Delhi High Court
Arunesh Punetha vs Boston Scientific Corporation ... on 25 August, 2005
It is a settled rule of law that the plea of rejection of plaint is founded on the "PLEA OF DEMURRER". A person raising such plea in law has to take the facts as stated by the opponent as correct. Despite tentative admission of such correctness, the plaint does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by judicial pronouncement of various courts so as to take within its ambit even the documents filed by the plaintiff Along with plaint or subsequent thereto but prior to the hearing of such application. It would be more so where the documents have been referred to in the plaint itself. But the defense raised by the defendants in his written statement or the documents filed along therewith certainly falls beyond the zone of consideration, where an application for rejection of a plaint is being considered by the Court. The language of the rules does not admit any scope for doubt that the written statement filed by the defendant cannot be referred or relied upon by the applicants for decision of such application. Whether the plaint discloses any cause of action or not, is a question found on the basic cause of action pleaded by the plaintiff in his plaint. It must thus necessarily be construed that language of Rule 1 is circumscribed by the limitation or reading the plaint at best with its supporting documents. A Full Bench of this Court in the case of Harnam Singh v. Surjit Singh, , held as under:-
It is well settled that a cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support the right to a judgment in his favor. In other words, it is a bundle of facts which taken with the law applicable to him gives the plaintiff a right to relief against the defendant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relation whatsoever to the defense, which may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff.
Well accepted canon of civil jurisprudence makes a clear distinction between "plaintiff has no cause of action" and "the plaint does not disclose cause of action". In the earlier part, there is complete absence of a right to sue. While in the latter, the right to sue may exist, but it is not well founded on the basis of the averments made in the plaint. The plaint lacks essential and material particulars which would give an effective cause of action to the plaintiff. Where on fact of it, the plaint does not disclose any cause of action, the plaint may be liable to be rejected, but where the parties are to produce oral and documentary evidence to substantiate and support their cause of action and relief claimed for in the plaint, the Court has to consider the entire material placed on record and the suit would be liable to the decided on merit.
The above distinction was clearly stated by a Full Bench of Allahabad High Court in the case of Jagannath Prasad and Ors. v. Smt. Chandrawati and another, .
n the recent case State of Orissa v. Klockner and Company and Ors, , the Hon'ble Supreme Court of India while approving the following view taken by the learned Single Judge of the High Court dismissed the Special Leave Petition.
"From the discussion in the order it appears that the learned trial judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7 Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7, Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petitioner filed by defendant No. 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 20.4.1982 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint."
Supreme Court of India
Ramesh B. Desai And Others vs Bipin Vadilal Mehta And Others on 11 July, 2006
The plea raised by the contesting respondents is in fact a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further. In O.N. Bhatnagar vs. Smt. Rukibai Narsindas and others (1982) 2 SCC 244 (para 9) it was held that the appellant having raised a plea in the nature of demurrer, the question of jurisdiction had to be determined with advertence to the allegations contained in the statement of claim made by respondent 1 under Section 91(1) of the Act and those allegations must be taken to be true. In Roop Lal Sathi vs. Nachhattar Singh Gill (1982) 3 SCC 487 (para 24), it was observed that a preliminary objection that the election petition is not in conformity with Section 83(1)(a) of the Act i.e. it does not contain the concise statement of the material facts on which the petitioner relies, is but a plea in the nature of demurrer and in deciding the question the Court has to assume for this purpose that the averments contained in the election petition are true. Reiterating the same principle in Abdulla Bin Ali and others vs. Galappa and others (1985) 2 SCC 54, it was said that there is no denying the fact that the allegations made in plaint decide the forum and the jurisdiction does not depend upon the defence taken by the defendants in the written statement. In Exphar Sa and another vs. Eupharma Laboratories Ltd. and another (2004) 3 SCC 688 (para 9), it was ruled that where an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In this case the decision of the High Court on the point of the jurisdiction was set aside as the High Court had examined the written statement filed by the respondents in which it was claimed that the goods were not at all sold within the territorial jurisdiction of Delhi High Court and also that the respondent No. 2 did not carry out business within the jurisdiction of the said High Court. Following the same principle in Indian Mineral & Chemicals Co. and others vs. Deutsche Bank (2004) 12 SCC 376 (paras 10 and 11), it was observed that the assertions in a plaint must be assumed to be true for the purpose of determining whether leave is liable to be revoked on the point of demurrer.
