IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3184 of 2010 To SPECIAL CIVIL APPLICATION No. 3192 of 2010 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to civil judge ?
========================================================= GUAJRAT AMBUJA CEMENTS LTD {NOW} AMBUJA CEMENTS LTD - Petitioner(s) Versus SARDAR SAROVAR NARMADA NIGAM -LTD. - Respondent(s) ========================================================= Appearance :
MR PERCY KAVINA Sr Advocate with Mr KK SHAH for Petitioner MR SN SHELAT Sr Advocate with Mr PR ABICHANDANI for Respondent ========================================================= CORAM : HONOURABLE Ms JUSTICE SONIA GOKANI 12th March 2012 COMMON CAV JUDGMENT Since this is a group of petitions arising out of different suits filed by the respondent against the present petitioner for refund of the amount involving identical question of facts and law in all the matters, they are being decided by this common judgment. For the purpose of deciding this group of matters, the facts as narrated in Special Civil Application No. 3184 of 2010 shall be considered as the leading facts.
The Petitioner is a Company registered under the Companies Act, 1956 and manufacturing the cement and having its plant at Ambujanagar, Taluka Kodinar, District Junagadh.
The Respondent – Company registered under the Indian Companies Act, 1956 and wholly owned by the Govt. of Gujarat and “State” within the definition of Article 12 of the Constitution of India.
Petitioner -company being one of the largest manufacturer of cement in the State of Gujarat, it is given certain tax exemption benefit by this state as well as Central Government time and again. Respondent -Company needed huge quantity of cement for the construction of Sardar Sarovar (Narmada) Project known as “Narmada Dam Project”. Therefore, Respondent -Company invited the tenders from all cement manufacturing companies in the year 1988 till 1995 and thereafter in the year 2000.
On acceptance of the tender of the petitioner-Company as per terms and conditions , supply was made to the respondent and the accounts were settled after such supply as per the terms and conditions of the tender agreement.
Petitioner-Company was enjoying the tax benefit as per Resolution No. GST-1686/2507/ITI dated 16th June, 1997. Petitioner-Company enjoyed two kinds of benefits. In the first type, vide eligibility certificate full tax exemption was given up to the year 2000 vide order dated 6th April, 1987 and in second type issued on 5th May, 1993, Company was given the Sales Tax Composite Scheme which was renewed from time to time up to year 2002. Petitioner-company filed sales tax returns periodically under the law and the assessment orders were also passed by Sales Tax Authority .
Respondent filed Special Civil Suit No. 773 to 779 and 884 to 885 of 2002 against the petitioner-Company before the Court of Civil Judge, Vadodara dated 30th September, 1999 essentially on the ground that the petitioner Company though was obliged to pass on the sales tax benefits to the customers has failed to do it and has allegedly continued to illegally retain huge amount of such benefits. The said suit was ordered to be returned to the present respondent on objection of territorial jurisdiction raised by the petitioner (original defendant) by the Civil Court, Baroda on 17th January, 2005, 19th January, 2005 and 26th February, 2005 with direction to file the same before the Court having proper jurisdiction.
Respondent filed said suit before the City Civil Court, Ahmedabad which were re-numbered and all these suits were once again returned to the respondent for want of territorial jurisdiction. However, after such order of return of plaint, the present respondent-original defendant moved an application to decide the jurisdiction of the Court where these suits were required to be filed on 5th January, 2009 under order 7 Rule 10 (a) of sub clause (2) of Civil Procedure Code before the same Court which passed the final order of having no jurisdiction. Despite objection from present petitioner, Court entertained the same and passed the order of fixing the jurisdiction. This caused serious grievance as as averred by the petitioner and more so since this order is passed after having ordered return of plaint.
The respondent-Company filed these suits as per the jurisdiction fixed by the City Civil Court in its order dated 6th February, 2009 before the Courts of Vadodara and Rajpipla .
It is say of the petitioner on merits that respondent- company since have preferred these suits to recover the amount allegedly recovered from it by way of refund of sale tax, only Sale Tax Authority would have power to demand such amount and it is not for the respondent to ask for any amount.
