RAKHI Vs. IST ADDL DISTT JUDGE FIROZABAD

JUDGEMENT

(1.) The order dated 22nd March, 1996 passed by 1st Additional Dis trict Judge, Firozabad in Misc. Appeal No. 65 of 1995 affirming the order dated 16th September, 1995 passed by the Civil Judge (Senior Division), Firozabad in Succes sion Case No. 74 of 1990 is under Chal lenge in this Civil Revision. Mr. A. Y. Yadav, learned counsel for the petitioner had assailed the impugned order on the ground that the finding of both the Courts below suffers from perver sity. The conclusions arrived at are based on no material. That apart he further con tends that the Court which have granted the Succession Certificate did not have territorial jurisdiction. The learned Trial Court had overruled the said objection without adverting to the materials on record and the legal proposition. Whereas the learned Lower Appellate Court had referred to the said objection but did not decide the same nor it had adverted to the objection so raised. He further contends that though such objection was not taken in the written statement but yet the ques tion was raised before the trial Court and the trial Court had entertained the said objection and had decided the same. Therefore, it would not hit by the mischief of Section 21 of the Code of Civil Proce dure. Since the trial Court had come to an adverse finding with regard to the ter ritorial jurisdiction and the Lower Appel late Court did not advert to the same, the impugned order should be set aside and the matter should be remanded for fresh decision. He then contends that by reason of Section 379 of the Indian Succession Act, the application for Succession Certifi cate should have accompanied by a deposit of a sum equivalent to the Court fees pay able on the certificate if granted. Accord ing to him, in the present case admittedly, no deposit was made alongwith the ap plication. Therefore, there has been an infraction of Section 379 which is man datory and as such the application could not be maintained. Elaborating his argu ment on the question of territorial juris diction Mr. Ajay Yadav contends that Sec tion 371 prescribes that such application is to be filed before the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death. In the present case, the deceased died at Kanpur and he was residing in Kanpur for last five years. Therefore, Kanpur was his ordinary residence at the time of his death. There fore, the application could not have been maintained at Firozabad. Once a person ordinarily resides at the time of his death at a place then his permanent address in that event the place where he resided ordinarily at the time of his death would be taken to be the place where such application is to be filed. In such circumstances, the permanent address would become im material. According to him, if at the time of his death the deceased had no fixed place of abode in that event, such application is to be filed within the jurisdiction where the property or any part of it may be found. Thus, according to him, if there is no ordi nary place of residence at the time of his death in that event, the application could not have been filed at the place of his permanent address. On these grounds, he claims that the impugned order should be set aside, since both the Courts below did not have jurisdiction in view of Section 371 of the Indian Succession Act. 3. Mr. AS. Diwakar, learned counsel for the respondents on the other hand contends that the petitioner having not taken this objection in the written state ment and no issue having been framed on the question of jurisdiction, mere raising the question at the time of argument and adverted thereto by the trial Court would not take away the case outside the scope and purview of Section 21 of the Code of Civil Procedure. According to him, such objection is to be taken before the issues are settled and there should be issue framed in order to enable the parties to adduce sufficient evidence. Unless such issue is framed inasmuch, it springs surprise to the defendant on a question which could not be met by leading suffi cient evidence. He then contends that the deceased did not ordinarily reside at Kan pur. Admittedly, his office is at Allahabad where he was posted. He had been at Kan pur for the purpose of his treatment. A place, where a person stays for the purpose of getting himself treated, cannot be treated to be a place of his ordinary residence. Admittedly, the deceased was a railway employee whose service was trans ferable and he had been transferred from place to place. In the Office record, he had given his permanent address at Firozabad. Therefore, in such case, he was resident of Firozabad where he ordinarily used to reside, though he had been at Kanpur at the time of his death for the purpose of treatment. Therefore, the same would not affect the jurisdiction of the Court. There fore, the petition filed by her at Firozabad was very much maintainable. With regard to the objection relating to Section 379 Mr. Diwakar contended that the provisions therein are not mandatory. In asmuch as, it was not a Court fee payable on the application. The deposit is made only to meet the expenses of the Court fee to be affixed on the certificate only after it is granted. Therefore, the