Vineet Kothari, J. - (1.) THIS appeal by State of Rajasthan through the Secretary, Medical and Health Department, Jaipur and the Senior Medical Officer, Incharge, Upgraded Primary Health Centre, Jhadol, Distt. Udaipur, has been filed against the claimants and owner of the vehicle against the award of the Motor Accidents Claims Tribunal, Ajmer deciding the Claim Peti- tion No. 388 of 2006 (340 of 2006) on 8.9.2008 in respect of an accident which took place on 18.6.2005 at 9.30 a.m. at Jhadol, Distt. Udaipur. Since the claimants were residing at Ajmer, in accordance with the provisions of section 166 (2) of the Motor Vehicles Act, 1988, they could file claim petition at the place of their residence besides the place where the accident took place and, therefore, they preferred to file said claim petition before the learned M.A.C.T., Ajmer and the said claim petition came to be decided by the learned Tribunal on 8.9.2008 awarding a sum of Rs. 11,73,000 in favour of the claimants for the death of one person of 43 years of age, named Homkishore. The death in question also took place in a hospital at Udaipur and when he was being taken to said hospital in ambulance belonging to State Government registered at RJ 27-E 1037. Thus, the accident and death took place at Udaipur which district falls within the territorial jurisdiction of the principal seat of Rajasthan High Court at Jodhpur, whereas the claim petition was decided by the Tribunal at Ajmer which is within the territorial jurisdiction of Jaipur Bench of this court. In this context, an appeal has been filed challenging the said award at the principal seat of Rajasthan High Court at Jodhpur since the place of accident giving rise to said cause of action of filing claim petition and then the State-owner of the vehicle filing present appeal arose at Udaipur, whereas the learned counsel for the State submitted on the office objection No. 2 as to territorial jurisdiction that since the Tribunal which has passed the impugned order is situated at Ajmer, therefore, this appeal would lie before the Bench at Jaipur of this court in whose jurisdiction the District Ajmer falls and, therefore, this appeal may be transferred to Jaipur Bench of this court.
(2.) SINCE the Registry has raised objection by way of a defect No. 2 about the question of territorial jurisdiction of the principal seat of Rajasthan High Court and it was also submitted by the learned Dy. Government Counsel Mr. Yashpal Khileree appearing for the appellant State that this appeal may be transferred to Jaipur Bench of this court, this court after hearing him and hearing the arguments of amicus curiae Mr. Anand Purohit, A.A.G. and President of Rajasthan High Court Lawyers' Association and Mr. M.R. Singhvi, Advocate who were called upon to assist the court on the said issue, has considered it appropriate to decide the question of territorial jurisdiction first before dealing with the merits of appeal. The question of territorial jurisdiction of the principal seat of Rajasthan High Court at Jodhpur and Bench at Jaipur has come up for judicial scrutiny more often than not and despite the principles of deciding the territorial jurisdiction being well settled, choosing of forum as per convenience and filing of cases at the places other than the place where the cause of action actually arose by litigants and the counsel, has kept this issue raking up again and again and, therefore, this court considers it appropriate to deal with the said question once again. Territorial jurisdiction: Admittedly, in the present case, the accident took place at Udaipur and death of the person for whom claimants approached the Motor Accidents Claims Tribunal, Ajmer also happened at Udaipur which admittedly and indisputably falls within the territorial jurisdiction of principal seat of Rajasthan High Court at Jodhpur, whereas the Tribunal which has decided the said claim petition was located at Ajmer since the claimants resided at Ajmer and they preferred to approach the said Tribunal at Ajmer in accordance with the provisions of section 166 (2) of the Motor Vehicles Act, 1988 and Ajmer indisputably falls within the territorial jurisdiction of Jaipur Bench of the Rajasthan High Court. The question thus is whether this appeal against the said award of the M.A.C.T., Ajmer can be entertained here at principal seat of Rajasthan High Court at Jodhpur or deserves to be transferred to Jaipur Bench of this court as prayed by the learned Dy. Government Counsel appearing for the appellant State. The leading judgment dealing with jurisdiction of the principal seat at Jodhpur and Bench at Jaipur for Rajasthan High Court is the decision of Hon'ble Supreme Court in the case of Rajasthan High Court Advocates Association v. Union of India, AIR 2001 SC 416 and the relevant extract of the said judgment is as under: "R.C. Lahoti, J.