- (1.) THIS is a revision by the defendant against an order of the Civil Judge, Ratangarh, dated the 8th September, 1954, deciding a preliminary issue as the jurisdiction against the defendant.
(2.) THE plaintiff is a partnership firm carrying on business in the name of Bilasrai Mannalal in Ratangarh. THE defendant is a firm which carries on business as commission agents in the name of Purushottam Das Samal Das in Kotah. THE plaintiff's case briefly was that one of its partner Banshidhar went to Kotah on the 17th July, 1953, and placed certain orders for the purchase of rice, dhania, barley etc. which the defendant firm. Certain payments were made by means of hundies by the plaintiff to the defendant. Disputes then arose between the parties and the plaintiff eventually filed the suit, out of which the present revision arises for the recovery of a sum of Rs. l769/13/- in the court of the Civil Judge, Ratangarh. THE defendant in his jawabdava raised a number of please but the only plea which is relevant for the purpose of the present revision is that he raised an objection that the court at Ratangarh had no jurisdiction to enervation the present suit as the defendant admittedly lived in Kotah and, further, no cause of action whatever had arisen within the jurisdiction of that court and, therefore that court was not competent all to entertain this suit. THE Civil Judge framed the following issue - "was the suit within the jurisdiction of his court?" and tried it is a preliminary issue. He came to the conclusion that ordinarily the suit should have been filed in the competent court at Kotah but further found that the defendant had submitted to the jurisdiction of the court at Ranagarh and, therefore, he was competent to entertain the suit and in coming to that conclusion, he appears to have relied on a decision of this court in Ramlal vs. Ram Gopal (1 ). This revision has been preferred be the defendant against the above order. THE contention is that the court below has misunderstood and misapplied the law enunciated in Ramlal's case and that it has no jurisdiction to try the present suit and, therefore, the order of the Civil Judge is unsustainable in law and should be set aside. A preliminary objection has been raised on behalf of the opposite party, and that objection has been put in a two-fold manner. It has been vehemently argued that the present revision is incompetent as, firstly, it is barred by virtue of the provisions of sec. 21 of the Civil Procedure Code and, secondly, it is also barred under sec. 115 C. P. C. and in the light of the decisions of this Court in Swaroopnarain's case (2) and in Nagori Ibrahim's case (3 ). I propose in this order to examine the preliminary objection only. Talcing up the first part of the objection relating to sec. 21 C. P. C, that section reads as follows - "no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in court 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. " It is a fundamental principle of the administration of justice that when court has no jurisdiction over a litigation, its judgments and orders, howsoever correct otherwise, are nothing but a nullity and have no effect and may be declared to be void by any court in which they might come up for consideration. Sec. 81 is an exception to this general rule, and it provides that on objection to the place of suing shall be of no avail in any appellate or revisional court unless certain conditions precedent are fulfilled, and these conditions are that the objection must have been taken in the court of first instance at the earliest possible opportunity, and before the settlement of issues where issue are reaised and secondly, that there has been a consequent failure of justice. It is argued on behalf of the opposite party that the second condition referred to above has not been fulfilled in the present case and, therefore, this Court is not competent to allow the objection as to territorial jurisdiction in the case in hand. Howsoever plausible the objection may appear on the face of it, I am of opinion that it is without any substance. As I understand sec. 21, it seems to me that it is designed by the legislature to come into play in those cases only where a case has been tried on the merits by the court of first instance and an objection as to territorial jurisdiction is involved therein. It is only such cases that it is possible to speak of a "conse-quent"failure of justice having occurred. I wish to call special attention to the last clause of the section, which is, "unless there has been a consequent failure of justice. " In my opinion it is futile to say that there can be a consequent failure of justice where a suit has not already been tried on the merits. One cannot reasonably interpret the section to appeal to cases like the present where only a preliminary issue as to jurisdiction has been raised and decided against the defendant and there has been no investigation of the case on the merits, and to expect the defendant to show that any failure of justice has occurred in such cases is to expect the impossible. This view receives support from Rati Ram vs. Kundan Lal (4) where at page 387, the learned Judges observed that - "the only case in which the question of the applicability of the section arises is when the first court, after giving a finding in the affirmative on the point of jurisdiction, decides the case on the merits and the appellate or revisional court disagrees with that finding. " and it has been further observed that - "the object of the legislature in enacting this salutary principle of law is that when the court of first instance after giving an affirmative finding on jurisdiction takes proceedings on the merits of the case, the latter should not be rendered abortive and all the time and labour spent thereon should not be wasted simply by reason of the fact that the higher court comes to a contrary finding on the preliminary point of jurisdiction. In this view of the matter, I have come to the conclusion that sec. 21 cannot be held as a bar to the maintainability of the present revision, and I over-rule this part of the preliminary objection. I turn next to the objection in so far as it is grounded on sec. 115 C. P. C. as interpreted by two Full Bench decisions of this court in Swaroopnarain's and Ibrahim's cases. Put briefly, the objection is that it will be open to the plaintiff to raise his present contention under sec. 105 C. P. C. in an appeal to the High Court from the final decree and, therefore, it is not a case in which it can be said that no appeal lies thereto within the meaning of sec. 115. In Swaroop Narain's case it was laid down by a Bench of five Judges that - "where it is open to party to raise a ground of appear under sec. 105 C. P. C, from the final decree or order with respect to any order which had been passed during the pendency of the case, it should be held that an appeal in that case lies to the High Court within the meaning of the term "in which do