The principle underlying Clause (d) of Order VII Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was held as under in para 10 of the report: -
"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
Bombay High Court
Clarinda D'Souza vs Mccann Erickson India Limited on 20 November, 2002
However, a plea that the plaint discloses no cause of action is essentially one on a demurrer. Such a plea ought to be accepted only when the Court comes to a conclusion that even if the averments in the Plaint are proved, the plaintiff would not be entitled to the reliefs claimed. The Court must therefore presume that the facts stated in the plaint are correct. In view of the drastic consequences of upholding such a plea, it is axiomatic that it ought to be accepted only in clear cases. Moreover, while considering an application for striking out the name of a defendant on the ground that Plaint discloses no cause of action against him, the Court ought to act with great circumspection and even greater restraint.
Supreme Court of India
Bhagwati Prasad vs Shri Chandramaul on 19 October, 1965
Once it is held that the plaintiff is entitled to eject the defendant, it follows that the from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages.
"In Trojan & Co. -vs- Nagappa Chettiar (AIR 1953 SC235) this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under: (AIR p.240, para 22) "22..... It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate it it an alternative case." A similar view has been reiterated by this Court in Krishna Priya Ganguly v. University of Lucknow and Om Prakash v. Ram Kumar observing that a party cannot be granted a relief which is not claimed.
Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi held: (SCC p.246, para 30) "30. .... Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."
In Fertilizer Corpn. Of India Ltd. v. Sarat Chandra Rath this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for".
In view of the above, law on the issue can be summarised that the court cannot grant a relief which has not been specifically payed by the parties. The instant case requires to be examined in the light of the aforesaid certain legal propositions."
Whether suit for declaration is maintainable when consequential relief is not claimed?
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO.25 OF 2006
The Goa State Co-operative Bank Ltd., V/s Smt. Olinda Fernandes,
The defendant no.5 had taken a categorical plea that the plaintiff
was informed by letter dated 3/10/1998 that the sale was confirmed by
sale certificate dated 20/07/1998. It was also stated by the General
Manger of defendant no.5 in his evidence that the suit property was
auctioned on 16/06/1998 and the sale was confirmed on 20/07/1998 by
order of the Recovery Officer, the defendant no.4; that the plaintiff nor
other alleged heirs had shown any interest in the suit property; that the
plaintiff or other alleged heirs never objected to the attachment, auction
or confirmation of sale. It was further deposed by him that there was no
prayer in the suit for declaring the sale certificate as null and void.
Inspite of that, the plaintiff took no steps either to seek a declaration that
the said sale certificate was null and void or for that matter for
cancellation of its registration or for the recovery of the suit property
from the possession of defendant no.12. Shri Ramani, learned Counsel
appearing on behalf of the plaintiff submits that this Court can mould
the reliefs and grant the same to the plaintiff by declaring the sale
certificate as null and void and directing cancellation of its registration.
