Q.
Inherent powers of the court are generally those powers which are expressly not provided by the Code of Civil Procedure but conferred on the Court in addition to those which are expressly provides by the Code. The Code of Civil Procedure is a procedural law and provided for the procedure to be adopted by Civil Courts while administering justice between the parties. But it is not possible by any enactment or law or Act to provide the provisions for all emerging situations. So some complementary powers are conferred upon the courts to deal with the emerging situation of a particular nature and the Court is free to exercise them for administering justice or to prevent the abuse of the process of the Court.
These powers can be exercised ex debitio justitiae in the absence of express provisions in the Code of Civil Procedure.
Inherent powers may be exercised ex debito justitiae in those cases, where there is no express provision in the Code. The said power cannot be exercised in contravention or in conflict of or ignoring express and specific provision of law. Durgesh Sharma v. Jayshree, AIR 2009 SC 285.
In case of Mahendra Manilal Nanavati v. Sushila, MANU/SC/0192/1964 : AIR 1965 SC 364: (1964) 66 Bom LR 681: (1964) 7 SCR 267 while expressing its view on the nature of inherent powers of the court, the Apex Court observed that -"the Code of Civil Procedure is a special piece of legislation to deal with procedural situations of proceeding of trials of civil nature. Under the Code itself, some hidden powers are conformed on the courts according to the emerging situations during the proceedings and courts can exercise them as ex debitiae justitiae in the obsence of expressed provisions. But where there are express provisions itself in the Code, the Courts are barred to invoke such powers."
Sections 148, 149, 151, 152, 153 and 153A of the Code of Civil Procedure, 1908 enact the law relating to inherent powers of the Court in different circumstances.
Where any period is fixed or granted by the court for the doing of any act, prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.
This section provides for enlargement of time by the acting court for the doing of any act, where any particular period is fixed or granted by the Court to do that act. So, in other words under its inherent powers under this section the Court has power to enlarge the said period even if the original period fixed has expired.
This section equips the Court in the nature of "inherent powers" whereby the Court can deal with the deficiency of expiry of time as fixed by the Code of Civil Procedure, 1908 or as allowed by the Code of Civil Procedure, 1908 or as allowed by the Court itself.
The use of the word "may" in the statute indicates that the power of enlargement of time is discretionary in nature, and the Court is, therefore, entitled to take into consideration the conduct and circumstances of the situation (case) for such extension.
Before extension of the time is granted by a court, two conditions must be fulfilled:
(1) A period must have been fixed or granted by the Court; and
(2) Such period must be for doing an act prescribed or allowed by the Code.
Q.
In Mahanth Ram Das v. Ganga Das, MANU/SC/0027/1961 : AIR 1961 SC 882: (1961) 3 SCR 763, the issue related to deficit court-fees which was to be pay able by certain date, the appellant unable to pay the court-fees on fixed date sought for extension of time through an application well before the expiry of time.
The High Court did not consider the application in view of peremptory order passed earlier by the Division Bench hearing the appeal, mainly because of the date of hearing of the petition for extension of time, the period had expired.
The Supreme Court held that section 148 clothes the court with ample power to do justice to a litigant if sufficient cause is made out for extension and the another extending time for payment, though passed after expiry of time fixed, could operate from the date on which the time fixed expired. In our opinion the High Court was in error of not granting enlargement of time.
In another leading case of Johri Singh v. Sukh Pal Singh, MANU/SC/0245/1989 : (1989) 4 SCC 403: AIR 1989 SC 2073: I (1991) BC 84 (SC): JT 1989 (3) SC 582: (1989) 96 PLR 617: (1989) 2 SCALE 518: (1989) Supp 1 SCR 17.
The Supreme Court observed that--"the power conferred by the Code under this section is of discretionary nature. The court may use it before securing the ends of Justice. It cannot be claimed by the party as of right, before exercising such power the Court should take into account all the facts and circumstances of the case, including the conduct of the applicant."
Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fees is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fees is payable, shall have the same force and effect as if such had been paid in the first instance.
Power under this section is also discretionary and the Court is supposed to use it judiciously, taking into account the facts of the case.
