Holding

All three conditions of Section 21(1) CPC must be satisfied; since failure of justice was not demonstrated, the objection to the place of suing could not be entertained by the appellate courts.

Summary

A suit for partition of immovable property filed in 1938 in the Munsiff Court at Parappanangadi resulted in a preliminary decree in 1940 and lay dormant for over two decades. After a 1956 High Court order redefining territorial limits, the property fell under the jurisdiction of the Munsiff Court at Manjeri, where the plaintiff applied for a final decree in 1966. The defendant objected to Manjeri's jurisdiction; the objection was overruled, and a final decree was issued in 1968. Subsequent appeals led the Kerala High Court to set aside the decree, holding that only the Parappanangadi Court had jurisdiction, and the matter reached the Supreme Court on special leave. The Supreme Court held that under Section 21(1) of the Code of Civil Procedure, an appellate or revisional court may entertain an objection to the place of suing only if (i) it was raised in the court of first instance, (ii) it was raised at the earliest opportunity, and (iii) a consequent failure of justice is shown; the third condition was not satisfied, so the objection could not be entertained. Consequently, the Supreme Court allowed the appeal, set aside the High Court judgment, and remanded the case for determination on its merits within three months.

Issues considered

Whether an appellate or revisional court can entertain an objection to the place of suing under Section 21(1) of the Code of Civil Procedure.
Whether the three conditions stipulated in Section 21(1) – objection taken in the first instance, taken at the earliest opportunity, and consequent failure of justice – were satisfied in the present case.

Legislation cited

Code of Civil Procedures. 21(1)

Subjects

jurisdictionplace of suingSection 21 CPCobjection to jurisdictionappellate courtrevisional courtfailure of justicepartition suit

Judgment

183

KOOPILAN UNEEN'S DAUGHTER A
PATHUMMA & ORS.
v.
KOOPILAN UNEEN'S SON KUNTALAN
KUTTY DEAD BY LRS. & ORS,
B
August 6, 1981

-
;
[A.O. KOSHAL, V. BALAKRISHNA ERADI AND R.B. MISRA, JJ.]

Venue-Objection to the place of suing to be entertained by AppeJlate or

- Revisional Court, condition to be fulfilled, explained-Code of Civil Procedure,
section 21(1).

In a suit for partition of immovable property liled in the Court of Munsiff
c
Parappanangadi in the year 1938 that Court passed a preliminary decree for
partition on tbe 18th February, 1940. The parties to the suit took no further
interest in the matter for more than two decades. In the meantime according
to the order ol the High Court of Kerala dated Deccmbor 22, 1956 refining the
territorial limits of the Courts of Munsiffs functioning in district Calicut, of
D
which the Court of Munsiff at Parappanaogadi was one, the suit property came
under the territorial jurisdiction of the Munsiff's Court at M·anjeri. The plaintiff
on the !8th January, 1966 61ed an application praying that a final decree tho
suit be passed. Defendant No. 12 immediately' took an] objection that
the Manjeri Court had no territorial jurisdiction 10 hear the application and
that the matter should have been agitated in the Court of Munsiff at Parappana..
gadi. The objection was overuled by the Manjeri Court which proceeded to E
partition the property metes and bounds and ultimatt:ly passed a final decree in
that behalf on 9th July, 1968. An appeal filed ~gainst the final decree by
defendant No. 12 failed, but he suceeded before learnc'd single Judge of the Kerala
High Court who ruled that it was only the Parappanangadi Court that had the
territorial jurisdiction to entertain the application and the final decree was set
aside. Hence the appeal by special leave.
F
Allowing the appeal, the Court

HELD : I:!. In order that an objection to the place of suing may be
en_tertained by any appellate or revisional Court, the fulfilment of the following
three conditions is essential, according to the provisions contained in sub-section
(1) of section 21 of the Code of Civil Procedure : (i) The objection was taken in
the Court of first instance; (ii) it was taken at the earliest possible opportunity G
and in case where issues are settled, at or before such settlement ; (iii) there has
been a consequent failure of justice. [!SS F·G]

I :2. In the present case conditions Nos. 1 and 2 are no doubt fully satisfied;
but before the two appellate Courts below could allow the objection to be taken.
it was further necessary that a case of failure of justice on~ account of the place H
suing having been wrongly selected was m:ide out. Sini:e the respondents failed
to point out even before this Court that a failure of justice had occured by reason
184 SUPREME COURT REPORTS [1982] I S.C.R.

A of Manjeri having been chosen as the p1ace of suing, the provisions of sub-section
(I) of section 21 of the Code of Civil Procedure made it imperative for the
District Court and the High Court not to entertain the objection, whether or
not it was otherwise well founded. [185 H, 186 A·CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 564 of 1970.
B
Appeal by special leave from the judgment and decree dated
the 3rd April, 1969 of the Kerala High Court in S.A. No. 266
of 1968.
- -~

c
A.S. Nambiyar for the Appellants.