I am unable to accede to the submission made by Shri Ramani. A
similar issue was considered by the Division Bench of this Court in the
case of Mr. Guna Krishna Gauns & Anr. V/s. Mr. Antonio Joao
Braganza @ Antush Braganza & Ors. (2009 (2) Bom.C.R. 665)
(unreported judgment dated 15/12/2008 in First Appeal No.189/2005),
to which I was a party and it was stated therein that the object of the
proviso to Section 34 of the Specific Relief Act, was to prevent
multiplicity of suits by preventing a person from getting a mere
declaration of right in one suit and then seeking the remedy without
which the declaration would be useless and which could not have been
obtained in the same suit, in another suit. A claim is said to be
consequential only when it cannot be claimed in the absence of a claim
for declaration. Otherwise it would lead to multiplicity of litigation for
the declaratory suit will have to be followed up with an ejectment action
for recovery of possession. It is well settled law that a suit for mere
declaration when consequential relief which is available and which is
not sought for, is not maintainable. Reference was made to the case of
Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) wherein
the Apex Court had stated that where the defendant is in possession of
the some of the suit properties and the plaintiff in his suit does not seek
possession of those properties but merely claims a declaration that he is
the owner of the suit properties, the suit is not maintainable. That was
the case where Gangadevi was in possession of suit property and the
plaintiffs had not sought the possession of the suit property and had
merely claimed declaration that they were the owners of the suit
property and it is in that context that the Apex Court had held that the
suit was not maintainable. Reference was also made to the case of
Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957)
wherein it was held that the failure to ask for relief of possession
undoubtedly bars the discretion of the Court in granting the decree for
declaration. The Apex Court had further observed that merely because
the plaint says in the prayer, such other relief be granted to the plaintiff,
it does not mean that without a specific plea for possession and
disregarding the bar under Section 42 (now Section 34, proviso) of the
said Act, the suit could be decreed even with reference to the portions of
which the plaintiff was in possession. In the absence of specific prayer
for the recovery of possession of the property sold by the said sale deeds
to the defendants, the suit for declaratory relief by the plaintiffs was
clearly not maintainable and in this view of the matter also, the
dismissal of the suit for main relief cannot be faulted.
Filing of multiple applications for the same relief suppressing pendency of previous applications amounts to gross abuse of process of the court:
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th June, 2020
SHOGUN ORGANICS LTD Vs GAUR HARI GUCHHAIT & ORS
When a specific question was asked to ld. counsel for the Plaintiff as to why multiple applications are being filed in respect of the same subject matter and why no disclosure was made while the matter is being continuously heard, no answer is forthcoming.
11. At the commencement of the hearing today, ld. counsel for the Plaintiff, after having been apprised of these facts sought to withdraw the application and the Court was initially inclined to permit withdrawal of the application.
12. However, Mr. Tiwari, ld. counsel appearing for the Defendant No.2 submits that the same prayer i.e., that the stock ought to be sold to the Plaintiff, has now been made before the ld. Division Bench in an appeal filed against order dated 11th June, 2020, which is listed today. The factum of filing of the appeal and the same relief having been sought was again not disclosed during today’s hearing by Ld. Counsel for the Plaintiff.
13. The filing of repeated applications and non-disclosure of the same to the Court hearing the matter, and the concealment of the correct facts from the Court clearly gives an impression to this Court that the Plaintiff’s conduct is not bonafide. In any event, the relief sought is not liable to be granted. The Defendant no.2 has been permitted by this court vide order dated 11th June 2020 to sell the stock on the same terms as was stipulated in the judgement/decree dated 14th August 2019. In fact, further safeguards such as disclosure of batch numbers have also been incorporated in the said order to ensure that only the unsold stock is sold and no fresh stock is manufactured or sold by Defendant no.2. At the time when the order was pronounced on 11th June 2020, a similar oral request that the stock should be sold to the Plaintiff or the customers to whom sales are made ought to be disclosed, was rejected by this Court. The Defendant No.2 cannot be forced to sell its products to the Plaintiff alone and not to its own customers. The relief sought is thus totally misplaced. The present application is a gross abuse of process.
This principle was recognized by the Supreme Court in Pasupuleti Venkateswarlu vs The Motor & General Traders AIR 1975 SC 1409. It was observed therein that though the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, the principle that procedure is the handmaid and not the mistress of the judicial process is also to be noted. Justice VR Krishna Iyer observed:
If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
In Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building (2010) 3 SCC 470, the court laid down conditions in which the relief can be moulded:
(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise."
Supreme Court of India
Samir Narain Bhojwani vs M/S Aurora Properties And ... on 21 August, 2018
That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:
“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (emphasis supplied)
25. The Court, amongst others, rested its exposition on the dictum in Halsbury‟s Laws of England, 4th edition, Volume 24, paragraph 948, which reads thus:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”
26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others3, Kishore Kumar Khaitan and Another Versus Praveen Kumar Singh4 and Purshottam Vishandas Raheja and Another Versus Shrichand Vishandas Raheja (Dead) through LRS.