appeal lies thereto" appearing is sec. 5j5 of the Code of Civil Procedure". Then came Ibrahim's case which dealt with the question of the maintainability of revisions from interlocutory orders where the burden of proof in the matter of issues may have been wrongly placed. It was laid down that wrong allocation of burden of proof was likely to result in prejudice to the (party upon whom the burden was wrongly put and was therefore likely to affect the decision of the suit on the merits. That being so it was held that Purohit Swarupnarain's case fully applied and the aggrieved party can take a ground under sec. 105 C. P. C. from the decree that may be finally passed. In the last but one paragraph of the judgment, it was observed that the question was not what relief the appellate court would be able to give on appeal from the final decree but the question really was whether the party upon whom the burden had been wrongly put could take that as a ground under sec. 105 C. P. C. and the answer was given that such ground could be taken because wrong allocation of the burden of proof was likely to prejudice the party on whom it was wrongly placed and and, would therefore affect the decision of the case on the merits. The contention of learned counsel for the opposite party is that Ibrahim's case fully applies to the present case also, and the contention was forcefully advanced that where a question as to territorial jurisdiction has been answered adverse to the defendant by the court of first instance, such a question could undoubtedly be raised in the High Court in any appeal which may be brought to it from the decree in due course, Explaining the phraseology of paragraph 15 of the judgment in Ibrahim's case referred to above learned counsel for the opposite party stated that the position really was that the defendant against whom the issue of jurisdiction was wrongly decided could take that as a ground under sec. 105 and that it did not really matter what relief the appellate court was able to give on appeal from the final decree. I have given this matter may most careful and anxious consideration and although I confess that the question is not free from difficulty, it appears to me that the question of territorial jurisdiction stands on a somewhat different footing from the question of burden of proof; and, therefore the decision in Ibrahim's case cannot be held to govern a case like the present. It seems to me that although it may be said that a wrong burden of proof is, more often than not. likely to affect the decision of a case on the merits, the same cannot be said of a wrong decision on the question of jurisdiction. If a suit is filed in court A instead of in court B - both courts being of the same status and administering the same laws - how can it be said with any justification that a wrong decision as to jurisdiction is "likely" to cause a failure of justice or to affect the decision on the merits. It is of course conceivable that in certain cases a wrong decision as to jurisdiction may cause a failure of justice where it may be well-night impossible for the party concerned to produce certain witnesses or to carry voluminous documentary evidence; but these exceptional cases apart, a wrong decision on the question of jurisdiction does not appear to me necessary to import a failure of justice in the trial. Then again, there is sec. 21 C. P. C. which seems to have a bearing on the question. The object of that section is to bolt and bar the door against the raising of any objection as to territorial jurisdiction unless certain conditions are fulfilled, which conditions 1 have already specified above, and, I may repeat, that the one important condition is that there should have occurred a failure of justice on account of the question of jurisdiction having been wrongly decided. It is only when this condition can be said to have been ful-filed that the appellate or the revisional court will entertain the objection as to territorial jurisdiction and if it is not fulfilled, then no objection as to territorial jurisdiction can be raised at all. It was argued by learned counsel for the opposite party that sec. 21 does not provide that an objection as to place of suing cannot be raised by the party aggrieved, and all it says it that it shall not be allowed unless certain conditions were fulfilled. In other words, what he says is that even though there is a bar to the objection being allowed in appeal under sec. 21 except under certain conditions, the objection can certainly be raised whether such conditions exist or not and if the objection as to jurisdiction can be raised, then this Court cannot entertain the revision according to the rule laid down in the Full Bench decisions of this Court cited above. I do not feel persuaded to agree to this line of reasoning, It seems to me that if an objection as to territorial jurisdiction. Simplicitor shall not be allowed by any appellate or revisional court, it is idle to say that such an objection can be raised at all. On the other hand, it would be nearer the mark to say that in such cases you cannot raise any objection as to the place of suing, and if you cannot raise the objection which you want to raise now at the time of appeal to the High Court, it will not be correct to say that it is open to a party to raise a ground of appeal under sec. 105 within the meaning of Swaroopnarain's case or Ibrahim's case. In other words, the true position in a case like the present appears to be this that the question which the petitioner wishes to raise at this stage of the case cannot be raised at the time of appeal, and the question which he could raise at the time of appeal would have to be essentially different from and far more difficult than the question which he seeks to raise at this juncture. The precise question that the petitioner raises at the present moment is that the court at Ratangarh has no jurisdiction to entertain the case against him as that court does not possess any jurisdiction according to the principles of law embodied in secs. 16 to 20 of the Code of Civil Procedure which govern the question of jurisdiction; and this question is sought to be raised irrespective of any consideration of failure of justice within the meaning of sec. 21 of the C. P. C. To me it appears that such a question he can raise now or never. I am, therefore, disposed to hold that it is not a question which could be made a ground of attack in the memorandum of appeal in the appellate court within the meaning of sec, 105 C. P. C. In this view of the matter, this part of the preliminary objection also fails. A large number of cases were cited before me on behalf of both parties but I refrain from mentioning them as the decision on the point really turns on the interpretation put by our own High Court on sec. 115 C. P. C. in the two Full Bench cases which I have discussed above. As the preliminary objection does not succeed, the case will be set down for hearing on the merits. . ;