It is further say of the petitioner -Company that the payment of sales tax liability of the Company are under the statutory law and the same cannot be re-opened by the respondent-Company. It is further say of the petitioner the matter being between the petitioner and Sales Tax Authority if there is any recovery to be made, Sales Tax Authority is empowered to so do it. However, respondent herein gets no right to file any suit in respect of refund of sales tax. This petition in these circumstances, is preferred under Articles 226, 227, 228 and 14 of Constitution of India requesting for quashing and setting-aside the orders of City Civil Court dated 6th February, 2009 in Reg. Civil Suit No. 278/05 to 286/05 . It has further asked for stay of Civil Suits preferred before the Vadodara & Rajpipla Courts subsequent to the return of plaint by the City Civil Court, Ahmedabad.
Learned sr. advocate Mr. Percy Kavina appearing for the petitioner raised the following legal issues :-
(1) Whether the City Civil Court after having passed the order under Order VII Rule 10 CPC assume jurisdiction to decide the application for jurisdiction under Order VII R.10 (2) CPC at a belated stage?
(2) Whether the suit can be filed once again in the same Court [Vadodara Court] which earlier directed return of plaint ?
(3) Whether the respondent has any right of recovery since the question is essentially between petitioner herein and Sales Tax Authority.
It is urged by the learned advocate emphatically that once having passed the order dated 21st October, 2008. Under Order VII Rule 10 of the Civil Procedure Code, City Civil Court had no business to pass any order on application preferred after three months of the earlier order. This application by the respondent was not only to fill-up the lacuna of limitation but, that would also jeopardize the interest of present petitioner for raising the objection before the Vadodara Court in respect of both the jurisdiction as well as period of limitation. He further reiteratively argued that Vadodara Court has no jurisdiction, the question therefore would be as to whether one Court of equate jurisdiction can empower the Court of co-ordinate jurisdiction in assuming jurisdiction. He further argued that the respondent cannot approbate and reprobate particularly when the earlier order was not challenged by the respondent as such an order of City Court cannot efface the order of Vadodara Court which stated to have no jurisdiction.
Contradicting these submissions, learned senior advocate Mr. Suresh Shelat argued that while the order dated 6th February, 2009 was passed below Exh. 54, there was no hitch on law of limitation for the present petitioner to file the suits. All the suits have been filed before Vadodara Court on 2nd March, 2009 and present petition is preferred in the month of February, 2010 which means that nearly after one year of filing of suits before Vadodara Court, this petition is made .
According to learned advocate, there could be no res judicata against the jurisdiction of the Court, if otherwise jurisdiction is conferred by the statute on such a Court. He depended upon following judgments to substantiate his submissions :-
1. Mathura Prasad Sarjoo Jaiswal & Ors. Vs. Dossibai N.B.Jeejeebhoy reported in AIR 1971 SCC 2355(1).
2. Rajendra Kumar Vs.District Judge, Jaunpur and others reported in AIR 1996 ALLAHABAD 178
3. Smt. Isabella Johnson Vs. M.A.Susai (dead) by Lrs.
Reported in AIR 1991 Supreme Court 993
4. Ramdhari Lal and others Vs. Uday Narayan and others reported in AIR 1957 PATNA 324 (V 44 C 101 July).
5. Raj Mineral Through Proprietor Sharad L.Vyas Through POA Vs. State of Gujarat and Ors reported in 2011 (3) GLH 257.
On having thus heard learned counsel for the parties and on having examined the materials on record with their assistance also having closely examined the provisions of the law and applying the same to the facts of the instant cases, these petitions deserve no acceptance on merit and requires to be disposed of with the following reasonings :
Dealing with firstly the last issue raised, from the beginning, it is the say of the present petitioner Company that exemption from Sales Tax as well as Deferment in paying the sales tax was by virtue of the Government Resolution dated 16th June 1987. Two kinds of eligibility certificates – one being dated 6th April 1987 whereby complete sales tax exemption was given till the year 2000 and another eligibility certificate dated 5th May 1993 was for sales tax composite scheme the company had been given, which was renewed upto the year 2002. It is emphasized all along that the company paid sales tax returns time and again and corresponding effect of sales tax was also duly accounted in those returns and the sales tax authorities also passed orders without there being any objection or observations. Thus, having had benefit of evidences reflecting the payment of sales tax under exemption scheme, as also under the composite scheme, the petitioner has objected to the very filing of the suit by the respondent. As according to the petitioner, the suits which are for refund of the amount of sales tax, the respondent Company has neither entitlement nor authority to so demand it. According to the petitioner, assuming without admitting that that question of recovery of sales tax arises, it is only the sales tax authorities which would be vested with such powers to demand the amount, if at all illegally retained by the petitioner.
