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Mohannakumaran Nair v. Vijayakumaran Nair .
Factual and Procedural Background
The respondent lent the appellant Rs 6,02,000 in Riyadh, Saudi Arabia. A promissory note dated 8-5-1999 was executed there. Although both parties were then residing and working in Saudi Arabia, the respondent filed a money-recovery suit in 2002 before the Court of the Subordinate Judge, Attingal, Kerala.
The appellant appeared and filed an application challenging the court’s territorial jurisdiction. On 15-3-2005 the trial court dismissed that application, holding that jurisdiction existed because, according to the plaint, the defendant was “a resident of Kadinamkulam Village” within its limits.
The appellant invoked the High Court’s revisional jurisdiction (CRP No. 820 of 2005). The learned Single Judge agreed that, strictly, the Attingal court lacked territorial jurisdiction on the date of institution, yet declined to return the plaint, reasoning that the defendant had subsequently taken permanent residence in India and that returning the plaint would only result in its re-presentation to the same court.
The present appeal challenges that High Court order.
Legal Issues Presented
- Whether the Court of the Subordinate Judge, Attingal, possessed territorial jurisdiction under Section 20 CPC when no part of the cause of action arose in Kerala and the defendant resided abroad on the date of suit.
- Whether the High Court, having found absence of jurisdiction, could refuse to exercise its revisional power under Section 115 CPC on the ground that subsequent events would render the objection academic.
Arguments of the Parties
Appellant’s Arguments
- The High Court itself determined that the trial court lacked jurisdiction; after reaching that conclusion it was bound to set aside the trial court’s order and return the plaint.
- Jurisdiction must be assessed with reference to the date of institution; subsequent residence of the defendant in India is irrelevant.
Respondent’s Arguments
- By written submission (no oral argument), the respondent supported the High Court’s view that returning the plaint would serve no practical purpose because the defendant was now residing permanently within the Attingal court’s limits.
- It was additionally contended—for the first time before the Supreme Court—that the defendant had committed to repay the amount within the jurisdiction of the Attingal court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 | Discretionary power (including revisional power) must be exercised strictly in accordance with law. | Used to emphasise that the High Court’s discretionary refusal to interfere cannot contravene statutory provisions governing jurisdiction. |
| New Moga Transport Co. v. United India Insurance Co. Ltd., (2004) 4 SCC 677 | Jurisdiction‐exclusion clauses must be expressed in clear, unambiguous terms. | Cited while discussing the limited autonomy of parties (dominus litis) and the statutory constraints of Section 20 CPC. |
| Kusum Ingots and Alloys Ltd. v. Union of India, (2004) 6 SCC 254 | Distinction between territorial jurisdiction in civil suits and writ proceedings. | Invoked to illustrate that tests applied by writ courts are not automatically applicable to ordinary civil suits. |
| Ambica Industries v. CCE, (2007) 6 SCC 769 | Reaffirmed the distinction noted in Kusum Ingots. | Reinforced the need to apply Section 20 CPC strictly in civil litigation. |
| Jindal Vijayanagar Steel Ltd. v. Jindal Praxair Oxygen Co. Ltd., (2006) 11 SCC 521 | Maintainability and parties’ rights are judged with reference to the date of institution. | Relied upon to hold that a suit lacking jurisdiction on the filing date cannot be validated by later events. |
Court's Reasoning and Analysis
The Supreme Court reiterated that a suit is maintainable only where a cause of action arises or as otherwise permitted by Sections 15–20 CPC. Section 20 operates subject to Sections 15–19 and is confined to places where (a) the cause of action arises or (b) the defendant “actually and voluntarily resides or carries on business or personally works for gain” on the date of filing.
Key analytical steps:
- The transaction, execution of the promissory note, and both parties’ residence were all in Saudi Arabia; therefore, no part of the cause of action arose in Kerala.
- On the suit’s filing date the defendant was residing and working in Saudi Arabia; Section 20(a) could not be invoked.
- The High Court correctly found absence of jurisdiction but erred in treating subsequent change of residence as curing that defect. Jurisdictional competence is determined ex ante, not ex post.
- Discretion under Section 115 CPC cannot override statutory mandates. Citing Reliance Airport Developers, the Court held that the High Court’s refusal to interfere was an impermissible exercise of discretion.
