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All you should know about  the place for the institution of a suit

May 23, 2021
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All you should know about the place for institution of a suit

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This article is written by Priyesh Singh, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com.

Introduction

The foremost thing which is to be determined during the filing of a suit is the place of suing. This decides the place for trial, and it has nothing to do with the competency of the court. The jurisdiction of a court to entertain, adjudicate and decide a suit is restricted, based on the circumstances of the suit. The legal maxim “ubi jus ibi remedium” which means that where there is a right there is a remedy, a very common principle in English law is accepted by our Indian legal system as well. The violation of rights requires a person to approach the appropriate forum for compensation. Then the role of the judicial forum matters more because this is the only forum having the jurisdiction to deal with the matter and adjudicate as well. This is an important point since every court has its own jurisdiction. The more important thing before going ahead in this, we need to understand the meaning of jurisdiction, where `jur’ stands for law and ‘diction’ means saying. And if we go through the Code’s definition it is put forth as “the limit of a judicial authority or the extent to which a court of law can exercise its authority over suits.” And for the first time, this term was explained in the case of  Hriday Nath Roy v. Ram Chandra in 1921.    

The thing which is to be determined during the filing of a suit is the place for the institution of the suit. It decides the place for trial and it has nothing to do with the competency of the courts. Sections 15 to 20 of the Civil Procedure Code throws light upon the appropriate forum for instituting suits in India. The purpose behind this is to briefly explain the concept of the place of filing a case in every situation and what are the things to be kept in mind while suing someone. The concept of the jurisdiction of suing is very important because after all, it safeguards the rights of the parties. 

How to decide upon which court to approach?

So starting off with the concept of court in India, it has come from the British Era, where the first Governor-General of India, Warren Hastings in 1772 introduced the court’s civil matters and criminal matters. After that, Lord Cornwallis came up with three phases of the judicial plan to improve the judiciary in 1787, 1790, 1793 respectively. Jurisdiction of civil courts is in India is mainly decided on the basis of the:

  1. Pecuniary value
  2. Territorial limit

Section 9 of the Civil Procedure Code, 1908 puts forth the provision for courts to try all the suits unless barred. The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excluding the suits of which their cognizance is either expressly or impliedly barred. 

Explanation 1.- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decisions of questions as to religious rites or ceremonies.

Explanation 2.- For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in explanation 1 or whether or not such office is attached to a particular place.

Pecuniary jurisdiction

Pecuniary jurisdiction is related to money when whether a court can try cases and suits of the monetary value of the case or suit is in question. Pecuniary jurisdiction as per Section 15 talks of every suit shall be instituted in the court of lowest grade competent to try it. The word competent denotes that the court must have the power to hear the case with regards to pecuniary jurisdiction. The court of lowest grade who has jurisdiction with regards to pecuniary value shall deal with the case at the first example. Therefore, the question stands out to be: who decides the value of the case? Generally, the plaintiff makes an evaluation of the suit for the purpose of deciding the pecuniary jurisdiction of the court except it prima facie appears to the court that the evaluation wasn’t done correctly. Then the courts find that the evaluation was correct or not. Then the court will allow the party to approach the court.

Let’s understand with an example: If the District Court has a pecuniary jurisdiction of Rs.3,00,000/- to Rs10,00,000/-, and the suit filed by the plaintiff for recovery of amount is filed on the valuation of suit done by the plaintiff. The valuation was Rs.5,00,000/-, in this case, the court is not deprived of its jurisdiction to pass a decree for that amount. The plaintiff needs to prove that the valuation is correct; if it is not, then the burden of proof is on the plaintiff to prove that.

Territorial jurisdiction 

Territorial jurisdiction means that the courts have power over the person and its actions, and bounds in a particular territory. In the Civil Procedure Code, territorial jurisdiction is explained under Sections 16 to 20 in the following ways:

  1. Suits related to Immovable property (Sections 16 to 18)
  2. Suits related to Movable property (Section 19)
  3. Other suits (Section 20)

Suits related to immovable property

Subject to the limitations prescribed by law, suits,– 

  1. For the recovery of immovable property with or without rent or profits,
  2. For the partition of immovable property,
  3. For enclosure, sale, or redemption in the case of a mortgage of  or charge upon immovable property, 
  4. For the determination of any other right  to or interest in immovable property,
  5. For compensation for wrong to immovable property,
  6. For the recovery of the movable property actually under distraint or attachment,

Shall be instituted in the court within the local limits of whose jurisdiction the property is situated. Also one has to keep in mind that by ‘property’ it means those properties that are situated in India.

 Suits related to movable property  

Others suits

Objection to jurisdiction

This is explained in Section 21 of Civil Procedure Code,1908 states that if the objection was raised in cases where issues are settled unless the objection was taken in the court of the first instance at the earliest possible opportunity, or competence of court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional courts. 

Transfer of the suits

The transfer of the suits is explained from Sections 22 to 25 of the Civil Procedure Code, 1908.

  1. Section 22. –  Power to transfer suits which may be instituted in more than one court.– any defendant, after notice to the other parties, may, at the earliest possible opportunity in cases where issues are settled or before such settlement, apply to have the suit transferred to another court. When a suit may be instituted in more than one court. To the court where such an application is made, after considering the objection made by any of the parties, the court shall decide in which court has jurisdiction to proceed with the suit.
  2. Section 23. – To the court where the application lies. – There are several courts that have jurisdiction over the application made under Section 22. These courts are subordinate courts to the same appellate court, The application is made to an appellate court. Somewhere these subordinate courts have different appellate courts but the same High court, the application is made to the High court. Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the locals limit. 
  3. Section 24.– general power of transfer and withdrawal: The High Court or the District Court at any stage:

The court which tries to dispose of a proceeding or suit, in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. And under this section, courts of additional and assistant judges shall be deemed to be subordinate to the district court. A suit of court of the small cause which transferred or withdrawn to another court, be deemed to be a court of small cause. A suit or proceeding may be transferred under this section from a court that has no jurisdiction to try it.

  1. Section 25 – Power of the Supreme Court to transfer suits, etc. – After hearing on the application, the Supreme Court, if satisfied that an order under this section is expedient for the ends of justice, directs that any suit or appeal or other proceeding be transferred to the high court or district court of another state.

Conclusion

The concept of the place of jurisdiction is very important. It helps to determine the jurisdiction of each court, and it helps both parties to file a suit and it also safeguards the right of a party if the institution of suit is not in the jurisdiction of the court.

References


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