provision con tained therein cannot be treated man datory. According to him, it is only to secure the payment of stamp duty for issu ing the certificate after the Succession Certificate is granted. This is apparent from the scheme of Section 379 of the said Act. Therefor, according to him, the non-deposit of the amount equivalent to stamp duty payable on the certificate would not vitiate the proceedings. In case he fails to deposit the stamp duty in that event, the certificate may not be issued. Unless a certificate is issued, the grant of certificate would not enable the applicant to receive the estate. He then contends that there is no perversity either in the order of trial Court or in the order of the Lower Appel late Court. On the other hand, the con clusions reached at are based on sufficient materials and thus, this has become con current finding of fact with which this Court is slow to interfere while exercising revisional jurisdiction. He further con tends that even if on the basis of materials a reasonable man would come to a con clusion one or the other way in that event, It cannot be said to be perverse. It is per verse only when a reasonable man cannot come to a conclusion on the basis of material available or that there was no material available. It is not a case where no material was available. He has led me through the judgment of the Courts below and pointed out that there was no perver sity. Even if, this Court is of a different opinion still then it cannot interfere with the said finding which has assumed the characteristic of a concurrent finding un less the Court is of opinion that there is perversity. In the absence of perversity in the present case, there is no scope of inter ference. On these grounds, he prays that the revision be dismissed. 4. I have heard both the counsel at length. 5. So far as the question of perversity is concerned, it is apparent that both the Courts below had come to the same con clusion. The findings have thus assumed the characteristic of a concurrent findings by two Courts. My attention has not been drawn to anything which can show that there was any perversity in the findings. Mr. Ajay Yadav had relied on Annexure-9 to the revisional application which was a Deed of Adoption alleged to have been executed by the deceased and contends that this document was not allowed to be produced by the learned trial Court and therefore, the petitioner could not rely upon the same. He further contends that the negatives of the photographs produced in the trial Court, since been discarded, were also refused to be ad mitted into evidence, Therefore, though there was materials but those were not allowed to be put into records and as such the findings arrived at cannot be sustained. On the record, it does not appear that there was any attempt on the part to the petitioner to produce the negatives of those photographs or to call the photog rapher as a witness in the proceedings. Mr. Yadav has not been able to show that any such application was made before the learned trial Court to allow him to issue notice or summons to the photographer for adducing evidence on his behalf nor he has been able to show any record that any such application was made permitting him to adduce the negative or the documents contained in Annexure-9 in evidence in the trail Court. He has also not contended that any application under Order XVIII, Rule 17-A of the Code of Civil Procedure was ever made. 6. Mr. Yadav has also not been able to show from the Memorandum of Appeal that there was any such ground taken in the Memorandum of Appeal. Mr. Yadav had however, contended that no copy of the Memorandum of Appeal is available to him. At the same to me, he does not confirm that such a ground was taken in the Memorandum of Appeal. At the same time, he was also not contended that in the appeal, any application under Order XLI Rule 27 of the Code of Civil Procedure was filed to bring those documents on record. Had it been a case that these documents were refused to be admitted into evidence by the trial Court in that event, it was open to the petitioner to take such ground in the Memorandum of Appeal. In the absence of Memorandum of Appeal, it is not pos sible to ascertain whether such a ground was taken or not. Allowing that advantage in favour of Mr. Yadav, we may now look into the conduct of the petitioner to bring those non-admitted documents on record by way of additional evidence in the ap peal. Admittedly, Mr. Yadav in his usual fairness, had conceded that no application under Order XLI, Rule 27 was made in the appeal. 7. In case any documents is refused to be admitted into evidence by the trial Court, it is always open to the appellant to take resort to Order XLI Rule 27 of the Code of Civil Procedure to bring those documents. If the Court from whose decree the appeal if preferred has refused to admit evidence which ought to have been admitted or the parties seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or given after the exercise of due diligence could not be produced by him at the time when the decree appealed against, was passed, or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other pur poses, in that event, production of addi tional evidence in the Appellate Court is permitted. 