Provision of this section provides that "where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee(s) has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay such court-fee and upon such payment the document, in respect of which fee is payable, shall have the same force and effect (retrospectively) as if such fee has been paid in the first instance."
Inherent powers of court are based upon the principle of equity and to grant relief to a bona fide applicant, where he is barred, to do a particular (prescribed) act within a specific period by the circumstances beyond his control.
So, under section 149, the court is empowered to allow a party to make up deficiency of court-fee payable on the plain or memorandum of appeal, etc., even after the expiry of limitation prescribed for filling of such suit or appeal, etc. The aid of this power (under section 149), could be taken only when the party was not able to pay the court-fee in circumstances beyond its control or under unavoidable circumstances.
In case of Buta Singh v. Union of India, MANU/SC/0378/1995 : AIR 1995 SC 1945: (1995) 5 SCC 284: (1995) 3 SCR 359, the Court held that: "The court would be justified in appropriate cases to exercise the discretionary powers under section 149 after giving due notice to affected party."
In case of Banta Singh v. Union of India, AIR 1988 P&H 308, it was observed that: The word "at any stage" as occurring in section 149, would only mean at any stage when the matter is pending disposal before the court. A party could not ask for permission to pay deficiency of court fees even after the disposal of appeal.
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice to prevent abuse of the process of the Court.
Section 151 is a kind of saving clause, where the inherent powers save by this section can be used to secure the ends of justice.
Section 151 of the Code of Civil Procedure, 1908 lays down:
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court." Section 101 does not confer power on the Court, it only acknowledges the inherent powers of the Court by virtue of its being a judicial forum to dispense justice.
Generally under its inherent powers under section 181, the Court can recall its own orders and can correct mistakes: can setaside an ex parte order passed against the party; can issue temporary injunctions; can add, delete or transpose any party to a suit; can revive execution applications; can allow amendment of pleadings, etc. But only after looking into the facts and circumstances of the case. A court cannot act under the shelter of such powers arbitrarily but is supposed to invoke its judicial mind before granting relief to the applicant.
The inherent powers of the Court under section 151 can be exercised:--
(1) For ends of justice.--
The following two rules relating to ends of justice may be noted:
(a) It is in the ends of justice that injury should be remedied and needless expenses and inconvenience to parties be avoided.
(b) It will not be in the ends of justice to exercise inherent powers if it would interfere with the interest of third party or cause mischief or in justice.
(2) To prevent the abuse of the process of the Court.--
The power under this head or section 151 can also be exercised to prevent the abuse of the process of a court. Such abuse may be committed by a court or by a party. The basic principle of section 151 is that, the injustice, if any, so done to the party must be remedied on the basis of the doctrine actus curae neminem gravabit.
So abuse of process whether it is by way of instituting vexatious, obstructive or dilatory tactics, or by encouraging multiplicity of litigations, or by practising fraud on the Court, or by trying to secure an undue advantage over the opposite party, the Court while applying its judicial mind may grant some relief to the applicant, in the interest of justice.
Amendment of judgments, decrees or orders (sections 152, 153 and 153A).
The Rules of Procedure are handmades of justice. Section 151 of the Code gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. Rajendra Prasad Gupta v. Prakash Chandra Mishra, MANU/SC/0211/2011 : AIR 2011 SC 1137.
Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
Section 152 can be invoked for the limited purpose of correcting clerical errors or arithmetical error in the judgment. This section cannot be invoked for claiming a substantial relief, which is not granted in the decree or as a pretext to get the order altered, which has attained finality. State of Punjab v. Darshan Singh, MANU/SC/0335/2005 : AIR 2005 SC 2435.
The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.
Under these provisions of inherent powers of the court, the clerical or arithmetical mistakes in judgments, decrees or orders arising out from any accidental slip or omission may be remedied or corrected by the concerned court either of its own motion (suo motu) or on the application of any of the parties. Provisions under these sections are based on two basic principles: (a) an act of court should not prejudice any party; and (b) it the duty of the Courts to see that their records are true and they represent the correct state of affairs.
(1) A files a suit against 6 for Rs. 18000 in court. The court passes the decree for Rs. 1800 "as prayed". The decree can be amended under this section.