-The present State of Rajasthan came into being on 1.11.1956 in accordance with the States Reorganization Act, 1956 (hereinafter 'the Act') consisting of the territories mentioned in section 10 thereof. Sub-section (2) of section 49 mandates a High Court being established for the new State of Rajasthan as from the appointed day, i.e., 1.11.1956. On 27.10.1956, the President of India in exercise of the powers conferred by sub-section (1) of section 51 of the Act, directed Jodhpur to be the principal seat of the new High Court for the State of Rajasthan. Initially the Chief Justice of the State had established a temporary Bench of the High Court of Rajasthan at Jaipur but eventually while exercising the power conferred by subsection (2) of section 51 of the Act the President on 31.1.1977 issued an order which reads as under: 'In exercise of the powers conferred by sub-section (2) of section 51 of the States Reorganization Act, 1956 (37 of 1956), the President, after consultation with the Governor of Rajasthan and the Chief Justice of the High Court of Rajasthan, is pleased to make the following order, namely: (1) Short title and commencement: (1) This order may be called the High Court of Rajasthan (Establishment of a Permanent Bench) Order, 1976. (2) It shall come into force on 31.1.1977. (2) Establishment of a permanent Bench of the Rajasthan High Court at Jaipur: There shall be established a permanent Bench of the High Court of Rajasthan, being not less than five in number, as the Chief Justice of that High Court may, from time to time nominate, shall sit at Jaipur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kota, Sawai Madhopur, Sikar and Tonk. Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class or cases arising in any such district shall be heard at Jodhpur. New Delhi Sd/ - F.A. Ahmad 8.12.1976 President' (2) On 23.12.1976, the then Acting Chief Justice of the High Court of Rajasthan issued the following order carving out jurisdiction between the cases to be heard at Jodhpur principal seat and the Jaipur Bench seat: 'RAJASTHAN HIGH COURT, JODHPUR Notification No. 1/J.B. Dated: 23.12.1976 In pursuance of the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976, and in exercise of the powers under sub-section (2) of section 44 of the Rajasthan High Court Ordinance, 1949, read with subsections (54) and (57) of the States Reorganization Act, 1956, the Hon'ble Chief Justice has been pleased to order that with effect from the 31.1.1977: (a) all the cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chittorgarh, Churu, Dungar- pur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur (except such case or class of cases as may by special order be transferred to the Jaipur Bench) shall be disposed of by the court at Jaipur (sic Jodhpur): Provided that a Vacation Judge, whether sitting at Jodhpur or at Jaipur may hear any case irrespective of the district in which it has arisen for the purpose of deciding any matter which in his opinion requires immediate action. Explanation: A writ case shall be deemed to arise in the district where the first order pertaining to that case was passed by a court, Tribunal or authority irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision. Sd/ - Ved Pal Tyagi Chief Justice 23.12.1976' (3) On 12.1.1977 the learned Acting Chief Justice issued yet another order substituting a new explanation now forming part of the order dated 23.12.1976, which reads as under: 'In the above order for the Explanation the following may be substituted: Explanation: A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a court, Tribunal or authority has arisen irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision. Sd/ - Ved Pal Tyagi Chief Justice 12.1.1977' (4) The validity of the Presidential Order dated 8.12.1976 as also of the above said orders of the Acting Chief Justice was put in issue on very many grounds but the same has been turned down by a Division Bench of the High Court of Rajasthan. [See Ram Rakh v. Union of India, AIR 1977 Raj 243]. Briefly it may be stated that the grounds on which challenge was laid to the order of the Acting Chief Justice were: "(1) Unless the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976 comes into force, the Acting Chief Justice could not have passed any order under its authority; (2) The Acting Chief Justice could not have passed any order for the transfer of pending cases or the cases instituted at the main seat at Jodhpur up to 31.1.1977 under the authority of the Presidential Order, in as much as the Presidential Order is clearly prospective in operation; (3) Under the proviso to the Presidential Order, cases falling within the jurisdiction of the Jaipur Bench could be withdrawn to the main seat at Jodhpur and not vice versa; (4) The Acting Chief Justice cannot decide, in his administrative capacity, the fact of jurisdiction for the purpose of allocation of cases to the Jaipur Bench on the basis of cause of action. (9) The Presidential Order