SREE MOHAN RICE & OIL MILLS Vs. HINDUSTAN MOTOR LTD. AND OTHERS

JUDGEMENT

(1.) THESE two applications under Section 115 of the Code of Civil Procedure, one by the plaintiff and the other by, defendant No. 3, arise out of the same order dated 13th December, 1969 passed by the Assistant District Judge, Darrang, at Tezpur in Title Suit No. 20 of 1969.

(2.) THE plaintiff filed the aforesaid suit for rescission of a contract for purchase of a vehicle under a hire -purchase agreement and for compensation of Rs. 12,831/ -. Defendant No. 3 entered appearance, but did not file any written statement; he merely filed an application under Section 151 of the Code of Civil Procedure alleging, inter alia, that his place of business was at Calcutta outside the jurisdiction of the Court and that under the terms and condition of the hire -purchase agreement the Courts at Calcutta alone, and no other court, had jurisdiction to try any suit in respect of any claim or dispute arising out of the said agreement or in any way relating to the same. It was alleged that the said hire -purchase agreement was binding on the parties. The plaintiff filed an objection to the aforesaid application under Section 151 of the Code of Civil, Procedure filed by the defendant No. 3, contending that the aforesaid application was not tenable in law. The only point that arises for Consideration in these matters is whether the learned court below had jurisdiction to decide the point whether or not he had jurisdiction to try the suit on an application filed under Section 151 of the Code of Civil Procedure by the defendants or any of them, not raised in any written statement filed by them. Section 151 of the Code of Civil Procedure merely preserves inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

(3.) IT is therefore clear that on receipt of summons the defendants may appear and admit the claim of the plaintiff whereupon the claim should be decreed. If he does not admit and wants to contest the plaintiffs claim on any plea, he is to file a written statement of his objection, whereupon issues will be settled. The defendant in his written statement may also take the plea that the Court has no jurisdiction, territorial or pecuniary, to try the suit. The Court is then to try it as a preliminary issue. If he finds that he does not have jurisdiction, then he is to return the plaint to the plaintiff. Unless a written statement is filed, and the allegations made in the plaint or some of them are denied, no issue is, or issues, are raised. The learned trial Court erred in interpreting, Section 21 of the Civil Procedure Code as enabling the defendant to file his preliminary objection as to lack of court's jurisdiction. Section 21 merely provides that if the defendant does not raise any objection as to the place of suing in the Court of the first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, he cannot raise that plea in the Court of appeal or revision. It does not create a forum for raising the plea of Court's lack of jurisdiction by the defendant. Unless a written statement is filed no issue can be raised and no evidence can be gone into.