Kerala High Court
G.Ayyappan Ppillai vs State Of Kerala on 18 March, 2009
Equivalent citations: AIR 2009 (NOC) 2286 (KER)
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CMA.No. 25 of 2000()
1. G.AYYAPPAN PPILLAI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.R.RAJENDRAN NAIR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/03/2009
O R D E R
"C.R."
THOMAS P.JOSEPH, J.
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C.M.A. No.25 of 2000
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Dated this the 18th day of March, 2009
J U D G M E N T
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Can the court within whose territorial jurisdiction the consequence ensued from the wrong done to movables beyond its territorial jurisdiction entertain a suit for compensation for the wrong done is the question for a decision in this Civil Miscellaneous Appeal.
2. Appellant purchased 1.278mt of teak wood from Peechi depot of the Forest Department in the auction held on 20.10.1991 for his house construction and according to him, after complying with the legal formalities he was transporting the timber in a lorry to the site of house construction at Maradu in Kanayannur Taluk on 26.4.1992. It was intercepted by respondent No.2 at Karukutty Sales Tax Check Post alleging that appellant had no valid documents. Respondent No.2 refused permission to the appellant to proceed further with the timber to its destination. Appellant was allowed to proceed only on the next day on his paying Rs.9,454/-. On 26.8.1992 the Sales Tax Officer at Ernakulam ordered refund of the said amount. Alleging that the said mala-fide act of respondent No.2 caused loss to him including travelling expenses to go to different places including Ernakulam and additional payment made to the owner of the lorry for transporting the C.M.A. No.25 of 2000 -: 2 :- timber (to Ernakulam), appellant sued the respondents for compensation to the tune of Rs.50,000/-. Appellant stated in the plaint that cause of action for the suit arose when respondent No.2 stopped the lorry with the timber on 26.4.1992 (at Karukutty) and detained the same till the next day and when the Sales Tax Officer allowed refund of the amount at Ernakulam on 26.8.1992. Suit was filed in the Sub Court, Ernakulam. Respondents, among other things, contended that the said court has no territorial jurisdiction to try the suit (as the alleged incident occurred at Karukutty, beyond its territorial jurisdiction). Learned Sub Judge did not frame an issue regarding territorial jurisdiction but, an issue 'whether the suit is maintainable' was framed. Parties went for trial. Appellant examined P.Ws.1 to 3 and marked his documents. Respondents examined D.W.1 in part. At that stage, learned Sub Judge considered the question of alleged lack of territorial jurisdiction and by the impugned order found that the said court has no territorial jurisdiction to entertain the suit. Learned Sub Judge was of the view that refund of the amount by the Sales Tax Officer, Ernakulam did not create any cause of action for the appellant and directed that the plaint be returned for presentation before the proper court. That order is under C.M.A. No.25 of 2000 -: 3 :- challenge in this appeal.
3. Learned counsel for appellant contended that under Section 20 of the Code of Civil Procedure (for short. "the Code") it is sufficient that a part of cause of action arose within the local limits of the court before which the proceeding is initiated. According to the learned counsel the order of refund passed by the Sales Tax Officer, Ernakulam formed part of cause of action for the suit which is sufficient to confer territorial jurisdiction for the Sub Court, Ernakulam to try the suit. Learned Government Pleader appearing for the respondents maintained the stand that since the cause of action arose at Karukutty which is beyond the territorial jurisdiction of the Sub Court, Ernakulam the suit was not maintainable in that court.
4. Learned Sub Judge has proceeded on the assumption that Sec.20 of the Code applied to the facts of the case. Place of suing when compensation is claimed for wrongs to person or movables is dealt with under Sec.19 of the Code. Section 19 of the Code reads thus:
"Suits for compensation for wrongs to person or movables.- Where a suit is for compensation for wrong done to the person or C.M.A. No.25 of 2000 -: 4 :- to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts".
As per Sec.19 of the Code, the suit could be filed either in the court having territorial jurisdiction over the place where the "wrong was done" or where the defendant resides or carries on business, or personally works for gain. Respondent No.1 is the State of Kerala impleaded as defendant in view of the provisions of Order XXVII, Rule 5A of the Code. Respondent No.2 who allegedly wronged the appellant by stopping movement of the timber has his office outside the territorial jurisdiction of the Sub Court, Ernakulam. Then the question is whether the "wrong was done" within the territorial jurisdiction of the Sub Court, Ernakulam.