8. In the present case, it is contended that evidence was sought to be adduced but the learned trial Court had refused to admit such evidence. Therefore, it was one of the grounds on which additional evidence was permitted in the Appellate Court, The petitioner did not resort to the provision under Order XLI Rule 27. It had never attempted to bring those materials on record. Unless there is an attempt to bring those materials on record, no ad vantage could be given to the document annexed in the Revisional application which was not part of the record. The Revisional Court is concerned with the records and confined within the same. It cannot look into the materials besides the record unless there would be failure of justice if the Court does not look into it. Bui then that would be a subject to the provision of Order XLI Rule 27. Admit tedly no attempt has also been made even in this Revisional Application to bring those documents on record by means of any application made in this proceeding. 9. Then again, the document con tained in Annexure-9 is a Deed of Adop tion which was also not registered. It was only a notarised document signed by a Notary in the district of Firozabad. The purported Deed of Adoption was executed on llth August, 1989 seeking to adopt one Ashok Kumar son of Munshi Lal who was aged about 28 years. A person aged about 28 years can never be adopted. The Hindu Adoption and Maintenance Act, 1956 prescribes an age limit of a person who can be adopted. Section 10 thereof prescribes the age at 15 years. Such adoption is to follow the prescribed procedure for the adoption, namely, actual giving and taking in adoption as prescribed in Section 11 (vi) of the Act. It can be presumed from a Deed which is supposed to be a registered one in view of Section 16 thereof Therefore, such a document which had sought to adopt a man of 28 years through a notarised docu ment is not a document which can be ad mitted into evidence. However, it could have been admitted into evidence for col lateral purpose. But then there should be material to show that it was sought to be produced or adduced into evidence and the Court had refused to admit. There is nothing to show that any attempt was made to adduce the same into evidence either in ordinary course or by means of any application under Order XVIII, Rule 17-A of the Code or otherwise. Relying on these documents, the petitioner seeks to support her contention with regard to the facts of residence and that Km. Rakhi was the daughter of the deceased, being the bone of contention involved in the proceeding. If from the said document no presumption of adoption could be drawn in view of Section 16 of the 1956 Act, then no presumption about the truth of the fact that Rakhi was the daughter of the deceased could also be drawn. At best it would be a document to show the address of the deceased. Therefore, this Court is of opinion that non-admission of the said documents, in the absence of any attempt on the part of the party would not result into failure of justice. 10. So far as the photographs are concerned, nothing has been shown to this Court that there was any attempt to produce the negatives or that the negatives were filed in the Court or that there was any notice issued or summons applied for to the photographer requiring him to produce the negative or to come and ad duce evidence as a witness to the proceed ing. It is also not asserted by Mr. Ajay Yadav that any such application was ever made in the trial Court or that any attempt was made to bring those evidence on record through the provision provided under Order XLI Rule 27 before the Ap pellate Court. Therefore, the non-con sideration of the alleged material as con tended by Mr. Yadav does not travel to the realm of perversity so far as the judgment of the trial Court as well as that of the Appellate Court is concerned. 11. Both the learned Counsel had taken me through the judgment of the trial court as well as the Lower Appellate Court. Mr. Yadav had tried to point out the perversity in the said judgment. Mr. Diwakar had equally opposed the same by trying to point out that there was no per versity. After having gone through both the orders, I have also found anything which could be said to be perverse with regard to the finding of the facts. No material has been shown on the basis of which this Court can form an opinion that the findings arrived at are perverse. After having gone through the material, it does not appear that those findings are based on no material. It appears that there were sufficient materials on the basis of which the Court had arrived at such a finding. One may form a different opinion than that of the Courts below. But still then it cannot be interfered unless the Court is of opinion that on the basis of materials, no reasonable man could arrive at such a con clusion. If on the basis of the materials, conclusion in one way or the other could be arrived at and it is so arrived in that event, Revisional Court even if is of dif ferent opinion cannot interfere. After having gone through the materials, it ap pears that there were materials on the basis of which one or other conclusions could have been reached. Both the Courts have reached to a concurrent finding of facts. In the absence of perversity as ob served earlier, this Court cannot interfere with the concurrent finding of the Courts below. Thus, I am unable to persuade myself with the contention of Mr. Yadav with regard to the question of perversity. 