Respondent has objected to such challenge by stating that only with a condition of passing over such benefits to the customers, such sales tax benefits were made available to the petitioner when these benefits were illegally retained, the respondent company being the ultimate user of the product of cement, it is within its right to ask for refund from the petitioner Company.
This being the challenge on merit, this Court has resisted itself from going into the same as the only issue which is required to be determined is as to whether the impugned order passed by the learned Judge, City Civil Court is contrary to the settled principles of law, and whether filing of the suit by the respondents before Vadodara Court, pursuant to such order of the learned Judge, City Civil Court requires any interference. Therefore, at the cost of repetition, it is being specified that with regard to the contention on merit in the petition and also those raised during the course of oral submissions, no opinion is at all expressed on the merit of the issue.
That brings this Court to the vital challenge of order whereby not only the Court had returned the plaint for presenting it before appropriate Court having jurisdiction to try the disputes between the parties, but in a subsequent order passed thereafter, the Court decided jurisdiction of Vadodara Court in respect of the disputes between the parties.
Admittedly, as mentioned hereinabove, the plaintiff company is owned by the State of Gujarat and is established for the purpose of construction of Sardar Sarovar Dam; construction of Canals; distribution of water; construction of power house; production of electricity, etc.
Petitioner herein is the manufacturer of Cement and markets the same. Supply of cement by the petitioner under various Agreements during the years 1988-89 to 1994-95 concern 9 contracts. Various terms and conditions govern both the parties under these contracts and over and above the same, some other conditions were also binding both of them.
The petitioner was enjoying benefit of Sales tax Incentive Scheme during the entire period of suit agreements. It is the say of the respondent that as per the condition of agreements, the petitioner was bound to supply cement covered under exemption given by the State Government, and therefore, the same has to be at a reduced price as the sales tax component would be deducted as the price quoted was inclusive of the sales tax. The total supply was 88,750 metric tonnes of cement and the total amount paid to the petitioner with interest was to the tune of Rs. 11,69,43,302=44p.
It is the say of the respondent that when excess amount was charged by the present petitioner and for recovery of the suit amount, communication was made to the petitioner and the cause had arisen for filing of these suits at that stage.
As per the terms of the contract, all the questions and disputes arising out of, or in connection with the contract shall be tried by the Court where the Head Quarter of the Executive Engineer, who had signed the agreement is situated. The head office of the Executive Engineer of Narmada Project being Kevadia Colony and the Stores Division at Vadodara, who executed the suit agreement was at Vadodara.
Initially, therefore, the suit was filed on 21st October 2002, being Special Civil Suit No. 884 of 2002 before the learned Sr. Civil Judge, Vadodara. However, the learned Judge, by a cryptic order dated 25th January 2005 returned the plaint for presentation before the appropriate Court. The said order dated 25th January 2005, reads thus -
“Heard. As both the parties have no objection and this court have not jurisdiction as alleged, the plant is ordered to return the plaintiff to produced in proper Court. Plaintiff is ordered to submit in proper Court within one month.
No order as costs.”
It is extremely surprising as to why neither side has challenged such an order of learned 5th Joint Civil Judge [SD], Vadodara dated 25th January 2005. One can understand that petitioner may not be interested in raising any dispute against the said order, the respondent would surely have preferred to contest the same. None of the officers who might have been incharge of the matter cared to challenge the same and the plaint was presented before the City Civil Court and the suit was again numbered as Civil Suit No. 278 of 2005.
