Fakrudeen Bava v. Mohammed Yousuf

OP © 1953 OF 2022 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 ``` ``` OP(C) NO. 1953 OF 2022 ``` ``` AGAINST THE ORDER IN I.A.NO. 9597/2019 OF PRINCIPAL MUNSIFF ``` # **`COURT, THIRUVANANTHAPURAM`** ## **`PETITIONER/DEFENDANT:`** ``` FAKRUDEEN BAVA AGED 56 YEARS VALIYAKADAPUTHEN VEEDU, KADAKKALMURI, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, PIN - 691536 BY ADV S.SACHITHANANDA PAI ``` ## **`RESPONDENT/PLAINTIFF:`** ``` MOHAMMED YOUSUF AGED 67 YEARS VALIYAKADAPUTHEN VEEDU, KADAKKALMURI, KADAKKAL VILLAGE, NOW RESIDING AT, FLAT NO.4C, HEERA CENTRAL APARTMENT, T C NO.3/1998/24, PATTOM, PALACE P O, THIRUVANNATHAPURAM, REP BY HIS POWER OF ATTORNEY HOLDER, SHINE YOUSUF, VALIYAKADAPUTHEN VEEDU, KADAKKAL MURI, KADAKKAL, PIN – 691536. ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP © 1953 OF 2022 2 ## **JUDGMENT** Aggrieved by Ext P. 5 order passed in .I A No.9597/2019 in O S No. . .610/2019 of the Court of the Principal Munsiff, Thiruvananthapuram, the defendant in the suit has filed the . . original petition The respondent is the plaintiff in the suit 2. The facts in brief, relevant for the determination of the original petition, are: the respondent has filed Ext P. 1 plaint as against the petitioner for a decree for recovery of money. The petitioner has filed Ext P. 2 written statement, inter alia, contending that the court below lacks territorial . . No Ext P. to jurisdiction to try the suit and filed I A .9597/2019 ( 3) decide the question of jurisdiction as a preliminary issue. The respondent objected to Ext P. 3 application through Ext P. 4 counter statement. The court below, by the impugned Ext P. 5 order, dismissed Ext P. 3. Ext P. 5 is erroneous and wrong. . Hence the original petition OP © 1953 OF 2022 3 3. Heard; Sri Sachithananda. Pai, the learned counsel appearing for the petitioner. In view of the limited relief that I propose to pass, I dispense with notice to the respondent. 4. The definite case of the petitioner in Ext P. 2 written statement and Ext P. 3 application is that, the court below . does not have the territorial jurisdiction to entertain the suit According to the petitioner, the entire transaction took place outside the jurisdiction of the Court. Nonetheless, the court below has held that as cause of action is a bundle of facts, the question of territorial jurisdiction can only be decided after evidence. 5. Order XIV Rule 2 of the Code of Civil Procedure,1908, reads as follows: “ - **Court to pronounce judgment on all issues** (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. OP © 1953 OF 2022 4 (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try - that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force., and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue ”. 6. A reading of the above extracted provision makes it explicitly clear that, if an issue of law regarding the jurisdiction of the court or a bar to the suit is raised, the said issue has to be tried first before going into other issues. - 7. The above legal position is no longer res integra, in view of a catena of decisions on the point (read **Reghunathan Nair** . **v Bobby** . **A** . **Thomas and others** [2021 (6) KHC 804], **Prasad R** . . **v Travancore Devaswom Board** OP © 1953 OF 2022 5 **and Another** [ 2017 (3) KHC 760], and **Gopinathan** . **K K** . ( **Dr** .) **v** . . **K Kuttan Nair** [2009 (3) KHC 720]). 8. The above provision stands attracted, when a person alleges that the Court has no pecuniary, inherent or territorial jurisdiction to try a suit, that issue has to be considered first, because it goes to the root of the matter. In other words, if the Court tries all issues, including the issue of jurisdiction and ultimately finds it has no jurisdiction, it is - power less to render its decision on other issues, and if renders the judgment and decree without having jurisdiction, the same is non-est and void in the eyes of law. 9. In the case at hand, the petitioner has specifically raised an objection regarding the lack of territorial jurisdiction of the court below to entertain the suit. The court below was right in holding that the said issue cannot be answered on the basis of pleadings alone, but is a matter of evidence, but the said issue will have to be considered first. OP © 1953 OF 2022 6 The court below was also right in observing that cause of action is a bundle of facts. [ **read Dr** . **Joy P** . **Chungath** . **v M** / **s** . **Lawkin Ltd** KHC 565 (2012 (1) )] 10. In the above conspectus , I am of the firm view that the court below is to be directed to decide the question of territorial jurisdiction first, before venturing into the other issues. If the court below finds that it has territorial jurisdiction, then it can very well proceed and decide the other issues as contemplated under Order XIV read with Rule 110 of the Civil Rules of Practice, Kerala, if not has to order the . return of the plaint In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of : the original petition as follows ( )i The court below is directed to consider the issue of territorial jurisdiction first, before deciding on other issues in OP © 1953 OF 2022 7 the suit, in accordance with law, untrammelled by any observation made in Ext P. 5 order or this judgment. (ii) If the court below holds it has the territorial jurisdiction to entertain the suit, then it shall proceed and decide all the other issues in the suit as provided under Order XIV of the Code and Rule 110 of the Civil Rules of Practice, in accordance with law. Sd/- ma/14.10.2022 . **C S** . **DIAS JUDGE** OP © 1953 OF 2022 8 ## **`APPENDIX OF OP(C) 1953/2022`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF THE PLAINT IN O S 610/2019 OF THE MUNSIFF'S COURT , THIRUVANANTHAPURAM Exhibit P2COPY OF THE WRITTEN STATEMENT IN O S 610/2019 OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM Exhibit P3COPY OF THE PETITION IN I A 9597/2019 IN O S 610/2019 OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM Exhibit P4COPY OF THE OBJECTION IN I A 9597/2019 IN O S 610/2019 OF THE MUNSIFF'S COURT, THIRUVANANTHAPURAM. ``` ``` Exhibit P5COPY OF THE ORDER DATED 12.07.2022 IN I A 9597/2019 IN O S 610/2019 OF THE MUNISIFF'S COURT, THIRUVANANTHAPURAM. ```