12. So far as the question relating to Section 379 of the Indian Succession Act as raised by Mr. Yadav is concerned, it appears that the said provision provides as follows: Section 379. Mode of collecting Court-fee on certificates.- (1) Every application for a cer tificate or for the extension of, a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870. in respect of the certificate or extension applied for; (2) If the application is allowed, the sum deposited by the applicant shall be expended. under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid. (3) Any sum received under sub-section (1) and not expended under sub-section (2) shall be refunded to the person who deposited it. 13. Relying on this provision, Mr. Yadav had contended that in the absence of the deposit the Court cannot assume jurisdiction to decide the application for grant of Succession Certificate. But a plain reading of the said provision shows that the purpose and object of the provision was a procedure for collecting Court-fees on the certificate. It was a mode provided to collect the Court-fees payable on the certificate if granted. Sub-section (2) provides that out of deposit made, the court-fees would be paid" In case the cer tificate is not granted and the amount is not spent for the purpose of payment of court-fees in that event, the same would be refundable to the depositor. Sub-section (1) requires deposit of a sum equal to the fee payable under the Court-fees Act in respect of certificate applied for. Such deposit is to accompany the application for certificate. The expression 'shall' used here has to be interpreted on the basis of the purpose and object of the provision as has been incorporated. There is nothing to indicate that an application is required to be stamped with the Court-fees which is payable on the certificate. The application is filed with the Court-fees payable on a miscellaneous application. Therefore, if Court-fee payable on a miscellaneous ap plication is paid, the application is main tainable. It is not dependent for its main tainability on the question of deposit of the amount equal to the fee payable on the certificate. The Court-fees on the certifi cate is payable only when the certificate is issued after the certificate is granted. Till the certificate is granted, no Court-fee be comes payable. It was only a mode of col lecting Court-fees for the certificate or in other words, it was a procedure for secur ing the realisation of the Court-fees pay able on the certificate. In case a less amount is deposited when the certificate is granted additional Court-fees is to be paid. Similarly, if an excess amount is deposited, the balance is refunded or in case the amount so deposited is not at all spent, then the same also becomes refundable to the depositor. Sub-sections (2) and (3) makes the position clear to the extent that it was not meant that the deposit should be mandatory or non-deposit thereof would make the application not maintainable. As such non-deposit will not take away the jurisdiction of the Court to entertain the application. The grant of certificate is sub ject to payment of Court-fees. Such Court-fees can be paid even at the time when the certificate is issued after the application is allowed and certificate is granted. Thus, in my view, provision contained in Section 379 of the Indian Succession Act is not mandatory to the extent that non- com pliance thereof would hit at the root of the application itself and throw it out in limine. 14. In the decision in the case of Mr. Ehatishammunnisa and another v. Mir Hadiali and others, AIR 1935 Allahabad 735, this Court had held that the deposit under Section 379 of Succession Act, of a sum equal to the fee payable on a succes sion certificate cannot be considered to be Court-fee payable on the application for a succession certificate which corresponds to a plaint to a suit. This deposit is made necessary to ensure payment of Court-fee on when the succession certificate is to be issued. As a matter of fact, the Court-fee such certificate is payable under the Court-fees Act, Schedule-1, Article 12 and is paid when the certificate is issued name ly, after the termination of the proceedings under the Succession Act. The test of pauperism laid down by the Explanation to Rule 1, Order XXXIII of the Code of Civil Procedure is, therefore, not that the applicants have no means of paying sum required to be deposited under Section 379 of the Succession Act, but that they have no means of paying the Court-fee on the application for succession certificate, that is, a trifling amount of eight annas. The above decision thus supports the view which I have taken here-in before. 15. The decision in the case of Mt. Fatmabi, AIR 1940 Nagpur 65, it was held on the identical ground that it was not a Court-fee, and the amount deposited under Section 379 was held to be refun dable if not expended. On the analogy of this decision, it can be concluded that had it been a Court-fee, it would not have been refundable. In fact, it was only to secure the payment of the Court-fee after the certifi cate is granted or to see the person apply ing has the means to pay the Court-fees. Therefore, non-deposit thereof cannot make the application non-maintainable. 