Hon'ble C.K. Prasad, CJ Hon'ble Y.K. Sangal, J All these appeals arise out of the common judgment dated 16.7.2009 passed by a learned Single Judge in Review Petition No.373 of 2005 and Writ Petition No.5208 of 2005.
In view of the order, which we propose to pass in these appeals, we do not consider it expedient to give in detail the facts of the case. Suffice it to say that writ petitioner-respondent no.1 herein, filed the writ application, inter alia, praying for issuance of a writ in the nature of mandamus commanding the Chhatrapati Sahuji Maharaj University, Kanpur (hereinafter referred to as 'the University') to declare the result of the writ petitioner's B.Ed. Examination of 2004 and thereafter to issue fresh mark- sheet to her. The writ application came up for consideration before the learned Single Judge on 21.11.2005, and he dismissed the writ application with cost. While dismissing the writ application, he observed as follows:-
"Accordingly, the reliefs claimed by the petitioner in the instant writ petition are similar in nature to that claimed by the petitioner in earlier writ petition, which was numbered as Civil Misc. Writ Petition No.40139 of 2004 and under Chapter XXII Rule 7 of the Allahabad High Court Rules, it has been abundant clear that where an application has been rejected, it shall not be open for the applicant to make a second application on the same facts and against same cause of action and as such writ petition is not maintainable."
Thereafter the writ petitioner preferred a Review Petition No.373 of 2005 and by a common judgment and order, the review petition as also the writ application have been allowed and direction has been given to the University to issue mark-sheet of B.Ed. Examination-2004 to the writ petitioner, within a stipulated period.
Mr. S.P. Singh, appears on behalf of the appellant in Special Appeal No.6 of 2010, whereas the appellants of Special Appeal No.908 of 2009 and Special Appeal No.946 of 2009 are represented by Mr. Manish Kumar, Advocate. Respondent no.1 is represented by Mr. Umesh Chandra, learned Senior Advocate. Mr. Anurag Verma, appears on behalf of respondent no.2 in Special Appeal No.6 of 2010.
Learned counsel representing the appellants submits that no cause of action or part of cause of action has arisen within the territorial limit of Lucknow Bench of this Court and, as such the order rendered by the learned Single Judge on the writ application as also on the review petition is fit to be set aside on this ground alone. Reliance has been placed on a decision of the Supreme Court in Hiralal Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (Dead) by LRS., reported in (1993) 2 SCC 458 and our attention has been drawn to paragraph 8 of the judgment, which reads as follows:-
"8. It may be noticed that we are dealing with the question of nullity of a decree because the executing court is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears, there is a lot of confusion as to what is meant by "decree being null and void". In the context which we are dealing, a decree is said to be a nullity if it is passed by a court having no inherent jurisdiction. Merely because a court erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree."
Reliance has also been placed on a decision of the Supreme Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others, reported in (1994) 4 SCC 711 and our attention has been drawn to the following passage from paragraph 12 of the judgment. The same reads as follows:-
"12....It is indeed a great pity that one of the premier High Courts of the country should appear to have developed a tendency to assume jurisdiction on the sole ground that the petitioner before it resides in or carries on business from a registered office in the State of West Bengal. We feel all the more pained that notwithstanding the observations of this Court made time and again, some of the learned Judges continue to betray that tendency.
Only recently while disposing of appeals arising out of SLP Nos.10065-66 of 1993, Aligarh Muslim University v. Vinay Engineering Enterprises (P) Ltd., this Court observed:
"We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction."
In that case, the contract in question was executed at Aligarh, the construction work was to be carried out at Aligarh, the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction, the arbitrator was appointed at Aligarh and was to function at Aligarh and yet merely because the respondent was a Calcutta-based firm, it instituted proceedings in the Calcutta High Court and the High Court exercised jurisdiction where it had none whatsoever. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation."
