Case Note & Summary
The appellant, Niloufer Soli Lam, was the original defendant in a suit filed by the respondent, Zarir Pesi Bharucha, seeking possession and mesne profits in respect of a flat. The respondent claimed to be the owner of the flat and alleged that the appellant was a licensee who had refused to vacate. The appellant filed a written statement denying the respondent's title and also filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint on the ground that the suit was not maintainable for want of jurisdiction. The trial court rejected the application, holding that the appellant had waived the right to raise the jurisdictional objection by filing a written statement without reserving the right to do so and by participating in the proceedings. The appellant appealed against this order. The High Court considered the legal issue of whether a defendant waives the right to raise a jurisdictional objection by filing a written statement and participating in the proceedings. The court held that a jurisdictional objection can be raised at any stage and is not waived merely by filing a written statement or participating in the proceedings. The court observed that waiver requires express or implied consent to the jurisdiction of the court, which was not present in this case. The court also noted that Order VIII Rule 1 CPC does not bar a defendant from raising a jurisdictional objection after filing a written statement. The court set aside the trial court's order and directed the trial court to decide the jurisdictional issue as a preliminary issue under Section 9A of the CPC. The court clarified that it had not expressed any opinion on the merits of the jurisdictional objection and that the trial court should decide it afresh.
Headnote
A) Civil Procedure - Jurisdiction - Preliminary Issue - Section 9A, Order VII Rule 11(d), Order VIII Rule 1, Code of Civil Procedure, 1908 - The defendant filed an application for rejection of plaint on the ground that the suit was not maintainable for want of jurisdiction. The trial court rejected the application holding that the defendant had waived the objection by filing a written statement and participating in the proceedings. The High Court held that a jurisdictional objection can be raised at any stage and is not waived merely by filing a written statement or participating in the proceedings. The court directed the trial court to decide the jurisdictional issue as a preliminary issue under Section 9A of the CPC. (Paras 10-25) B) Civil Procedure - Waiver of Jurisdictional Objection - Section 9A, Order VIII Rule 1, Code of Civil Procedure, 1908 - The trial court held that the defendant had waived the right to raise a jurisdictional objection by filing a written statement without reserving the right to do so. The High Court held that waiver of a jurisdictional objection requires express or implied consent to the jurisdiction of the court, and mere filing of a written statement or participation in proceedings does not constitute waiver. The court set aside the trial court's order and remanded the matter for fresh consideration. (Paras 15-30)
Issue of Consideration
Whether the trial court was justified in rejecting the defendant's application under Order VII Rule 11(d) of the CPC for rejection of plaint on the ground of lack of jurisdiction, and whether the defendant had waived the right to raise the jurisdictional objection by filing a written statement and participating in the proceedings.
Final Decision
The High Court allowed the appeal, set aside the trial court's order, and directed the trial court to decide the jurisdictional issue as a preliminary issue under Section 9A of the CPC. The court clarified that it had not expressed any opinion on the merits of the jurisdictional objection.
Law Points
- Jurisdictional objection can be raised at any stage
- Order VIII Rule 1 CPC does not bar raising jurisdictional objection after written statement
- Section 9A CPC requires preliminary determination of jurisdiction
- Waiver of objection requires express or implied consent
- Defendant's participation in proceedings does not constitute waiver of jurisdiction