- The respondent’s fresh contention that a commitment to pay was made in Kerala was rejected: (i) it had not been raised before the High Court; (ii) the High Court’s unchallenged finding negated any Kerala cause of action.
- The doctrine of dominus litus does not allow a plaintiff to bypass territorial requirements where Section 20 is involved.
Holding and Implications
Appeal Allowed — Impugned judgment set aside.
Consequently, the order of the High Court upholding the trial court’s jurisdiction is annulled; the plaint must be returned for presentation before a competent court. No order as to costs was made.
Implications: The decision reinforces that territorial jurisdiction under Section 20 CPC is judged strictly on the date of institution and cannot be retroactively conferred by subsequent events such as a defendant’s later residence in the forum State. No new doctrinal principle is created, but the ruling fortifies existing jurisprudence on jurisdictional competence and limits on revisional discretion.
S.B Sinha, J.— Leave granted.
2. The appellant is said to have borrowed a sum of Rs 6,02,000 (Rupees six lakhs two thousand only) from the respondent. The said transaction was carried out at Saudi Arabia. The appellant executed a promissory note on 8-5-1999. Admittedly, the parties were residing at Saudi Arabia at the relevant time. No part of the cause of action arose within the jurisdiction of the Court of Subordinate Judge, Attingal. The respondent herein filed a suit for recovery of the aforementioned amount in the Subordinate Court at Attingal. Although both the parties were residing in Saudi Arabia, the plaintiff filed a suit in the Court of Subordinate Judge, Attingal for recovery of the said amount sometime in the year 2002. The appellant having been summoned, appeared in the suit. He, inter alia, raised an issue of lack of territorial jurisdiction on the part of the said court to entertain the suit. By an order dated 15-3-2005, the application of the appellant was dismissed by the learned trial Judge holding:
“Admittedly the transaction took place at Riyadh in Saudi Arabia which is beyond the jurisdiction of this court. According to the defendant since the transaction took place beyond the jurisdiction of this court it lacks territorial jurisdiction to entertain the suit. At the same time the plaintiff would contend that this court has territorial jurisdiction since the defendant is a resident within the jurisdiction of this court. As per Section 20(a) CPC every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business or personally works for gain. From the address given in the plaint and from the averments in the plaint it can be seen that the defendant is a resident of Kadinamkulam Village which is within the jurisdiction of this court. The defendant himself has no case that he is not a resident within the jurisdiction of this court. That being so this court has territorial jurisdiction to entertain the suit. Contention to the contrary raised by the defendant is devoid of any merit and is liable to be rejected. Issue 1 is thus found in favour of the plaintiff.”
3. The appellant filed a civil revision thereagainst before the High Court of Kerala which was marked as CRP No. 820 of 2005. By reason of the impugned judgment, a learned Single Judge of the said Court relying on or on the basis of Section 20(c) of the Code of Civil Procedure and upon placing the legislative history of the said provision, opined:
“20. Thus I agree with the learned counsel for the revision petitioner that strictly the court did not have territorial jurisdiction to entertain the suit on the date of the suit. The question of the nature of relief that has to be granted to the defendant arises for consideration now. Even if the suit were to be returned, on admitted facts that has to be represented to the same court now as admittedly after filing the suit the petitioner/defendant is residing permanently, actually and voluntarily in India. Any and every error will not persuade the court to exercise its revisional jurisdiction. Such jurisdiction has to be invoked only in aid of justice. I take note that there is no serious dispute raised about liability or the execution of the promissory note. There is also no serious contention that if the plaint were returned accepting the plea regarding jurisdiction, it has to be represented to the same court as by then the petitioner had started permanent, actual and voluntary residence in India. I am in these circumstances satisfied that the suit is liable to be considered and disposed of by the court of Subordinate Judge of Attingal and the same need not be directed to be returned.”
4. Mr P.S Narasimha, learned counsel appearing on behalf of the appellant in support of this appeal submitted that the High Court itself having arrived at a finding that the suit was not maintainable, could not have refused to exercise its revisional jurisdiction. Although, no oral argument was advanced before us on behalf of the respondent, a written submission has been filed supporting the impugned judgment.
5. The court undoubtedly, exercises a discretionary jurisdiction in terms of Section 115 of the Code of Civil Procedure. Discretion, however, as is well known must be exercised in accordance with law and not dehors the same. [See Reliance Airport Developers (P) Ltd. v. Airports Authority of India (2006) 10 SCC 1, (2006) 11 Scale 208.]
