N K BHATIA Vs. J P SINGH

JUDGEMENT

(1.) This application has been moved under Order 14, rule 5 read with Section 151 of Code of Civil Procedure ('Code' for short) on behalf of the defendant alleging that in para 28 of the written statement a plea bad been specifically taken that this Court had no jurisdiction because the suit was for specific performance of the Contract with respect to the land situated in the State of Uttar Pradesh. Therefore, it has been prayed that additional issue to that effect may be framed.

(2.) Plaintiff has contested thispplication by filing a reply. I have heard arguments advanced by learned counsel for the parties. Learned counsel for the plaintiff submitted that since such an issue was not pressed at the time of framing of the issues, the defendant noe could not come forward to say that the framing of such an issue at the. 'time of settlement of issues was not pressed under some misconception or erroneous legal advice. He has cited three authorities, namely, Hira Lal Patni v. Sri Kali Nath, ' AIR 1962 SC 199, Behrein Petroleum Co. Ltd. v. P.J. Puppu & Anr, AIR 1966 SC 634 and Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 938 =4(1968) DLT (SC) 186 Learned counsel for the defendant has cited the case of Kiran Singh & Anr. v. Chaman Paswan & Ors. AIR 1954 SC 340. I have carefully perused these authorities. In my opinion the authorities cited on behalf of the plaintiff are not applicable to this case. In the first authority the plaintiff obtained leave of the Bombay High Court on the original side and instituted a suit for the recovery of amount due to him. The defendant agreed to refer the matter to arbitraiion through Court, In these circumstances, it was held that defendant would be deemed to have waived his objection to the territorial jurisdiction of the Court. From the perusal of this authority, it is therefore, clear that when once the defendant concedes jurisdiction to a particular place and agrees to refer the disputes to arbitration the objection regarding jurisdiction would be deemed to have been waived by him. In the present case the objection has been taken at the earliest stage when the parties have not even led their evidence on the issues which were framed earlier. This authority, therefore, is not applicable. In the second authority, it was held.

(3.) In the third authority the principle laid down is that a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed, had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. This authority also obviously is not applicable. It may be noted here that previously defendant was being represented by another counsel and now he has engaged a different counsel. On going through the pleadings the new counsel found that there was a plea taken in the written statement about the jurisdiction of this Court because the property which is the subject matter of the alleged agreement between the parties is situated in the State of Uttar Pradesh. The non-pressing of an issue by a party's counsel, otherwise arising from the pleadings, should not be calculated to amount to a waiver of the plea by the party himself because it is the duty of the Court also to frame correct issues arising from the pleadings. We must not forget in the present case that the parties have not yet led evidence on various issues. The objection about lack of territorial jurisdiction, which is otherwise taken in the written statement at the earliest stage, is now being merely repeated by means of this application under Order 14 Rule 5 of the Code which otherwise mandates that before passing any decree, the Court shall either amend or frame additional issues as may be necessary for determining the matters in controversy between the parties. It is not even an application in the midst of the evidence seeking amendment of the written statement whereby the defendant wants to introduce the plea of lack of jurisdiction of this Court by amendment of the written statement. The plea is already there. It is only in those cases where trial has taken place, and the objection regarding lack of territorial jurisdiction is taken for the first time before an appellate or a revisional court, that it may be possible to say that the case had been tried on merits and judgment rendered, so it was not liable to be reversed purely on the technical ground of lack of jurisdiction. This principle will not apply when such an objection is taken before the trial court itself. It was clarified in the case of Kiran Singh and others (supra) in para 7 in the following words.