Vide Application Exh. 31, the petitioner herein requested the Court to decide the issue of jurisdiction as a preliminary issue. It needs to be noted that before the Vadodara Court, the petitioner only had raised the question of territorial jurisdiction. It also gave details of supply of cement at various places and referred to the written statement filed by the it stating further that the Executive Engineer though presently has his head quarter at Vadodara, but, at the relevant time when the tender was issued, he had his head quarter at Kevadia Colony, and therefore, the City Civil Court would have no jurisdiction. A request was made to decide the said application on the issue of territorial jurisdiction first. The Court, after detailed hearing, passed an order dated 21st October 2008 partly allowing Application Exh. 31 stating therein that the City Civil Court has no jurisdiction to try the suit and the office was directed to return the plaint to the plaintiff, to be presented before appropriate Court within thirty days of the said order.
Since this application under Order VII Rule 10 CPC was preferred by the present petitioner who raised the dispute of territorial jurisdiction, no challenge is made to this.
It is worthwhile mentioning at this stage that while discussing the issue of territorial jurisdiction, the Court also noted that Vadodara Court has jurisdiction in as much as the notice to recover excess amount charged as Sales tax were issued by the office of the Executive Engineer, Vadodara and the said office controlled the entire project work under the contract tenders. It also noted the fact that the factual details and transactions clearly reflect that the Court at Vadodara has jurisdiction. It further noted that since there was an order of learned Civil Judge [SD], Vadodara of returning the plaint on the ground that it had no jurisdiction, the City Civil Court would have no authority to set-aside such an order of learned Civil Judge [SD], Vadodara nor can it pass any direction for presentation of the suit to Vadodara Court. It also further made a mention of the documentary evidences produced by the respondent which reflected the contract agreement executed by Executive Engineer was within local limit of the Court and clauses 14 & 17 specifically mention that, “all questions/disputes and differences arising under/out of or in connection with the contract, if concluded shall be subject to exclusive jurisdiction of the Court at the headquarter of the Executive Engineer who has signed the contract agreement”.
After such order of return of plaint on 21st October 2008, as per the rojkam produced on record, on 20th November 2008, the respondent made an application for extending the time for one month by preferring Application Exh. 51 alongwith delay condonation application which was granted by the Court. On 8th December 2008, further extension was sought for vide Application Exh. 52 and the Court also granted such extension by 30 days. On 5th January 2009, an application was given by the respondent-plaintiff under Order VII Rule 10A sub-Rule (2) CPC vide Exh. 56 which was given by the learned advocate for the respondent. Time to return plaint was extended upto 23rd January 2009. Eventually, by an order vide Exh. 58, Court returned the Plaint and the documents simultaneously by passing an order below Exh. 54 under Order VII Rule 10 sub- Rule (2) CPC on 6th February 2009.
If one looks at the impugned order dated 6th February 2009, the Court directed thus -
“Plaintiff application Exh. 54 is hereby granted. It is hereby declared that the suit nos. mentioned in column no.2 and the person who present the suit plaint mentioned in column no.5 to respective court mentioned in column no.3 who has jurisdiction to try present suit as mentioned in the above table. This order is passed in continuation of earlier order passed on 21st October 2008. The suit numbers mentioned in above list and noted persons executive engineer, is hereby directed to
It is termed as an order in continuation of the earlier order dated 21st October 2008 and it has been directed in this order to present this suit in the Court mentioned at Column no.3, which are the Courts of learned Civil Judge [SD], Vadodara & Narmada. It is the say of the learned Judge that as per the terms prevailing between the parties, jurisdiction will be where Executive Engineer at the relevant point of time was working, who had signed the agreement. So, in every suit, the place of jurisdiction would be decided on the basis of jurisdiction of the Executive Engineer who signed the agreement and according in the order impugned, the Court specified at Column no.3 & 5 respectively the jurisdiction of the Court and the name of the party whose Executive Engineer was either based at Kewadia Colony or at Vadodara.
Learned Sr, advocate Shri Kavina has severely objected to such practice of deciding the jurisdiction and taking away thereby the right of the petitioner to challenge the aspect of jurisdiction before the Court at Vadodara or whichever Court the respondent might have preferred to go to, by stating that once having returned the plaint under Order VII Rule 10 CPC, the Court would become functious officio and would have no right to decide the jurisdiction as has been done in the instant case, three months after the earlier order, as was passed below Exh. 54. He also further objected on the ground that City Civil Court, Ahmedabad has no authority to decide the jurisdiction of a Court of coordinate jurisdiction. Moreover, the earlier order passed by the Vadodara Court of returning the plaint when was never challenged by the respondent, it cannot approbate and reprobate by seeking the prayer of presenting it before the very same Court nor would the City Civil Court have any authority to efface the earlier order of Vadodara Court, according to the learned sr. advocate.