16. In the case of Sarojbashini Devi v. District Judge 24 Parganas, AIR 1971 Cal cutta 380 (2), it was held that after a succes sion certificate is granted to the mother, a second application by the daughter would require also payment of Court-fees pay able on the succession certificate. This decision also indicates that the Court-fee is payable whenever a succession certifi cate is issued or is extended. Even if, the Court-fee is paid by the mother for succes sion certificate when her daughter asks for the same she has to pay the Court-fee once again. Thus, the deposit has nothing to do with the grant of the succession certificate. If is only to secure the payment of the Court-fee when the certificate is granted and thereafter issued. 17. In the case of Smt. Prakash Wati v. Province of Punjab through Collector of Lahore, AIR 1941 Lahore 399, it was held that an application for succession certifi cate can be allowed subject to furnishing of security. On failure to furnish security, the application was dismissed. In such cir cumstances, the amount deposited with the application under Section 379 (1) and not expended was liable to be refunded under Section 379 (2 ). This decision shows that even after a certificate is granted and for some reasons or other the certificate could not be issued even then the amount deposited with the application is refunded since the same was not adjusted or ex pended for the payment of Court-fees. Thus, this deposit is immaterial for the grant or issue of the succession certificate. It is open to Court to secure the payment of the Court-fees even after the grant of the succession certificate before issuing the certificate. In case, the Court-fees are not paid then the succession certificate may not be issued. 18. In the case of Sankara v. Nainar, ILR 21 Mad. 241, the Madras High Court has also taken the view, that if no order for grant of succession certificate is made, the amount, deposited with the application, becomes refundable to the person deposit ing the amount. Such amount was liable to be appropriated for the payment of Court-fees if the certificate is granted. 19. In the case of Jaskunver v. Kanchanbai and others, AIR 1991mp 362, it was held that the Court must at first, by a summary enquiry ascertain the amount of debts and securities and then pass order for deposit of the amount equivalent to pay the Court fee. 20. It appears that in this case there was no such ascertainment nor there was any direction for depositing the amount equivalent to Court-fee by the Court. In case the Court does not ascertain the amount and does not issue any direction, in that event, can it be said that the proceeding is vitiated ? Or can it be said that the application for grant of succession certificate was not maintainable ? The answer would definitely be in the negative. Section 379 bears the heading as "mode of collecting Court-fees on certificate. " Thus, it is only a modality for collecting the Court-fee. The amount is definitely not Court-fee as has been held in the case Mt. Fatmabi (supra ). If it is not Court-fee, it will not make the application non-main tainable. 21. As observed earlier, a plain read ing of the section does not indicate that non-deposit would be fatal to maintain the proceeding. In the decision in Jaskunver (supra), the Court can ascertain by a sum mary enquiry. If it can so be ascertained by a summary enquiry, then it can very well be ascertained by a full fledged enquiry, as well or in other words it can be ascertained after the order is made and then require the applicant to deposit the amount on the eve of the grant to enable issue of the certificate. Non- compliance of Section 379 of the Succession Act may be an ir regularity but not an illegality before the grant of the certificate. Such irregularity is curable and can be cured on the eve of the grant by directing the applicant to deposit the amount before grant is made and cer-tificateis issued. 22. Thus, it appears that the provision contained in 379 is not man datory to the extent that non-deposit of the amount equal to the Court-fee payable on the succession certificate would non-suit the petitioner or preclude the jurisdiction of the Court to entertain the same. After the certificate is granted, the non- deposit would not render the same inoperative or ineffective. Only if the Court-fees are not paid when the certificate is issued then. only the application would be dismissed and the certificate would not be granted. Therefore, I am unable to persuade myself to agree with Mr. Yadav on this ground. 23. The last point, but not least, as argued by Mr. Yadav, in relation to the territorial jurisdiction of the Court may be taken up. Section 371 requires filing of application before the learned District Judge within whose jurisdiction the deceased ordinarily resided at the time of this death. If at the time of the death, the deceased had no fixed place of abode in that event, such application is to be filed before the learned District Judge within whose jurisdiction the property or part thereof would be found. 