Mr. Umesh Chandra, learned Senior Advocate, appearing on behalf of respondent no.1, does not dispute that no cause of action or for that matter, part of cause of action has arisen within the territorial limit of Lucknow Bench of this Court, but he submits that the appellants having waived the said question of jurisdiction, cannot be allowed to turn their heads and raise the question of jurisdiction. In support of the submission, he has relied upon a large number of authorities of the Supreme Court, i.e., in the cases of Seth Hiralal Patni Vs. Sri Kali Nath, reported in (1962) 2 SCR 747, Church of South India Trust Association Vs. Telugu Church Council, reported in (1996) 2 SCC 520 and The Bahrein Petroleum Co. Ltd. v. P.J. Pappu and another, reported in (1966) 1 SCR 461.
As the aforesaid submission is based on assumption that the appellants had waived the jurisdiction of the Court, we deem it expedient to consider this question at the first instance.
In the counter affidavit filed on behalf of Principal-respondent no.3 of the writ application, the following stand was taken, which reads as follows:-
"16. That it is also pertinent to mention here that the writ petition filed before this Hon'ble Court is not maintainable for the reason that no action or inaction of the State Government had been assailed. The cause of action if any to the petition had accrued only within the territorial jurisdiction of this Hon'ble Court at Allahabad. The writ petition being liable to be dismissed also on the count of territorial jurisdiction the review petition is also not maintainable."
From a plain reading of the aforesaid plea taken in the counter affidavit, it is evident that a plea had been taken that the cause of action had accrued only within the territorial jurisdiction of the High Court at Allahabad and the writ petition deserves to be dismissed on the ground of territorial jurisdiction. On a perusal of the judgment of the learned Single Judge, it does not appear that the aforesaid plea, which was raised in the counter affidavit, was ever waived. It is interesting to note that in the writ application, the writ petitioner has nowhere averred the fact, which confers jurisdiction to Lucknow Bench of this Court. Therefore, we are of the considered opinion that the whole assumption of Mr. Chandra, that the appellants had waived the issue of territorial jurisdiction is unfounded. Once it is held so, the reference to the authorities cited by him and mentioned above is rendered academic.
To put the record straight, Mr. Chandra, has further submitted that there being no failure of justice, it is not a fit case in which interference is called for. Reliance has been placed on a decision of the Supreme Court in Kiran Singh and others v. Chaman Paswan and others, reported in (1955) SCR 117, and our attention has been drawn to the following passage of the said judgment, which reads as follows:-
"We have now to see whether the appellants have suffered any prejudice by reason of the under-valuation. They were the plaintiffs in the action. They valued the suit at Rs.2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial, it is they who appealed to the District Court as they were bound to, on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S.A. No.1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid, the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own."
As we have held that the appellants had not waived the question of jurisdiction, it was incumbent upon the learned Single Judge to decide the said question at the first instance and hence, the question of prejudice is absolutely irrelevant.
Mr. Chandra, further points out that the provision of Civil Procedure Code per se does not apply to the writ proceeding, but its principle does apply and in view of Section 21 of C.P.C., the order impugned is not fit to be interfered with in these appeals.
We do not have the slightest hesitation in accepting the broad submission of Mr. Chandra, that the provision of Civil Procedure Code does not per se apply in a proceeding under Article 226 of the Constitution of India, but its principle does apply.
As on facts, we have held that the appellants had not waived the question of jurisdiction before the learned Single Judge, the provision of Section 21 of C.P.C. is not remotely attracted.
We are of the opinion that the learned Single Judge, who had passed the order impugned, lacked territorial jurisdiction and the order impugned in these appeals, is fit to be set aside on this ground alone.
The writ petitioner, if so advised, may take recourse to an appropriate proceeding before the Court in jurisdiction, which needless to state, shall be decided on its own merit.
In the result, all these appeals are allowed, impugned order of the learned Single Judge is set aside with the observations aforesaid. Dt/-22.1.2010 RKK/-
(C.K. Prasad, CJ) (Y.K. Sangal, J)