ASSAM PETRO CHEMICALS LTD. Vs. KUMKUM CHALIHA
LAWS(CAL)-1996-12-21
HIGH COURT OF CALCUTTA
Decided on December 10,1996

Assam Petro Chemicals Ltd. Appellant
VERSUS
Kumkum Chaliha Respondents




JUDGEMENT

S.N.MALLICK,J. - (1.)THIS revisional application under Section 115 of the Code of Civil procedure has been preferred by the defendants-petitioners against the order dated 20.7.1992 passed by the learned Assistant District Judge, 2nd Court, Alipore in Money Suit No. 46 of 1984. By the impugned order, the learned Trial Judge directed the above money suit to be fixed in the peremptory board for final disposal after disposal of the application for amendment of plaint filed by the plaintiffs fixing 20.8.92 for the purpose. Before considering the submissions made by Mr. Dasgupta against the impugned order, it would be necessary to refer to the admitted facts on record.
(2.)THE above money suit was filed by the plaintiffs on 18.9.94 against the present petitioners for damages on ground of breach of contract. The defendants on their appearance took a preliminary objection regarding the jurisdiction of the Trial Court to entertain the above suit. The Trial Court without framing issue decided the same on 2.6.86 under Order No. 22. A Division Bench of this High Court presided over by C. Mookherjee and A.C. Sengupta, CJJ., in exercise of revisional jurisdiction virtually set the aside the order with the following directions :-
''In our view, without filing of pleadings, framing of issues and recording of evidence the question of territorial jurisdiction ought not to have been fryrtminrf (determined ?) by the Court below. The same amounted to a jurisdiction error. We may only say the effect of the order No. 22 dated June 2, 1986 passed by the Court below was only to reject the defendant's petition in question without thereby determining the issues as regards jurisdiction. The decision on question of jurisdiction must wait till issues are framed. We leave it to the Court below to decide whether the same should be tried as a preliminary one or after recording the evidence in full the issue regarding jurisdiction ought to be tried as a preliminary one. The learned Assistant District Judge is directed to proceed with the suit in accordance with law. In deciding the issue regarding jurisdiction the order complained of will not be treated as a decision on the question of jurisdiction of the Court below.'' This Order of the High court is daged 9.1.1987.

On the basis of the said Order, the Trial Court passed Order No. 37 dated 18.9.87 directing the preliminary issue No. 2 regarding jurisdiction to be heard on 20.11.87. It was further made clear by the Trial Court in the aforesaid order that after disposal of the issue the pending application for amendment of plaint will be considered. The subsequent Order Nos. 40, 41, 42 dated 29.1.88, 19.2.88 and 18.3.88 respectively go to show that evidence was adduced on the above preliminary issue (vide pages 31 and 32 of the Supplementary Affidavit filed on behalf of the petitioner). The said preliminary issue was thereafter decided in favour of the plaintiffs-opposite parties by Order No. 44 dated 7.5.88. Against the said order passed by the Trial Court, the present petitioner moved the High Court in the revisional jurisdiction and the order dated 7.5.88 passed by the Trial Court on preliminary issue No. 2 was set aside by Division Bench of this High Court presided over S.K. Hazari and Amarabha Sengupta, JJ., by the Order dated 5.4.1989 (vide Annexure ''C'' to the main revisional application). The relevant part of the above Order of the High Court is quoted below for future reference in the instant matter:

''It appears that the order dated 7th May, 1988 passed by the learned Assistant District Judge decided the issue of jurisdiction in favour of the plaintiff without coming to a finding as to whether any part of the cause of action arose within the jurisdiction of the Alipore Court. We have carefully gone through the order and we hold that the Court did not come to a conclusion as to whether any part of the cause of action or main contract was within the territorial jurisdiction of the Aplipore Court. The order dated 7th May, 1981 is set aside and the Court below is directed to proceed with the hearing of the suit and if the Court holds that the issue with regard to jurisdiction should be heard as a preliminary issue, the Court will hear the same on merits. The parties will be at liberty to adduce further evidence and the Court will consider the evidence already on record and will consider the evidence which will be adduced by the parties on the point of jurisdiction in deciding the issue with the regard to jurisdiction. We make it clear that the Court below will be at liberty to decide as to whether the issue will regard to jurisdiction could be heard as a preliminary issue or the suit will be heard as a whole and we do not pass any order in that respect''. It has been submitted by Mr. Dasgupta that after the above order of the High Court being communicated to the Trial Court, the Trial Court on different dates fixed the preliminary issue along with application for amendment of plaint for hearing. Mr. Dasgupta has referred to the orders passed by the Trial Court dated 27.11.89, 19.12.89, 7.2.90, 6.2.92 and 23.6.92. It has been submitted by Mr. Dasgupta that the Trial Court till the impugned order was passed was consistent in its view and orders for hearing the issue No. 2 regarding the jurisdictional point as a preliminary issue before hearing the suit on merits. Mr. Dasgupta has submitted that on 20.7.92, the Trial Court suddenly passed the impugned order changing its stand and directed that it would dispose of the entire suit on merit and for that purpose fixed 20.8.92, for hearing the plaintiffs' application for amendment of plaint. Mr. Dasgupta has attacked the impugned order on a number of grounds. Mr. Dasgupta's first contention is that the Trial Court has acted illegally and with material irregularity by refusing to hear out the preliminary issue No. 2 which is inconsistent with the Trial Court's own orders as referred to above and also inconsistent with the orders of the High Court as noted above. Mr. Dasgupta's second contention is that when the territorial jurisdiction of the Trial Court was challenged in respect of the suit, the Trial Court should not have fixed a date for hearing the amendment application without disposing of the preliminary issue first. Mr. Dasgupta's third contention is that if the amendment application was to be allowed by the Trial Court and on a future date it be to found that the said Court has no jurisdiction to try the suit then such amendment to be allowed by the Trial Court would be without jurisdiction and would complicate the matter. Mr. Dasgupta has further contended that the Trial Court had no authority to pass the impugned order in utter disregard to its earlier orders fixing the issue No. 2 for hearing as a preliminary issue along with the amendment application. In that view of the matter Mr. Dasgupta has submitted that the impugned order does not show that the Trial Court has exercised its discretion given by this High Court in the orders dated 9.1.87 and 5.4.89 properly and justly. Now taking up Mr. Dasgupta's first contention I am of the opinion that the Trial Court cannot be said to have acted illegally or with material irregularity in holding that it would hear out the said issue along with other issues in the suit as well. The reasons given by the Trial Court in the impugned order for taking such a decision are quite convincing and the same may be quoted below :- ''Learned Lawyer for the plaintiff submits that the issue No. 2 on the point of Court's jurisdiction is involved in points of facts and laws both and that may be disposed of along with the P. hearing of the suit by taking evidence therein. He drew my attention in the order passed by Their Lordships Hon'ble Mr. Justice S.K. Hazari and Hon'ble Mr. Justice Amarabha Sengupta. After going through the order of the Hon'ble Court I find that Their Lordships gave liberty to this Court to dispose of the jurisdiction matter separately if this Court of law thinks fit and proper or to dispose of the jurisdiction matter with the final disposal of the suit. Learned lawyer for the plaintiff submitted that Their Lordships directed this Court to proceed with the hearing of the suit. I have gone through the materials on record before me. I find that this is a suit of 1984. Now we are in July 1992. Sufficient time stands passed by this time. By taking into consideration of the entire matter as a whole I am of opinion it will be just and proper to take up the jurisdiction matter along with the disposal of the suit in the P. hearing as the self-same evidence is required to be taken by the Court of law and is required to be adduced by the parties concerned. In order to shorten the time I am of further opinion that the suit is to be taken in the P. board for final disposal after disposal of the application for amendment of plaint which is yet to be disposed of. I accordingly hold that the question of jurisdiction is to be heard and disposed of along with the P. hearing of the suit. Fix 20.8.92 for hearing of the plaintiff's application under order VI rule 17 filed on 26.6.87......''