K.T. Harindra Nath, N. Sudhakaran and M.R.K. Pillai for
Respondent'.No. I. T
-
The Judgment of the Court was delivered by

D KosHAL, J. This appeal by special leave is directed against
the judgment dated 3rd of April, 1969 of the High Court of Kerala
rendered in a Second Appeal arising from a suit for partition of
immovable property.

2. The suit was filed in the Court of MunsiJf at Parappanan-
E
gadi in the year 1938. That Court passed a preliminary decree for
partition on the 18th February, 1940 and thereafter the parties took
no further interest in the matter for more than two decades. In the
mean time the High Court passed an order dated December 22,
-
'

1956 redefining the territorial limits of the Courts of MunsiJfs
functioning in district Calicut, of which the Court of MunsiJf at
F
Parappanangadi was one. According to that order the territory in
which the property disputed in the suit was situated, came under
the territorial jurisdiction of the MunsiJf's Court at Manjeri and
it was in that Court that the plaintiff filed, on the 18th January,
1966 an application (I.A. No. 109 of 1966) praying that a final
G decree in the suit be passed. Defendant No. 12 (who is now dead
and is represented in this appeal by respondents No. I and Ors.)
immediately took an objection that the Manjeri Court bad no terri-
torial jurisdiction to hear the application and that the matter should
have been agitated in the Court of MunsiJf at Parappananagadi.
H The objection was overruled by the Manjeri Court which proceeded
to partition the property by metes and bounds and ultimately passed
a final decree in that behalf on 9th July, 1968. An appeal was filed
PATHUMMA v. KUNTALAN (Koshal J.) 185

against final decree by defendant No. 12 in the Court of District A
Judge before whom the objection to the jurisdiction assumed by the
-1 Manjeri Court was again taken but was repelled with tbe result that
the final decree was confirmed.

The third round of litigation in regard to question of jurisdic-
tion took place in the High Court wherein a learned single Judge B
upheld the objection and ruled that it was only the Parappanangadi
Court that had the territorial jurisdiction to 1~ntertain the application

• praying for final decree and that the assumption of such jurisdiction
by the Manjeri Court was not justified. The objection being upheld,
the final decree was set aside and there was thus no occasion for the
High Court to decide the other points arising in this appeal. c
3. We have heard learned counsel for the parties on the
question of jurisdiction. An unfortunate aspect of. this litigation
has been that although that question has been agitated already in
three courts and has been bone of contention between that parties
for more than a decade, the real provision of law which clinches it D
was never put forward on behalf of the appellant before us nor was
adverted to by the learned District Judge or the High Court. That
provision is contained in sub-section (I) of Section 21 of the Code
of Civil Procedure which runs thus :

"21 (I) No objection as to the place of suing shall be E
allowed by any Appellate or Revisional Court unless such
objection was taken in the Colli t 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."

- In order that an objection to the plw~ of suing may be enter-
tained by an appellate or revisional court, the fulfilment of the
following three conditions is essential :
F

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

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

(3) There has been a consequent failure of justice.
ff
All these three conditions must co-exist. Now in the present
case conditions Nos. I and 2 are no doubt fully satisfied; but then
186 SUPREME COURT REPORTS f] 982] I S.C.R.
A before the two appellate Courts below could allow the objection to
be taken, it was further necessary that a case of failure of justice on
account of the place of suing having been wrongly _selected was made
out. Not only was no attention paid to this aspect of the matter
but no material exists on the record from which such failure of
justice may be inferred. We called upon learned counsel for the
B contesting respondents to point out to us even at this stage any
reason why we should hold that a failture of justice had occurred by
reason of Manjeri having been chosen as the place of suing but he
was unable to put forward any. In this view of the matter we must
hold that the provisions of sub-section above exracted made it
imperative for the District Court and the High Court not to enter-
C tain the objection whether or not it was otherwise well founded.
We, therefore, refrain from going into the question of the correctness
of finding arrived at by the High Court that the Manjeri Court had
territorial jurisdiction to take cognizance of the application praying
for final decree.

D 4. In the result we accept the appeal, set aside the judgment
of the High Court and remand the case back to it for deciding on
merits the appeal which culminated in that judgment. As the procee-
dings for the final decree have been pending since 1966, we further
direct that the High Court shall decide the appeal last mentioned at
the earliest possible and, in any case, within three months from the
E receipt of the records from this Court. The Registry shall take
immediate steps to have the records despatched to the High Court.
There will be no order as to costs. ••

S.R. Appeal allowed.

•