.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court found the plaintiffs’ objection to the notice of motion tenable on multiple grounds. First, there was a prior order directing defendants Nos. 1 and 2 to file written statements, which had not yet been complied with. Second, the Court noted that section 9-A of the C.P.C., allowing preliminary objections to jurisdiction, applies only when interim or ad-interim reliefs are sought by the plaintiffs, which was not the case here. Third, the stage for invoking Order VII, Rule 11 of the C.P.C. for rejection of the plaint had passed, as defendants had appeared and been served with summons.
The Court explained that once the stage of filing written statements is reached, the proper procedure for defendants to raise jurisdictional objections is by including them in the written statement. The Court referenced Order XIV, Rules 1 and 2 of the C.P.C., which empower the Court to frame issues, including jurisdictional issues, after pleadings are complete and to decide whether such issues should be preliminary or decided with other issues. The Court further analyzed Order XV, Rule 3, which permits pronouncement of judgment at the first hearing if no issues remain, but clarified that the "first hearing" occurs after filing written statements and framing issues, not before.
Accordingly, the Court held that the defendants had no right to raise jurisdictional objections by notice of motion after appearing and before filing written statements, except under section 9-A of the C.P.C., which was not applicable here. The Court emphasized that the defendants must file their written statements raising jurisdictional objections therein, after which the Court will frame and decide the issue of jurisdiction either as a preliminary issue or along with other issues.
Holding and Implications
Notice of motion dismissed.
The Court dismissed the defendants’ notice of motion for lack of jurisdiction objections raised at this procedural stage. However, the defendants Nos. 1 and 2 were granted liberty to raise objections to jurisdiction in their written statements as directed by the Court. If such objections are raised, the Court will decide on the framing of the jurisdictional issue and whether it should be addressed as a preliminary issue or with other issues in the suit. This decision does not establish any new precedent but clarifies the procedural stage and manner in which jurisdictional objections must be raised after appearance and before issue framing.
1. This the defendants notice of motion for dismissal of the suit for want of jurisdiction as against the defendant Nos. 1 and 2 on the ground that on the date when the suit was filed i.e. on 21-8-1995 or 11-9-1995 the defendant No. 1 ship m.v. "CRISTIAN-C" was not in Indian waters and since the action against the defendant No. 1 is the action in rem and since the ship was not in Indian waters at the time of filing of the suit, this Court has no jurisdiction to entertain and try the suit. It was also contended that so far as the defendant No. 2 is concerned, they did not carry on business within the jurisdiction of this Court.
2. Counsel for the plaintiffs raised preliminary objection to the tenability of this notice of motion, firstly, on the ground that there were directions of this Court to the defendant Nos. 1 and 2 to file their written statement and unit and unless these directions were complied with and written statement was filed, the defendant Nos. 1 and 2 had no right to raise objection to jurisdiction by taking out the present notice of motion (such a direction is given by Justice Rane on 14-2-1996 and defendant Nos. 1 and 2 were directed to file the written statement, adjourned to 6-6-1996 with warning that no adjournment on this ground will be granted). Secondly it was contended by the plaintiffs advocate that objection to jurisdiction as a preliminary objection could be raised only under section 9-A of the C.P.C if the plaintiffs apply for any interim or ad-interim reliefs and/or under Order VII, Rule 11 or C.P.C. where the Court could reject a plaint on the ground that it did not disclose any clause of action or that the suit being barred by the provisions of any law. According to the plaintiffs advocate, stage of rejection of plaint under Order VII, Rule 11 was a preliminary stage when the plaint was filed and was subjected to scrutiny and these provisions could not be invoked after the defendants appear and matter adjourned for filling written statement, therefore, on this ground the Counsel for the plaintiffs contended that the notice of motion was not tenable and the defendant Nos. 1 and 2 were required to be directed to file the written statement.
3. As against this, it was contended by the defendants advocate that if on the face of the pleadings of the plaintiffs the defendants could successfully show that the present suit could not be entertained by the Court for lack of jurisdiction then nothing prevented the defendants from raising an objection regarding jurisdiction and in taking out notice of motion for that purpose. Counsel for the defendants made submissions on merits regarding the prayers in the notice of motion.