(2) A files a suit in court for a declaratory and mandatory injunction. The Court passes decree for "declaration" only as 'prayed'. This kind of mistake can be avoided/remedied under these provisions.
Section 182 is confined to amendments of judgments, order or decrees. Order VI, rule 17 deals with amendments of pleadings. Section 153, however, confers a general power on the court to amend defects or errors in "any proceeding in a suit" and to make all necessary amendments for the purpose of determining real question at issue between the parties to the suit or other proceedings. [Ram Karan Das v. Bhagwan Das, MANU/SC/0286/1964 : AIR 1965 SC 1144: (1965) 67 Bom LR 779: (1965) 2 SCR 186].
In Dwarka Das v. State of Madhya Pradesh, MANU/SC/0088/1999 : (1999) 3 SCC 500: AIR 1999 SC 1031: 1999 (1) CTC 635: JT 1999 (1) SC 375: 1999 (I) OLR (SC) 388: (1999) 121 PLR 820: (1999) 1 SCALE 76: (1999) 1 SCR 524: 1999 (2) UJ 895 (SC), it was observed that, section 152 of the Code of Civil Procedure, 1908 provides for correction of clerical or arithmetical mistakes in judgments, decree or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the Court or the tribunal become functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated, are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the province of sections 151 and 152 of the Code of Civil Procedure, 1908 even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the Trial Court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission is not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the Trial Court vide order dated 30th November, 1973. The High Court was, therefore, justified in setting as in the aforesaid order by accepting the revision petition filed by the State.
Q.
It is beyond any doubt that inherent powers of the Courts are of wide amplitude and are exercised by the concerned court at relevant stage to prevent the abuse of system and to cause proper justice to the parties, but, equally true is that these inherent powers can be exercises ex debitio justitiae, is only in the absence of express provisions of the Code of Civil Procedure, 1908 and also applying judicial mind looking into the facts and circumstances of a particular case.
In case of Manohar Lal v. Rai Bahadur Rao Raja Seth Hira Lal, MANU/SC/0056/1961 : AIR 1962 SC 527: (1962) Supp 1 SCR 450, it was observed that--"the restrictions on the inherent powers are not because they are controlled by the provisions of the Code, but because it should be presumed that the procedure provided by the legislature is dictated by the interests of justice."
Following are the limitations on the inherent powers of the Court:
(i) The Court has no inherent power to do what is prohibited (expressly or impliedly) by the Code so as to defeat the statutory provisions of the law of the land. Section 151 does not invest the Court with jurisdiction over the matters which are excluded from its cognizance.
(ii) Where specific provisions are contained in regard to particular issue(s) under the Code, the Court has no power to make such provision(s) meaningless and to devise its own procedure.
(iii) The inherent power is not to be exercised under the applicant has remedy provided elsewhere in the Code but has neglected himself. Equity aids the vigilant not the indolent. Further, where the applicant did not came to court with clean hands and has suppressed the facts, the inherent power is not to be exercised.
(iv) The inherent power of the Court is in relation to the procedural matters, for section 151 is part of procedural Code. This section cannot be used to disturb the substantive rights of the parries.
In Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhaya Lal Bhargava, MANU/SC/0263/1966 : AIR 1966 SC 1899: 1967 BLJR 59; (1967) 37 Comp Cas 42 (SC): (1966) 3 SCR 856, the suit was filed by Kanhya Lal Bhargava for recovery of the sum of Rs. 45,112.94 against Messrs Ram Chand and Sons Pvt. Ltd. Kanhaya Lal (Respondent-plaintiff) filed an application to the Court under Order XI, rule 21 read with Order XXIX, rule 3 to direct Jugal Kishore, a director of Appellant Company, to appear in court. The court made an order for the same by 14th December, 1964 Ramchand & Sons (Appellants-defendants) took member of adjournment to produce Jugal Kishore on the ground that he was ill. The court gave final opportunity to present Jugal Kishore on 3rd February, 1965. Even so, the appellant took two more adjournments to produce him but did not do so on ground he was ill. The Trial Court on 16th March, 1965 hearing the arguments held that Jugal Kishore had failed to comply and it struck off the defence of the appellant.