(3.)IT is needless to say that the matter in issue has a chequered career. The suit was filed in 1984 and the defendants-petitioners came up before this High Court twice against the orders passed by the Trial Court on the point of jurisdiction. The Order of the High Court dated 9.1.87 has clearly left the question of jurisdiction to be decided as a preliminary issue to the discretion of the Trial Court. The High Court in its Ordered dated 9.1.87 has observed that it is for the Trial Court to decide whether the same should be tried as a preliminary one or after recording the evidence in full the issue regarding jurisdiction ought to be tried as a preliminary one. In pursuance of that order, the Trial Court decided the issue No. 2 as a preliminary one and the finding of the Trial Court on that issue, as already noted, was set aside by the High Court in the revisional jurisdiction by the Order dated 5.4.89. In the said Order also, the High Court made it clear that the Court below will be at liberty to decide as to whether the issue with regard to jurisdiction could be heard as a preliminary issue or the suit would be heard as well and the High Court did not pass any order in that respect. The Trial Court in the impugned order has given the reasons for not considering the issue No. 2 as a preliminary one. He has also given the reasons that the said issue should be decided along with other issues for the disposal of the entire suit. The Trial Court was quite specific in its observation that the suit was pending since 1984. Further period of more than four years have passed since the passing of the impugned order and the suit is pending in the Trial Court for a period of more than 12 (twelve) years only on the question of determining the issue No. 2 as a preliminary issue relating to jurisdiction of the Trial Court. In that view of the matter, it cannot be said that the Trial Court has acted illegally or with material irregularity by not hearing the issue No. 2 as a preliminary issue and directing the same to be decided along with other issues while disposing of the entire suit on merits. In that way, the Trial Court is quite within its jurisdiction and discretion given by this High Court in the Orders dated 9.1.87 and 5.4.89. Mr. Dasgupta has argued that the Trial Court should not have ignored the earlier orders as referred to above fixing the matter of hearing issues No. 2 as a preliminary issue as those orders could not be reviewed by the Trial Court. I am unable to accept of Mr. Dasgupta's contention. In view of the fact that the aforesaid orders passed by the Trial Court fixing a date of hearing of issue No. 2 the Trial Court did not adjudicate anything and those orders were relating to the business of the Court to be transacted on those days. It is quite within the discretion of the Trial Court to say, taking into consideration the age of the suit that the entire suit should be heard on all the issues including the preliminary issue of jurisdiction. In that respect Mr. Dasgupta has referred a decision of the Supreme Court reported in AIR 1981 SC Page 2085 (Ramji Dayawala and Sons (P) Ltd. v. Invest Import). In the above reported case, the Supreme Court has observed that discretion of the Court is to be exercised according to well-established judicial principles, according to reason and fair play and not according to whim and caprice. It cannot be said that by passing the impugned order the Trial Court has acted arbitrarily, whimsically or capriciously. Regarding the second contention of Mr. Dasgupta, I am unable to agree with him that the Trial Court by fixing a date for hearing the amendment application filed by the plaintiff without disposing of the issue No. 2 has acted illegally or with material irregularity. Mr. Dasgupta, in support of his contention has relied upon a decision of the High Court reported in AIR 1978 Cal. Page 133 (Zohra Khatoon v. Janab Mohammad Jane Alam and others). But after going through the aforesaid reported decision, it is difficult to say that the said decision helps Mr. Dasgupta in any way. In the aforesaid case, the Trial Court decided on a preliminary issue that it has no territorial jurisdiction to try the suit concerned. In that view of the matter, this Court observed as follows :-
''In our opinion, Mr. Mukherji is certainly right in his contention that granting an amendment postulates an authority of the Court to entertain the suit and make an order for amendment therein but where the Court inherently lacks jurisdiction to entertain the suit it cannot make any order for amendment to bring the suit within its jurisdiction. In that case the Court will be exercising jurisdiction which it has not. So, if we uphold the view of the learned Judge that the Court had not the jurisdiction to entertain the suit, no amendment can be allowed either by the said Court or this Court in appeal exercising same powers to bring the suit within the jurisdiction of the Court...''

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