having established a permanent Bench of the High Court of Rajasthan at Jaipur and having appointed the minimum number of Judges as would sit at Jaipur proceeded to declare that the permanent Bench seat at Jaipur shall exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in the districts, 11 in number, as mentioned therein. A discretionary jurisdiction is also conferred on the Chief Justice of the High Court to order that any case or class of cases arising in any district forming part of territorial jurisdiction of the permanent Bench at Jaipur shall be heard at Jodhpur (principal seat). The Presidential Order is clear. The jurisdiction allocated to the permanent Bench at Jaipur is by reference to territory covered by the 11 specified districts. The proviso appended to para 2 of the Presidential Order speaks of 'any case or class of cases' but therefrom too a power in the Chief Justice to define cause of action cannot be spelled out. (10) The nature and extent of power conferred on the President by section 51 of the Act came up for the consideration of this court in State of Maharashtra v. Narayan Shamrao Puranik, AIR 1983 SC 46. It was held: 'It is clear upon the terms of section 51 of the Act that undoubtedly the President has the power under sub-section (1) to appoint the principal seat of the High Court for a new State. Likewise, the power of the President under subsection (2) thereof, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, pertains to the establishment of a permanent Bench or Benches of that High Court if a new State at one or more places within the State other than the place where the principal seat of the High Court is located and for any matters connected therewith clearly confer power on the President to define the territorial jurisdiction of the permanent Bench in relation to the principal seat as also for the conferment of exclusive jurisdiction to such permanent Bench to hear cases arising in districts falling within its jurisdiction. The creation of a permanent Bench under sub-section (2) of section 51 of the Act must therefore, bring about a territorial bifurcation of the High Court.' (11) The establishment of a permanent Bench at Jaipur and defining its territorial jurisdiction brought out a bifurcation of State of Rajasthan into two for the purpose of division of territorial jurisdiction of the High Court between the principal seat and the permanent Bench seat. The Chief Justice of the State cannot, thereafter, artificially or indirectly take away the jurisdiction belonging to one and confer it on the other. Conferring a discretion on the Chief Justice to order any case or class of cases arising in any district within the territorial jurisdiction of permanent Bench at Jaipur shall be heard at Jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case. (12) Section 44 of Rajasthan High Court Ordinance, 1949 provides as under: '44. Distribution of business and administrative control: (1) The High Court may, by its own rules, provide as it thinks fit for the exercise by one or more Judges, or by Division Courts constituted by two or more Judges of the High Court, of its original and appellate jurisdiction. (2) The Chief Justice shall be responsible for the distribution and conduct of the business of the High Court, and shall determine which Judge in each case will sit alone and which Judges of the court will constitute a Bench. (3) The administrative control of the High Court shall vest in the Chief Justice who may exercise it in such manner and after such consultation with the other Judges as he may think fit or may delegate such of his functions as he deems fit to any other Judges of the High Court.' (13) Sub-section (2) above said has to be read along with sub-section (1). It entrusts the Chief Justice with responsibility for distribution and conduct of the business of the High Court and to determine which Judge shall sit singly and which in a Bench. The responsibility entrusted carries with it, as a necessary concomitant, the power needed in the Chief Justice to effectively fulfil the responsibility. The provision is what is popularly called, a power to frame a roster. This provision too does not vest the Chief Justice with power to enact an explanation as is in question. Roster is framed generally by identifying particular subject-matter or nature of cases which will be listed for hearing before different Benches consistently with the rules of business of the court. Thereafter listing of cases is to be done by the Registrar in a routine. Power to frame a roster vests the Chief Justice with an administrative control over the distribution of judicial work of the court. It has nothing to do with how a Judge would then judicially function in dealing with a case listed before him as per roster. A writ case when listed before a Judge for hearing as per roster may be heard or refused to be heard by him depending on his opinion formed