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TMI Blog2005 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... was right in holding that it had no jurisdiction. The learned counsel for the appellant drew out attention to Rule 32 of Order XXI of the Code which relates to execution. It, however, presupposes a decree passed in accordance with law. Only thereafter such decree can be executed in the manner laid down in Rules 32, 34 or 35 of Order XXI. Those provisions, therefore, have no relevance to the question raised in the present proceedings.Hence no case has been made out by the appellant against the order passed by the trial court and confirmed by the High Court. The appeal, therefore dismissed. - C. A. 2726 - - - Dated:- 26-9-2005 - Arijit Pasayat C.K. Thakker, JJ JUDGMENT This appeal is filed by the appellant against the order passed by the Additional District Judge, Delhi on May 25, 1998 in Suit No. 1036 of 1994 and confirmed by the High Court of Delhi on November 01, 1999 in Civil Revision Petition No. 506 of 1998 holding that Delhi Court has no jurisdiction to try the suit and the plaint should be returned to the plaintiff for presentation to proper court. To appreciate the controversy raised in this appeal, admitted and/or undisputed facts may be noted. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.4.88 and further accepting the payments of the due instalments with regard to the plot from the plaintiff in accordance with the terms and conditions of the agreement, and execute a sale deed in favour of the plaintiff after the full money is paid to the Defendant No. 1 as per clause (22) of the agreement; d) pass a decree of permanent injunction restraining the Defendants from allotting, selling, transferring, alienating in any manner whatsoever the said plot No. L-31/4 DLF Qutub Enclave Complex, Gurgaon (Haryana) to any person other than the plaintiff and further restrain them from interfering in any manner whatsoever with the possession or rights of the plaintiff after the said plot has been handed over to the plaintiff; e) pass a decree of delivery of possession against the Defendant No. 1 directing him to hand over vacant and peaceful possession of the plot No. L-31/4 DLF Qutub Enclave Complex, Gurgaon (Haryana) to the plaintiff, or in the event, the said plot is already allotted and handed over to some other person by the Defendant No. 1, another plot in the same Complex of equivalent area in identical location be handed over to the plaintiff by the Defendant No. 1. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls within the ambit of Section 16(d) of the Code of Civil Procedure and the proviso thereto has no application on the facts of the present case. In view of my above discussion, it is held that the Delhi Civil Court has no jurisdiction to try the present suit and as such, the Plaint in the present suit is returned to the Plaintiff for presentation in the Proper Court. Parties through their counsel are directed to present in the proper Court on 5.6.1998." Being aggrieved by the said order, the appellant approached the High Court by filing Civil Revision Petition No. 506 of 1998 which also came to be dismissed. Against the said order, the appellant has approached this Court. Notice was issued on December 06, 1999 and parties were directed to maintain status quo. On April 17, 2000, leave was granted, operation of the judgment was stayed and the Additional District Judge, Tis Hazari, Delhi, was allowed to proceed with the suit but it was stated that he would not deliver judgment "until further orders". Status quo granted earlier was ordered to be continued. The appeal has now come up for final hearing. We have heard learned counsel for the parties. Ms. Indu Malhotra, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was submitted that at the time of granting leave and admitting appeal, this Court permitted the trial court to proceed with the matter. Accordingly, the evidence was led by the parties and the trial is concluded. In view of the order of this Court, the trial court could not deliver the judgment. Considering the fact that the agreement was executed in August, 1985 and more than two decades have passed, this Court may issue necessary direction to the trial court to deliver judgment. Mr. Rohatgi, Senior Advocate appearing for the respondents, on the other hand, supported the order passed by the trial court and confirmed by the High Court. He submitted that the suit relates to specific performance of agreement relating to immovable property. In accordance with the provisions of Section 16 of the Code, such suit can be instituted where the immovable property is situate. Admittedly the property is situate in Gurgaon (Haryana). Delhi Court, therefore, has no jurisdiction to entertain the suit which is for specific performance of agreement of purchase of a plot - immovable property - situate outside Delhi. According to the counsel, even if it was not contended by the defendants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age property, or for determination