In the aforementioned chronological factual background, the question that requires to be considered is as to whether the Court after affirming that it has no jurisdiction can pass such an order three months later, after periodical extension of time of presentation of plaint before other court of appropriate jurisdiction.
Once the Court gives an intimation to the party of its decision that it has no jurisdiction to entertain the suit, it is for the plaintiff to make an application to the Court specifying the Court in which he proposes to present the plaint, after its return and in such event, the Court returning the plaint is within its discretion to fix the date for appearance of both the parties. Undoubtedly, there is no time limit stated as to within what time, once having been intimated the decision of return of the plaint, the plaintiff is required to make an application for presenting the same before appropriate Court and with no such time limit having been specified under the statute, the concept of reasonable time is to be employed. Applications given time and again for extension of such period for presenting the plaint and finally having directed the plaintiff-respondent to present it before the appropriate Court on or before 5th March 2009, by an order dated 6th February 2009 cannot be said to be an unreasonable time period having been availed to the respondent for presenting the plaint, after passing of the award of the return of the plaint. However, the issue here is not that. It is not the respondent-plaintiff who gave an application specifying the Court in which it proposed to present the plaint after its return, and therefore, making a prayer to fix the date for appearance of the parties in the Court by application Exh.54. Instead, plaintiff-respondent herein requested the Court to fix the proper Court having territorial jurisdiction as well as date for appearance of the parties in such Court and in the opinion of this Court, the petitioner has reason to object to such an application and the order passed thereon on 6th February 2009.
Learned Sr. advocate Shri S.N Shelat argued that during the course of discussion of the earlier order, the Court had already revealed its mind as far as jurisdiction of the Vadodara Court was concerned and it almost had held that Vadodara Court is the proper Court for the purpose of adjudicating the disputes between the parties. And therefore, according to the learned counsel, the subsequent order dated 6th February 2009 being merely the extension of the earlier order, the same should not be set-aside only on technical ground.
In the opinion of this Court, learned counsel is right in submitting that Order below Exh.31 does reveal explicitly Court's mind as to why the Courts at Vadodara have jurisdiction, however, subsequent order though termed as extension, can surely be not so held by this Court. It was in the first place not desirable for the respondent to make such request nor was it then required of the learned Judge, City Civil Court to adjudicate and clarify the jurisdiction of other court for the purpose of presentation on having once decided in clear terms with regard to its own jurisdiction.
Worthwhile to mention at this stage is the decision of the High Court of Judicature at Patna in case of Ramdhari Lal & Ors. vs. Uday Narayan & Ors., reported in AIR 1957 Patna 324, wherein it is held that, “before returning the plaint under Rule 10, it is enough for the Court to find that it has no jurisdiction to entertain the plaint filed before it. Whether other Courts have jurisdiction or not is not the concern of the Court acting under O.7, R.10 for the simple reason that a Court without jurisdiction cannot determine any matter.” It further held that, “...If the plaint returned from one Court is filed in another Court which has no jurisdiction also to entertain that plaint, it will be a matter for decision by that Court and Courts superior to it.”
It is a matter of record that while returning the plaint on an application given by the present petitioner under Order VII Rule 10 CPC, the Court in paragraph 48 has almost spelt out as to why Vadodara Court would have jurisdiction to try such dispute.
Para-48 of the impugned order reads thus -
“48. It is pertinent to note that the notices to recover the excess amount charged as sales tax were issued from the office of the Executive Engineer, Vadodara and the said office controlled the entire project work under tender contract. And therefore, considering the above factual aspect and transactions the Vadodara Court has jurisdiction but however, the Court of Civil Judge, Senior Division, Vadodara passed an order that the said Court has no jurisdiction to entertain these nine suits and directed the plaintiff to present the suit plaints to proper Court as Vadodara Court has not jurisdiction.
This Court has no power to set-aside the order passed by the aforesaid Court of Civil Judge, Senior Division, Vadodara and therefore, this Court cannot pass any direction for presentation of the suit plaints to Vadodara Court.”