24. In the present case, the applica tion was filed before the Civil Judge (Senior Division), Firozabad who was a delegate under Section 388 of Indian Suc cession Act which fact is not disputed and accordingly, the appeal was preferred before the learned District Judge, Firozabad in terms of provision of sub- sec tion (2) of Section 388. The order passed by the District Judge on an appeal is sub ject to revision by the High Court by reason of sub-section (3) of Section 388 thereof. 25. Now it is to be seen whether the Court at Firozabad had territorial jurisdic tion to entertain the application. Mr. Diwakar however, had insisted that before finding out as to whether the Court's ter ritorial jurisdiction, the question with regard to the Section 21 of the Code of Civil Procedure has to be examined. Ac cording to him, the objection having not been taken in the written statement and no such objection having been raised before the settlement of issues and no issue having been framed, even if the objection is raised at the time of hearing, to which the learned trial Court had adverted, the same cannot be an objection under Section 21 of the Code of Civil Procedure or in other words be hit by the mischief of Section 21 of the Code of Civil Procedure. 26. In the present case, it is admitted that such objection was not taken in the written statement. It is also admitted that no issue was framed. It is also admitted that this objection was raised at the time of argument. It is further admitted that this objection was dealt with by the learned trial Court. Admittedly, if no issue is framed in that event, it had sprung surprise on the respondents when raised at the bar at the time of argument. In as much, the applicant had no opportunity to take ob jection to it. It could be argued by Mr. Diwakar that the applicant did not have any opportunity to adduce sufficient evidence to defend such objection. The Court was never called upon to decide the issue. Unless an issue is framed, if cannot be said that it was in issue. Then again, the absence of objection does not make the decision by the Court wholly without juris diction. It is an irregularity and not an illegality affecting the merit or the validity of the decree. One may acquise to the jurisdiction. Therefore, in the present case, the objection raised and adverted to by the Court would not cure the mischief of Section 21 of the Code. On the other hand, by reason of Section 21 of the Code such objection would not hit at the root of the decree that have been passed and could not be said to be without jurisdiction. There fore, the omission of the Appellate Court to advert to the question is not fatal. It was neither an objection properly raised in terms of Section 21 of the Code of Civil Procedure nor was in issue. Therefore, the Courts were not called upon to decide the same. 27. Mr. Ajay Yadav had relied no the decision in the case of Krishna Pal Singh v. Deputy Director of Consolidation, 1999 A. C. J. 371; 1999 (1) JCLR 1069 (All), in support of his contention with regard to the question of jurisdiction. Relying on this decision Mr. Yadav sought to contend that since the Court could not have juris diction in view of Section 371 of the Suc cession Act, therefore, whether any objec tion raised or not, the same would operate as a nullity. The said contention in my view seems to be unfounded, it is not a question of estoppel against a statute. On the other hand, it is a question of jurisdiction which to be taken at the Court of first instance before the settlement of the issues and the objection to the jurisdiction is not as such that it would ipso facto make the decree a nullity. It is only an objection which is to be taken at the initial stage. This decision as was held in paragraph 14 relied on by Mr. Yadav cannot be attracted in the facts and circumstances of the present case. 28. Mr. Ajay Yadav had relied on in the case of State of Kerala v. MM. Mathew and another, AIR 1978 SC 1571, to con tend that in present case, the evidence which ought to have been considered has not been considered and the witnesses have been disbelieved who ought not to have been disbelieved. Such decision propounded that the evidence of the In vestigating Officer cannot be branded as highly interested on the ground that the Investigating Officer was bent upon secur ing the conviction of the accused. Thus, the said decision has no manner of application in the present case where the evidence of any of the witnesses have not been dis carded on the ground it was on the basis that he was an interested witness to the extent an Investigating Officer is inter ested. In the present case, the evidence of Smt. Charan Devi has been disbelieved on the ground that she was interested. In fact an Investigating Officer is an independent officer. Whereas Charan Devi was a party interested who was purporting to act as guardian of Km. Rakhi to secure the object of the grant of Succession Certificate to the applicant. Therefore, she was really an interested witness. Be that as it may, a perusal of the record shows that her evidence has not been discarded only on the ground that she was an interested wit ness. On the other hand, both the Courts below had examined the evidence of Charan Devi and had found that there were discrepancies and difference in the statement made by her. There were the grounds on which the Court had come to a conclusion that the said witness was an interested witness who wanted somehow to secure the success of her object. Thus, this decision does not help Mr. Yadav. 