The High Court, on revision, held that Jugal Kishore did not appeal in court in spite of orders to that effect and the trial court had jurisdiction to strike out the defence of the appellant. It also negatived the contention of Ramchand and Sons that the trial court has no power to compel Jugal Kishore to appear in court on ground he was director of the company, and Ramchand and Sons could not say that one of the directors did not obey the orders of the court.
As the counsel of Appellant Company contended that the Code of Civil Procedure, 1908 provided express power for a court to strike out defence against a party under specified circumstance, and, therefore section 151 thereof cannot be invoked to strike out the defence in other circumstances for to do so will be to overside the provisions of the Code of Civil Procedure, 1908. Order XXIX, rule 3 of the Code of Civil Procedure, 1908 does not empower the court to require the personal appearance of the director other than a director who signed and verified the pleadings within Order XXIX, rule 1, thereof.
The Supreme Court discussed section 151 at length and came to conclusion:
There is nothing in Order XXIX of the Code of Civil Procedure, 1908, which expressly or by necessary implication, precludes the exercise of the inherent power of the Court under section 151 of the Code of Civil Procedure, 1908. In a case of default made by a director who failed to appear in court when he was so required under Order XXIX, rule 3 of the Code of Civil Procedure, 1908 the court can make suitable consequential order under section 151 of the Code of Civil Procedure, 1908 as may be necessary for the ends of justice or to prevent the abuse of the process of the court.
Observations on section 151:
The inherent power of the court are in addition to the powers specially conferred on the court by the Code. They are complementary to those powers and, therefore it must he held that the court is free to exercise them for the purposes mentioned in section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the code. Or against the intentions of the Legislature. If there are express provisions exhaustively covering a particular topic, they give rise to necessary implication that no power shall be exercised in respect of said topic otherwise than in the manner prescribed by the said provisions whatever limitations are imposed by construction on provision of section 151 of the Code, they do not control the undoubted power of the court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.
Conclusion:
The above stated case is a landmark observation of the Apex Court on the ambit and scope of the inherent powers of the court under section 151 of the Code of Civil Procedure, 1908; wherein after considering all the facts and circumstances on record and also the leading cases, the Court observed that:
"The inherent power of the Court under the provisions of sections 148, 149, 151, 153A and of wide connotations and fill up all the gaps arising out of unavoidable circumstances during the procedural proceedings. These powers should be exercised carefully and only when there is an anticipation of abuse of procedure and of justice as well whatever limitations are imposed by construction on the provisions of section 151 of the Code of Civil Procedure, 1908, they do not control the undoubted powers of the Court conferred under section 151 of the Code of Civil Procedure, 1908 to make a suitable order to prevent the abuse of process of the court."
In case of National Institute of Mental Health and Neuro Sciences v. C. Rameswara, MANU/SC/1063/2004 : AIR 2005 SC 242 it was held that inherent power of court is undoubtedly affirmed by section 151 of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustively.
The present appeal is directed against the order of the High Court of Orissa under which the High Court set aside the order of District judge and allowed the revision and confirmed the order of Lower Court.
In the present case the impugned order of the High Court and the order passed by the Appellate Court arises out of the order passed by the civil judge Bhubaneshwar. In present case in clause 34 of the agreement, the parties have bound themselves that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open to them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar such suit would be in violation of the said agreement.
Held, the suit filed by respondent is the city Civil Court at Bhubneshwar would not be valid and the Courts at Calcutta alone would be competent court to adjudicate the dispute between the parties and hence finding to the contrary given by courts below is hereby set aside.
National Textile Corpn. Ltd. v. Hari Box Swalram, 2004 AIR SCW 2067. The case relates to purchasing of qualities of cloth from Finally Mills and Gold Mohur Mills situated in Bombay. These mills were taken over by National Textile Corporation (a Central Government undertaking). Since a substantial part of contract of purchase remained unexecuted, the writ petitioners asked the appellants, (M.D. of N.T.C. Ltd.) to deliver the balance quantity of cloth of pending contracts and adjust all sums of money which had been paid by way of advance.
The appellant Company cancelled all outstanding contracts on the date of take over, and the deposits made with erstwhile management where not specifically marked towards any of invoice of packed material of such could not be adjusted against any future delivery and petitioners to claim the amount from erstwhile management.