27. In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. It cannot be countenanced.
Supreme Court of India
Gaiv Dinshaw Irani & Ors vs Tehmtan Irani & Ors on 25 April, 2014
Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or one the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson vs. State of Alabama followed in Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury. The aforementioned cases were recognized by this Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders wherein he stated that:
“…If a fact, arising after the lis has come to court and has a fundamental impact It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” The abovementioned principle has been recognized in a catena of decisions. This Court by placing reliance on the Pasupuleti Venkateswarlu Case (supra), held in Ramesh Kumar vs. Kesho Ram that:
“6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief.” This was further followed in Lekh Raj vs. Muni Lal & Ors.. This Court in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building & Ors. while discussing the issue of taking cognizance of subsequent events held that:
“19. To the same effect is the decision of this Court in Om Prakash Gupta case where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied: (SCC p. 263, para 11) “11. … (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.” This Court in Rajesh D. Darbar and Ors. vs. Narasinghro Krishnaji Kulkarni and Ors., a matter regarding the elections in a registered society, held that the courts can mould relief accordingly taking note of subsequent events. Furthermore, in Beg Raj Singh vs. State of Uttar Pradesh & Ors. while deciding on the issue of renewal of a mining lease held that:
“….A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment.” Even this Court while exercising its powers under Article 136 can take note of subsequent events (See: Bihar State Financial Corporation & Ors. vs. Chemicot India (P) Ltd. & Ors., Parents Association of Students vs. M.A. Khan & Anr., State of Uttar Pradesh & Ors. vs. Mahindra & Mahindra Ltd. )
35. Thus, when the relief otherwise awardable on the date of commencement of the suit would become inappropriate in view of the changed circumstances, the courts may mould the relief in accordance with the changed circumstances for shortening the litigation or to do complete justice.
RETURN OF PLAINT :
Amar Chand Inani v. Union of India (1973) 1 SCC 115 : AIR 1973 SC 313. In that case, the plaintiff a practising advocate, sustained serious injuries in a railway accident while travelling by a train. He instituted a suit for damages in Karnal Court which was then transferred to Panipat Court. The plaint was, however, returned for presentation to proper Court since Panipat Court had no jurisdiction to hear the suit. In pursuance of the said order, the plaint was presented to Ambala Court. At the time of presentation of the plaint to Ambala Court, an objection was raised that the suit was barred by limitation. The question before the Court was as to whether the suit was filed within the period of limitation. This Court held that since the Karnal Court had no jurisdiction to entertain the suit, it was not a proper Court. The submission that the suit instituted in Ambala Court after the plaint was returned from Karnal Court should be deemed to be a continuation of the suit filed in Karnal Court had been negatived.
Considering the provisions of the Limitation Act and Order 7, Rule 10 of the Code, the Court stated:
" Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it Even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat, the suit would not be within time as the filing of the suit in the Kamal Court was beyond the period of limitation.
It was, however, argued by Counsel for the appellant that the suit instituted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial Court. We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the Trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court".
Supreme Court of India
M/S Exl Careers vs Frankfinn Aviation Services Pvt. ... on 5 August, 2020
It is no more resintegra that in a dispute between parties where two or more courts may have jurisdiction, it is always open for them by agreement to confer exclusive jurisdiction by consent on one of the two courts. Clause 16B of the agreement extracted above leaves us in no doubt that the parties clearly indicated that it was only the court at Delhi which shall have exclusive jurisdiction with regard to any dispute concerning the franchise agreement and no other court would have jurisdiction over the same. In that view of the matter, the presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter. This Court considering a similar clause restricting jurisdiction by consent in Swastik Gases (P) Ltd. vs. Indian Oil Corpn. Ltd., (2013) 9 SCC 32, observed as follows: “32. ….It is a fact that whilst providing for jurisdiction clause in the agreement the words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” have not been used but this, in our view, is not decisive and does not make any material differenc