29. The expression 'objection as to the place of suing' is used, in Section 21 of the Code of Civil Procedure, in a generic sense as has been held in the case of Dina Nath Dutt v. Maha Vir Gupta, AIR 1958 Punjab 289, Section 21 of the Code is an exception to the general rule that objec tion of jurisdiction can be taken at any stage as has been held in the case of Nidhi v. Mazhar, ILR 7 Alld. 230, and in the case of Ramani alias Venkataramani and others v. M. Narayanaswami Aiyar and others, 87 Indian Cases 341. Objection to the ter ritorial jurisdiction must be taken in the original Court at the earliest opportunity and before settlement of issues. The ex pression 'before settlement of the issues' indicates that an issue as to the objection in relation to territorial jurisdiction is to be framed, for which reason, the objection is to be taken before the issues are settled. If grounds are shown, one can apply for framing of additional issues, even after the settlement of the issues. But there must be an issue framed on the question. In case issues are framed and such objection is wrongly disallowed, the Appellate Court or Revisional Court would not entertain the objection unless there has been a con sequent failure of justice. It was so held in the case of Murammat Lagan Barat Kuar v. Khakhan Singh, 22 CWN 547, Lacha Ram alias Lachman v. Virji and another, 62 1c 399; 19alj305, Gur Dayal v. Sukhnandan Lal, AIR 1929 Alld 236; and Abdul v. Fahimunisa, AIR 1969 Mysore 226. Such objection to jurisdiction can be raised even before filing written statement as was held in the case of Sasa Musa Sugar Works Pvt Ltd. v. Chunilal Chororia, AIR 1975 Gauhati 34. In the case of Shah Harichand Ratan Chand v. Virbala and others, AIR 1975 Guj. 150, the principle of Section 21 of the Code was also applied in a proceeding under Section 25 (1) of Guardians and Wards Act, 1890 passing an order for custody of minor on merit. The Apex Court in the case of Kiran v. Chaman AIR 1954 SC 340, has held that policy of legislation of Section 21 of the Code is the same as in Section 99 of the Code and Section 11 of the Suits Valuation Act, that is to say, to treat the objections to jurisdic tion, both territorial and pecuniary as technical and not open to consideration by an Appellate Court unless there has been prejudice on merits. 30. Section 99 of the Code provides that no decree shall be reversed or substan tially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties, or cause of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. While Section 21-A of the Code provides no suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigation under the same title on any ground based on an ob jection as to the place of suing. 31. Thus, a combined reading of Sec tion 21-A and Section 99 of the Code read with Section 11 of the Suit Valuation Act would show that jurisdictional defect is mere an irregularity unless it affects the merits of the case. In the case of George v. Thekkekkara Vareed, AIR 1979 Kerala 1 (FB), it was held that jurisdictional defect or a procedural illegality or irregularity is open to correction by an Appellate Court only where it has occasioned a failure of justice. In the case of Katamberi Chuzhlai Bhagwati Amma's owner, and Manager Samanthan Karakkattiathil Kamaran Nambiar and another v. Valia Ramunni and others, AIR 1938 Mad. 257, and in the case of Appat Krishna Poduval v. Lakshmi Nathiar and others, AIR 1950 Mad. 751, it was held that want of territorial or pecuniary jurisdiction is an irregularity and does not make a decree nullity unless there is the further element of consequent failure of justice. In the case of Raja Gajendra Shah v. Kuar Sundar Singh and another, AIR 1934 Alld 549, this Court had held that even though the objection as to place of suing has been raised at the ear liest opportunity and wrongly disallowed, judgment will not be disturbed unless there has been a consequent failure of justice. The objection to territorial juris diction cannot be interfered with by the Appeal Court in the absence of evidence of failure of justice. It was so held by this Court in the case of Manager, Hardware and Tools Ltd. v. Sam Smelting Pvt. Ltd, AIR 1983 Alld 329, and by the Apex Court in the case of Koopilan Uneen 's son Kuntalan Kutty and others v. Koopilan Uneen's daughter Pathummaand others, AIR 198l SC 1683. 32. In the decision in the case of R. S. D. V Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. , AIR 1993 SC 2094, the Apex Court had held that in order to attract the mischief of Section 21 of the Code of Civil Procedure, three conditions are to be fulfilled, that the objection was taken in the Court of first instance and that it should ' j taken at the earliest possible opportunity and in all case before the is sues are settled and that there was conse quent failure of justice. Unless all condi tions are fulfilled, such objection cannot be taken. In paragraph 8 of the said judg ment, the Apex Court had held that all these three conditions are to be fulfilled. 