The writ petitioners securing no relief from appellants, filed a writ petition praying for writ of mandamus be issued commanding the appellants to produce the entire records relating to withholding delivery of goods pursuant to contract. The writ petition was filed in Calcutta High Court. The writ petition was contested on behalf of appellant corporation by the practical officer N.T.C. Ltd. who filed a detailed counter affidavit containing pleas:
(1) the contract was entered at Bombay, goods were to be delivered from Company in Bombay, payments were to be made at Bombay, hence the entirety of cause-of-action arose in Bombay. The instant writ petition seeking to enforce such cause-of-action which has arisen wholly outside the said jurisdiction is not enforceable at the High Court at Calcutta.
(2) The cause-of-action having arisen in 1983 when the Take Over Act, came into force and sought to be enforced in 1989 after expiry of 6 long years is clearly belated. The petitioners (respondents) being guilty of laches no relief should be granted the application is barred by law of limitation.
The Division Bench of Calcutta High Court by an order dated 4th August, 2000 allowed the appeal preferred by respondents-cum-petitioners and the order dated 11th April, 1997 of the learned single Judge dismissing writ petition was set aside.
Against the order of Division Bench Calcutta High Court appeals by special leave have been preferred to Supreme Court.
The Supreme Court to dispose the question of jurisdiction in appeal took aid from O.N.G.C. v. Utpal Kumar Basu, MANU/SC/0759/1994 : (1994) 4 SCC 711: 1994 (3) ALT 5 (SC): (1995) 1 Cal LT 5 (SC): JT 1994 (5) SC 1: (1995) 109 PLR 245: (1994) 3 SCALE 90: (1994) Supp 1 SCR 252. Wherein it was held that merely because petitioner submitted the tender and made representation from Calcutta in respects to an advertisement inviting tenders which were to be considered at New Delhi and the work was to be performed in Hazira (Gujarat) and also received replies to the fax messages at Calcutta, could not constitute facts forming an integral part of cause-of-action. It was held that the High Court could not assure jurisdiction on the ground that the writ petitioner resides in or carries on business from a registered office in state of West Bengal.
In the present case, the textile mills are situated in Bombay and the supply of cloth was to be made by the ex-factory at Bombay. The learned single Judge held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The Division Bench has reversed the finding on the ground that concluded contract had come into existence which could be cancelled only after giving an opportunity of hearing and consequently the question of revocation of the contract at its Calcutta address would constitute a cause-of-action. The view taken by Division Bench is wholly erroneous in law. The Calcutta High Court had no jurisdiction to entertain the writ petition.
Hanil Ena Textile Ltd. v. Puromatic Filters Pvt. Ltd., 2004 AIR SCW 2914, Appellants (Hanil Era Textile Ltd.) situated at Matunga, Bombay, placed a purchase order with M/s. Puromatic Filters Pvt. Ltd., Bombay for supply of 136 numbers of coarse and fine filters each. Thirty per cent of amount was paid as advance. The agreement contained clause relating to jurisdiction stating:
"Any legal proceeding arising out of the order shall be subject to jurisdiction of the Courts in Mumbai."
The dispute in the present appeal is regarding the territorial jurisdiction of the Court at Delhi to try the suit. Para 8 of plaint is relevant for the purpose.
"Para 8" That the cause-of-action has arisen at Delhi as the ordered goods were delivered through their transporters M/s. Transport Corpn. Ltd., the value of goods was to be paid by (appellant-defendant) to the plaintiff at Delhi and as such this Hon'ble, Court is having jurisdiction to try and adjudicate upon the matter in dispute".
The A.D.J. decided the dispute on basis of allegations made in plaint that goods were delivered to the defendants at Delhi on the basis of Form CT-3, the court at Delhi had territorial jurisdiction to try the suit. The appeal preferred by the appellant against the said order was dismissed by the High Court on 21st December, 2001.
Against the judgment and order dated 21st December, 2001 appeal is preferred against the appellant's application under Order VII, rule 10 of the Code of Civil Procedure, 1908 passed by A.D.J. Delhi on 28th March, 1998 was dismissed.
The Supreme Court to dispose the appeal reconsiders the transaction as made out in plaint.