5. What is meant by the phrase "wrong done"? Is it confined to the mere wrongful act alone? In Words And Phrases", Permanent Edition, Vo.46, Page No.483 the word "wrong" is given the following meaning:
C.M.A. No.25 of 2000 -: 5 :-
"Wrong" means any deprivation of right, breach of contract, or injury done by one person to another". (O'Connor v. Dils, 26 S.E. 354, 355).
"Wrong" in law means a violation of the legal rights of another; an invasion of right to the damage of the parties who suffer it, especially a tort". (Donelen v. Denser, 134 S.W. 2d. 132, 133).
A "wrong" involves the violation of one's right. "Wrong done" includes the effect of the act and the resultant damage. If the act does not lead to any consequence or damage, such act may not be actionable. Therefore the phrase "wrong done" occurring in Sec.19 of the Code should be understood as including the effect of the act. This view gets support from the decisions of the learned Single Judges of the Bombay and Gauhati High Courts, in State of Maharashtra v. Sarvodaya Industries (AIR 1975 Bombay 197) and State of Meghalaya and Others v. Jyostna Das (AIR 1991 Gauhati
96). In State of Maharashtra's case movement of movables C.M.A. No.25 of 2000 -: 6 :- belonging to the plaintiff to its factory at Akola was stopped by the defendant outside the territorial jurisdiction of the Akola Court. The resultant damage to the plaintiff took place at Akola. It was held that the Court at Akola had jurisdiction to entertain the suit.
7. In this case it is stated in the plaint that it was for the house construction (at Ernakulam) that appellant purchased timber from the Forest Department. It is also sated that the timber was being transported by road to Ernakulam. Exhibits A3, A5 and A14 produced along with the plaint state that the destination was Maradu, Ernakulam. Since Exts.A3, A5 and A14 are produced along with the plaint, that also have to be considered along with the plaint averments for determining territorial jurisdiction. As movement of the timber was stopped at Karukutty on 26.4.1992 it could not be brought to Ernakulam that day. Appellant alleged that due to the illegal stoppage of movement of the timber, he had to travel to Ernakulam incurring expense, make additional payment to the owner of the lorry and thus suffered loss. The effect of the alleged wrongful act of respondent No.2 was felt at Ernakulam as well. In such a situation in my opinion Sec.19 of the Code would apply and the court within whose jurisdiction such effect was felt also has jurisdiction to entertain the suit. C.M.A. No.25 of 2000 -: 7 :-
7. Section 21 of the Code mandates that every objection as to the place of suing has to be taken (in the court of first instance) at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. In this case respondents raised a contention that the court has no territorial jurisdiction. The issue framed is 'whether the suit is maintainable'. Assuming that the issue framed is as to the alleged lack of territorial jurisdiction the court should have decided the issue before the parties went into trial of the suit. In this case the order to return the plaint for presentation in the proper court was passed after the appellant produced his evidence and part of the evidence of the respondents was recorded. This in my view is not in accordance with the message contained in Sec.21 of the Code. Proper course to be followed is that if objection as to the place of suing is taken before the court of first instance as required under Sec.21, it is decided at the earliest point of time to avoid hardship to the parties. Unlike in a case of lack of inherent jurisdiction, an objection as to territorial jurisdiction can be waived which can be express or implied. An implied waiver can be gathered by the conduct of the person who is said to have waived the right. In this case though respondents raised a contention regarding lack of territorial C.M.A. No.25 of 2000 -: 8 :- jurisdiction, they cross-examined the appellant and his witnesses and even examined their witness in part. Hence respondents can be deemed to have waived their objection as to territorial jurisdiction.
8. In view of the interpretation given to the phrase "wrong done" occurring in Sec.19 of the Code and the factual situation stated above, I am of the view that the Sub Court Ernakulam has jurisdiction to try the suit.
This appeal succeeds. The order under challenge is set aside. Learned Sub Judge is directed to proceed with the trial and dispose of the case as expeditiously as possible.
Parties are directed to appear in the Sub Court, Ernakulam on 27.5.2009. No costs.
THOMAS P.JOSEPH, JUDGE.
vsv THOMAS P.JOSEPH, J.
=================== C.M.A. NO.25 OF 2000 =================== J U D G M E N T 18TH MARCH, 2009