4. I find that the objection raised by the plaintiffs to the tenability of the notice of motion is well founded, firstly, because there is an order of Justice Rane referred to above calling upon the defendants No. 1 and 2 to file the written statement. The record and proceedings also show that even thereafter defendants sought time for filing written statement. Secondly, this is not a case where the plaintiffs have claimed any interim or ad interim relief and at that time the defendants have raised preliminary objection to jurisdiction under section 9-A of the C.P.C. If that had been the case then the Court would have been required to decide the said objection on merits. Thirdly, this is not a stage of invoking the provisions of Order VII, Rule 11 of C.P.C. which empowers the Court to reject the plaint, that stage has already gone. The defendants have been served with writ of summons and had appeared and had been ordered by the Court to file written statement.
5. Therefore, when the stage of filing written statement has been reached, then the only option available to the defendants is to file their written statement raising therein their objection regarding jurisdiction. There is no other stage which gives a right to defendants to take out notice of motion taking objection to jurisdiction. Such an objection can only be raised only now in the written statement and if such an objection is raised then the Court can at the time of framing of issues under Order XIV of the C.P.C. which empowers the Court to frame and decide the issues relating to the jurisdiction of the Court or relating to a bar to the suit created by the law for the time being in force as a preliminary issues. But if the Court decides otherwise even these issues can be decided simultaneously along with the other issues framed in the suit. From this provision of Order XIV, Rules 1 and 2 it will be clear that after the pleadings are over, the Court has to frame issues, decide whether there are issues of fact and issues of law and thereafter decide whether all the issues are required to be decided at the time of filing of the hearing of the suit or some of them can be decided as a preliminary issue. Therefore, considering this provision the objection raised by the plaintiffs to the present notice of motion is required to be accepted without going to the merits of the notice of motion.
6. Order XV of the C.P.C. provides that at the first hearing of the suit the Court may pronounce judgment if it appears that parties are not at issue of any question of law of fact. Rule 3 of Order XV provides that where the parties are at issue on some question of law or of fact and issues has been framed by the Court as herein before provided then the Court may proceed to determine the issues if no further argument or evidence is required and the Court may pronounce judgment accordingly whether summons have been issued for settlement of issues or for final disposal of the suit. Even this provision cannot be resorted to by the defendants Nos. 1 and 2 for filing the present notice of motion. Firstly, because the written statement has to be filed by the defendant Nos. 1 and 2 as per the directions of the Court and the defendants have yet to take any objection to jurisdiction in the said written statement.
7. Therefore, if the defendants have to succeed in this notice of motion, they must show that their case is taken out under section 9A of the C.P.C. or that there is some other provision in the C.P.C. which gives them a right to raise objection regarding jurisdiction without filing written statement particularly when there is a direction of the Court to file the written statement.
8. In Rule 1 of Order XV the words "where at the first hearing of a suit" have been used by the legislature but what should be regarded as first hearing of the suit has not been explained or clarified in Order XV, Rule 1. However, as per sub Rule (5) of Rule 1 of Order XIV the first hearing of the suit is the stage when the written statement is filed and Court has to frame issues in the matter. The exact wordings of sub. Rule (5) of Rule 1 of Order XIV C.P.C. are:
"At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material proposition of fact or of law the parties are at variance....."
Therefore, the stage of first hearing of the suit is after filing of the written statement and before framing of the issues. Consequently, Order XV, Rule (1) has no application in this case as a result the only stage of raising objection to jurisdiction, if the matter does not come under section 9A of the C.P.C. is by filing written statement and raising the objection therein. If there is a direction of the Court to file written statement, then the defendants cannot raise an objection to jurisdiction by taking out a notice of motion as has been done in the present case. If and when the defendants files written statement and raise an objection to jurisdiction then the issue will have to be framed on that point. The defendants will have to convince the Court that the said issue has to be decided as a preliminary issue and if that is done by the Court, then only the objection to jurisdiction can be decided. There is no intermediary stage for raising an objection to jurisdiction excepting filing of written statement and taking that plea or unless the matter is covered by section 9A of the C.P.C. For all these reasons the notice of motion is required to be dismissed with liberty to the defendant Nos. 1 and 2 to raise objection to jurisdiction in the written statement. Hence, the order:
ORDER Notice of motion dismissed. However, the defendant Nos. 1 and 2 is granted liberty to raise objection to jurisdiction in the written statement. If such an objection to jurisdiction is raised, the same may be decided by the Court after framing of the issues and after deciding as to whether the issue of jurisdiction has to be decided as a preliminary issue.
Certified copy expedited.
9. Notice of Motion dismissed.
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