33. A plain reading of Section 21, sub-section (1) shows that objection with regard to the place of suing is to be taken in the Court of first instance at the earliest possible opportunity and in all cases before the issues were settled. Unless there has been a consequent failure of justice, the Appellate or Revisional Court would not allow such objection to be taken. In the present case admittedly, the objection was not taken in the written statement. Neither it was taken before the settlement of the issue nor any issue had been framed. Mere raising of such issue at the Bar and adver tence thereto by the trial Court does not qualify it as an objection to the place of suing within the meaning of sub-section (1) of Section 21 of the Code of Civil Procedure. Thus, the first two conditions have not been satisfied. Therefore, even if the trial Court had referred to it and adverted thereto still then it is immaterial and the omission by the Appel late Court would not affect the case at all. So far as the consequent failure of justice is con cerned, admittedly, the application was made at Firozabad and that the objec tors/petitioners were also residents of Firozabad and had all the opportunity to contest the proceedings at Firozabad and in fact, they had contested the same. By reason thereof, there was no failure of justice in order to satisfy the third condition. 34. That apart such application is to be filed within the jurisdiction of the District Judge where the deceased originally resided. In the present case, both the Courts below have found that the death took place at Kanpur where he was on account of his treatment. Admittedly, the deceased was posted at Allahabad, He was a railway employee and used to be trans ferred from one place to other. Thus, Kanpur where the deceased had been staying for the purpose of his treatment cannot be said to be his place of ordinary residence. He had been in Kanpur for his treatment which is for a particular purpose which is not an ordinary purpose. An ordinary resi dent means that he had resided voluntarily and ordinarily and not for any particular purpose. Admittedly, the address of the deceased was at Firozabad. This was shown in the records of his service. The document contained in Annexure-9 to this petition also mentions the address of the deceased as at Firozabad. Thus, from the document, on which the petitioner had intended to rely, disclosed that the deceased was an ordinary resident of Firozabad which was his permanent or fixed place of abode. Therefore, his stay at Kanpur at the time of his death for the purpose of his treatment cannot be treated to be his ordinary residence or that the deceased used to ordinarily reside at Kan pur at the time of his death within the meaning of Section 371 of the Succession Act. On that ground it cannot be con tended that the Courts at Firozabad did not have territorial jurisdiction. Though the deceased was at Kanpur for the pur pose of his treatment but his residence was at Firozabad, which is his permanent or fixed place of abode, is to be taken as the place of his ordinary residence. It is claimed by the applicant that she had resided with him at Firozabad while it is claimed by the petitioner that she had resided with him at Firozabad, though on account of his employment, he used to be posted at diverse places. Bys reason of entertainment of the application by the Courts at Firozabad, it cannot be said that it had inflicted any injustice on the petitioner. 35. In the case of Rameshwari Devi v. Raj Bali Shah and another, AIR 1988 All 68, it was held that in ordinary circumstan ces the jurisdiction falls within which the deceased ordinarily resided at the time of his death. If at that time if he had no fixed place of abode then the jurisdiction would fall within which the property is situated. The second branch would not be attracted until and unless the first branch is ex hausted. The second branch is an alterna tive provision which is attracted only in those cases in which the deceased at the time of his death had no fixed place of residence. The permanent residence is necessarily a fixed place of abode. The permanent residence mentioned by a person, on a transferable job, is the fixed place of abode. However, by reason of employment one is transferred from one place to another or he is staying at a different place at the time of his death in that event, it cannot be said that he ordinarily resided at the place where he was staying for his treatment nor it could be said that he was ordinarily residing at the places where he was serving by reason of his transferable service. 36. Then again, the question is not a question of illegality but a question of irregularity. It was with regard to the ob jection as to jurisdiction. It was not lack of jurisdiction. The absence of territorial jurisdiction, ipso facto does not render any decree or proceeding a nullity. Therefore, on this point also I am unable to agree with the contention of Mr. Yadav. 37. For all these reasons, the Revisional Application fails and is accord ingly, dismissed. However, there will be no order as to costs. Revision dismissed. .