"M/s. Hanil Textile Ltd. sent from CT-3 and thereafter M/s. Puromatic Filters Ltd. despatched the goods from their factory in Delhi via Transport Corp. of India as per direction of Hanil Tex. Ltd. original document were sent to the Branch office of Puromatic Ltd. at Goregaon (W), Bombay but Hanil Textile Ltd. did not retain the document from the branch office of Puromatic Filter Ltd. Bombay and illegally and unauthorisedly took the delivery of the goods from Transport Corp. of India. These averments show that purchase of goods was made by Hanil Textile Ltd. at Bombay and the same was accepted by Puromatic Filters branch office at Bombay. The advance payment was made at Bombay: "Thus a part of cause-of-action arose at Bombay".
The remaining portion of claim which M/s. Puromatic Filter State that since goods were despatched from Delhi through Transport Corp. India Ltd. led to rise of cause-of-action at Delhi thus Delhi court has jurisdiction. To this Supreme Court held:
Having regard to the fact that other was placed by defendant at Bombay, the said order was accepted by the branch office of plaintiff at Bombay; the advance payment was made at Bombay and as per plaintiff's case final payments were to be made at Bombay; there was clear intention to confine the jurisdiction of the courts in Bombay to the exclusion of all other courts. The court of A.D.J. Delhi had, therefore, no territorial jurisdiction to try the suit. The order of Delhi High Court dated 21st December, 2001 is also set aside the plaint filed by Puromatic Filter Ltd. is sent to be presented before competent court of Bombay.
M/s. Kusum Ingots and Alloys Ltd. v. Union of India, 2004 AIR SCW 2766, the facts of the case are that M/s. Kusum Ingots Ltd., has its registered office at Mumbai, obtained a loan from S.B.I. branch at Bhopal. Respondent 2 issued a notice for repayment of the said loan from Bhopal purported to be in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
Kusum Ingots Ltd. filed writ petition questioning vires of the Securitisation Act, 2002 before Delhi High Court which was dismissed on ground of lack of territorial jurisdiction.
Submissions:
(1) Kusum Ingots Ltd. submitted before High Court that the constitutionality of parliamentary Act was in question, the High Court of Delhi had requisite jurisdiction.
(2) The counsel of respondent states that no cause-of-action arose within territorial jurisdiction of the High court of Delhi, the writ petition has rightly not been entertained.
The issue of territorial jurisdiction came before Supreme Court which going through number of its earlier decided cases observed:
The expression used in clause (2) of article 226 of the Constitution of India, indisputably even if a small fraction of "cause-of-action" accrues within the jurisdiction of the court, the court will have jurisdiction. "Cause-of-action" refers to the ground set forth in the plaint, or media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Passing of a legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause-of-action arises therefore. The litigant has the right to go a court where part of his cause-of-action arises. The place where an appellate order or revisional order is passed may give rise to a part of cause-of-action although the original order was passed at a place outside the said area, when a part of cause-of-action arises within one or the other High Court, it will be for the petitioner to choose his forum.
Principal jurisdiction of Civil Courts for entertaining the suits of civil nature is not unlimited but subject to express or, implied restriction in this respect.
In a leading, classic decision of Dhulabai v. Stale of Madhya Pradesh, MANU/SC/0157/1968 : AIR 1969 SC 78: (1968) 3 SCR 662: (1968) 22 STC 416 (SC), after considering a number of cases, the following principles were summarized by the Supreme Court--
(1) Where a special statutes bars the adjudication of Civil Courts, the exclusion of Civil Court must be held to be excluded. Such a provision, however, does not exclude those case where the provision of a particular act have not been complied with or the statutory Tribunal has not acted in conformity with fundamental principles of judicial procedure.
(2) Where there is an expressed and exclusive bar on the adjudication of a Civil Court.
(3) The provisions of a particular court cannot be challenged before the Tribunals on the grounds of ultra vires, but even the High Court cannot go into the question on a revision or references from the decisions of Tribunals.
(4) When a provision is already declared as unconstitutional or constitutionality of any provision is to be challenged, a suit lies.
(5) But where the particular act, which excludes jurisdictions of Civil Court contains no machinery for refund of tax collected in excess of constitutional limits or is illegally collected, a suit lies.
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