on the judicial side on the question whether the cause of action in that case arises within the territorial jurisdiction of the Bench seat or not. Whether or not a case arisen in a district lying within the jurisdiction of Bench seat-is a question to be decided judicially, in case to case, and not by an administrative order of the Chief Justice made generally. (14) Section 54 of the Act speaks of practice and procedure in the High Court. Section 57 speaks of powers of the Chief Justice, single Judges and the Division Benches of the High Court and provides that the laws in force immediately before the appointed day relating to such powers and with respect to the matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court for a new State. None of the two provisions can spell out any legislative power having been conferred on the Chief Justice to define cause of action. (17) The expression 'cause of action' has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in 'cause of action'. It has to be left to be determined in each individual case as to where the cause of action arises. The Chief Justice of the High Court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases. The permanent Bench at Jaipur has been established by the Presidential Order issued under subsection (2) of section 51 of the Act. The territorial jurisdiction of the permanent Bench at Jaipur is to be exercised in respect of the cases arising in the specified districts. Whether the case arises from one of the specified districts or not so as to determine the jurisdiction competence to hear by reference to territory bifurcated between the principal seat and the Bench seat, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a question may arise in that regard. The impugned explanation appended to the order of the Chief Justice dated 23.12.76 runs counter to the Presidential Order and in a sense it is an inroad into the jurisdiction of the Judges hearing a particular case or cases, pre-empting a decision to be given in the facts of individual case whether it can be said to have arisen in the territory of a particular district. The High Court is right in taking the view which it has done. (18) It was submitted at the end by the learned counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent Bench at Jaipur shall have 'exclusive jurisdiction' to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word 'exclusive' prefixed to 'jurisdiction' is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent Bench seat at Jaipur. The cases are to be heard accordingly, unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential Order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent Bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent Bench seat of any High Court. In case of a dispute arising as to whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test-from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising jurisdiction under Article 226 of the Constitution.." (Emphasis added) Thus this judgment dealt with the issue of territorial jurisdiction of principal seat at Jodhpur and Bench at Jaipur in detail and it was held that it would depend upon the place where the cause of action arose. The crux of the matter to decide the territorial jurisdiction as to which High Court or which Bench of a High Court can entertain and decide the case on merits is to see where the 'cause of action' arises. The words 'cause of action', is not defined in any statute, Civil Procedure Code or Constitution of India and, therefore, the judicial interpretative process over the period is the source for understanding this term. What is 'cause of action':
(3.) THE expression 'cause of action' is expressed in Mulla's Code of Civil Procedure as under: " 'the cause of action' means every fact which if traversed would be necessary for the plaintiff to prove in order to support his right to a judgment of this court." The Hon'ble Supreme Court in recent judgment in Kusum Ingots Alloys Ltd. v. Union of India, (2004) 6 SCC 254, interpreted the words 'cause of action' as under: "Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted, inter alia, to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. The entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material fact is also known as integral facts. All necessary facts must form an integral part of the cause of action." (Emphasis added) In Bloom Dehor Limited v. Subhash Himatlal Desai, (1994) 6 SCC 322, referring to English case-law interpreted the said term cause of action as under: "By 'cause of action' it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. This court had occasion to refer to the case of Cooke in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. At page 98 it is stated thus: 'The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas', Dorman v. J.W. Ellis and Co. Ltd. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time'." ;