of any other right or interest in immovable property, or for compensation for wrong to immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Proviso to Section 16 declares that where the relief sought can be obtained through the personal obedience of the defendant, the suit can be instituted either in the court within whose jurisdiction the property is situate or in the court where the defendant actually or voluntarily resides, or carries on business, or personally works for gain. Section 17 supplements Section 16 and is virtually another proviso to that section. It deals with those cases where immovable property is situate within the jurisdiction of different courts. Section 18 applies where local limits of jurisdiction of different courts is uncertain. Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to movable property. Section 20 is a residuary section and covers all those cases not dealt with or covered by Sections 15 to 19. Section 16 thus recognizes a well established principle that actions against res or property should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication. In our opinion, the submission of the learned counsel for the appellant that the parties had agreed that Delhi Court alone had jurisdiction in the matters arising out of the transaction has also no force. Such a provision, in our opinion, would apply to those cases where two or more courts have jurisdiction to entertain a suit and the parties have agreed to submit to the jurisdiction of one court. Plain reading of Section 20 of the Code leaves no room of doubt that it is a residuary provision and covers those cases not falling within the limitations of Sections 15 to 19. The opening words of the section "Subject to the limitations aforesaid" are significant and make it abundantly clear that the section takes within its sweep all personal actions. A suit falling under Section 20 thus may be instituted in a court within whose jurisdiction the defendant resides, or carries on business, or personally works for gain or cause of action wholly or partly arises. It is, no doubt true, as submitted by Ms. Malhotra that where two or more courts have jurisdiction to entertain a suit, parties may by agreement submit to the jurisdiction of one court to the exclusion of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Co. Ltd. Others (2004) 4 SCC 677). The question, however, is whether Delhi Court has jurisdiction in the matter. If the answer to that question is in the affirmative, the contention of the plaintiff must be upheld that since Delhi Court has also jurisdiction to entertain the suit and parties by an agreement had submitted to the jurisdiction of that court, the case is covered by Section 20 of the Code and in view of the choice of forum, the plaintiff can be compelled to approach that court as per the agreement even if other court has jurisdiction. If, on the other hand, the contention of the defendant is accepted and it is held that the case is covered by Section 16 of the Code and the proviso to Section 16 has no application, nor Section 20 would apply as a residuary clause and Delhi Court has no jurisdiction in the matter, the order impugned in the present appeal cannot be said to be contrary to law. As we have already indicated, the suit relates to specific performance of an agreement of immovable property and for possession of plot. It is, therefore, covered by the main part of Section 16. Neither proviso to Section 16 would get attracted nor Section 20 (residuary provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity. In Halsbury s Laws of England, (4th edn.), Reissue, Vol. 10; para 317; it is stated; 317. Consent and waiver. Where, by reason of any limitation imposed by statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han the court where the property is situate can entertain such suit. Hence, even if there is an agreement between the parties to the contract, it has no effect and cannot be enforced. In Setrucharlu v. Maharaja of Jeypore, 46 IA 151 : AIR 1919 PC 150, a suit was instituted in subordinate court for possession of mortgage property partly situated in Vizagapatam and partly in a Schedule District to which the provisions of the Code did not apply. No objection as to jurisdiction of the court was taken by the defendant and the decree was passed. In appeal, however, such objection was taken by the defendant. Relying on Section 21 of the Code, the High Court overruled the objection. The defendant approached the Privy Council. Upholding the contention and partly reversing the decree, the Judicial Committee of the Privy Council stated; "The learned Judges of the Court of Appeal thought that the matter was met by Section 21 of the Code, which provides that no objection as to the place of suing shall be allowed by any appellate court unless the objection was taken in the court of First Instance, which in this case had admittedly not been done. Their Lordships cannot agree with this view. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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