6. A suit can be filed only when there exists a cause of action and which has arisen within the jurisdiction of the court.
7. Sections 15 and 20 of the Code of Civil Procedure provide for the place where a suit can be filed. Section 15 mandates that suit shall be instituted in the court which is competent to try.
8. The question in regard to the jurisdiction is required to be determined with reference to the date on which the suit is filed and entertained and not with reference to a future date. Sections 15 and 19 regulate the filing of the suit at the places where cause of action has arisen. Section 20 operates subject to the limitation contained in Sections 15 to 19. Place of residence of the defendant being one of the exceptions thereto. The plaintiff is the dominus litus, but he can file a suit only at one or the other places specified in the Code of Civil Procedure and not at any place where he desires.
9. In New Moga Transport Co. v. United India Insurance Co. Ltd. (2004) 4 SCC 677, AIR 2004 SC 2154 this Court held:
“19. The intention of the parties can be culled out from use of the expressions ‘only’, ‘alone’, ‘exclusive’ and the like with reference to a particular court. But the intention to exclude a court's jurisdiction should be reflected in clear, unambiguous, explicit and specific terms. In such case only the accepted notions of contract would bind the parties. The first appellate court was justified in holding that it is only the court at Udaipur which had jurisdiction to try the suit.”
10. A distinction must be borne in mind between exercise of jurisdiction by a civil court and a writ court in this behalf. [See Kusum Ingots and Alloys Ltd. v. Union of India (2004) 6 SCC 254, AIR 2004 SC 2321. See also Ambica Industries v. CCE (2007) 6 SCC 769, (2007) 8 Scale 488.]
11. Ordinarily, the rights and obligations of the parties are to be worked out with reference to the date of institution of the suit. See Jindal Vijayanagar Steel (JSW Steel Ltd.) v. Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521, (2006) 8 Scale 668 Determination in regard to maintainability of the suit, it is trite, must be made with reference to the date of the institution of the suit. If a cause of action arises at a later date, a fresh suit may lie but that would not mean that the suit which was not maintainable on the date of its institution, unless an exceptional case is made out therefor can be held to have been validly instituted. Discretion, as is well known, cannot be exercised, arbitrarily or capriciously. It must be exercised in accordance with law. When there exists a statute, the question of exercise of jurisdiction which would be contrary to the provisions of the statute would not arise.
12. Application of doctrine of dominus litus is confined only to the cause of action which would fall within Sections 15 to 18 of the Code of Civil Procedure. It will have no application in a case where the provision of Section 20 thereof is sought to be invoked.
13. It is one thing to say that the parties had their residences in India but the same would not mean that a suit could be filed at any of the places where the defendant resides. At all material times, the parties were at Saudi Arabia. They were residing there only. They had been working for gain in that country. It is also not a case where under the promissory note the amount was to be paid in India. There is nothing on record to show that any demand was made within the State of Kerala and the defendant was under any contractual obligation to pay the said amount in Kerala where the demand has been communicated.
14. The High Court itself has held that no part of cause of action arose in the State of Kerala. The respondent has not questioned that part of the order before this Court questioning the said finding.
15. The respondent, therefore, in our opinion cannot be permitted to raise the said plea before us for the first time.
16. The contention raised on behalf of the respondent that a part of cause of action did not arise within the jurisdiction of the trial court as the appellant made a commitment of payment of the amount within the jurisdiction thereof, cannot be accepted for more than one reason. Firstly, because no such contention had been raised before the High Court. Secondly, because the High Court itself has arrived at a finding that the learned trial Judge had no territorial jurisdiction to entertain the suit. It is also not a case where the petitioner had been residing within the local limits of the jurisdiction of the court where the defendant at the time of commencement of the suit was actually or voluntarily residing or carried on business or personally worked for gain.
17. He, at the material time, had been residing in Saudi Arabia.
18. The material date for the purpose of invoking Section 20 of the Code of Civil Procedure is the one of institution of the suit and not the subsequent change of residence. Change of residence subsequent to decision of the court would not confer territorial jurisdiction in the court which it did not have.
19. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. But, in the facts and circumstances of the case, there shall be no order as to costs.
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