As is apparent from the above quoted order, it felt short by some words to state that Vadodara Court had returned the Plaint erroneously. City Civil Court not being the supervisory Court nor the appellate Court, it could not have set aside such an order of return of plaint. Moreover, that order also was not challenged by either side, and therefore, it rightly could not have so done it. But while holding that it had no jurisdiction, it did come to the conclusion about the territorial jurisdiction of Vadodara Court. Again, as pointed out hereinabove, it is not necessary for the Court which returns the plaint under Order VII Rule 10 CPC to specify or determine the Court which has the jurisdiction. It is sufficient for it to hold that it does not have jurisdiction. However, while deciding that it has no jurisdiction in the discussion as to which Court has jurisdiction to try the disputes by default, learned Judge, City Civil Court fixed the jurisdiction of Vadodara Court.
And therefore, after having discussed at paragraph 48 in the Order dated 21st October 2008 made below Application Exh.31, the learned City Civil Judge ought to have stopped at that stage and could not have decided Application Exh. 54 by specifying the Court having jurisdiction for the purpose of presenting plaints.
For the reasons best known to the learned Presiding Judge of the Civil Court, Vadodara in the year 2005, return of the plaint was directed and under very dubious circumstances, the concerned responsible officer of the respondent never challenged such an order despite there being a specific averment in the plaint itself as to why jurisdiction vested with the Vadodara Court in the dispute that arose out of agreements/contracts entered into by and between the parties. Clause 9 of the tender agreements specifically states that the Contract shall be governed by the laws in force in State of Gujarat and shall be subject to the jurisdiction of the Court at the district headquarters of Executive Engineers signing the contract.
In the present petitions also, details of the respective tenders with their locations where Executive Engineers signed the documents have been specified at page 13 and 14 of the memo and in such circumstances, for nearly 10 years the files have been tossed and turned from one Court to another without substantive dispute being adjudicated upon by the competent Court.
The decision of Apex Court relied upon by the learned senior advocate appearing for the respondent can be profitably applied to the facts of instant case and it could be held that erroneous judgment cannot act against the respondent in presenting the matter before the very same Court.
On the aspect of principles of res judicata, three authorities have been relied upon -
[1] Smt. Isabella Johnson v. M.A Susai (dead) by Lrs., reported in AIR 1991 SC 993;
[2] Mathura Prasad Sarjoo Jaiswal & Ors. vs. Dossibai N.B Jeejeebhoy, reported in AIR 1971 SC 2355(1);
[3] Rajendra Kumar v. District Judge, Jaunpur & Ors., reported in AIR 1996 Allh. 178;
In Mathura Prasad Sarjoo Jaiswal & Ors. [Supra], the Apex Court held that the question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if those decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.”
This view was also reiterated in case of Smt. Isabella Johnson [Supra] which says that the Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. Further that there could be no estoppel on a pure question of law and the question of jurisdiction is a pure question of law.
In case of Rajendra Kumar [Supra], Allahabad High Court held that principles of res judicata would not be attracted if there is a wrong decision on the point of jurisdiction. It sought to rely upon the judgment of Apex Court rendered in case of Mathura Prasad Sarjoo Jaiswal & Ors. {Supra}.
As most of the suits filed by the respondent have been presented before Vadodara Court, it is required to be noted at this stage that these petitions have been preferred nearly after one year of the presentation of the suits before Vadodara Court which was done on 2nd March 2009 and the petitions have been preferred; as mentioned hereinabove in the month of February 2010. Be that as it may, as correctly noted by the learned Judge, City Civil Court that at the time of returning the plaint vide its order dated 21st October 2008, it is the Court at Vadodara which would have jurisdiction; keeping in view the terms of the contract in those matters where Executive Engineer had his Office at Vadodara and the one who had signed the agreement at the relevant point of time in those matters, where the Executive Engineer has his main office at Kevadia Colony, the Civil Court at Narmada District will have jurisdiction. However, even while so holding, it will be necessary to specifically make a mention that the subsequent order of the learned City Civil Court fixing the jurisdiction of Vadodara Court by passing an order on an Application preferred vide Exh. 54 was an erroneous assumption of power.
Having regard to the facts and circumstances of the instant case, this Court is of the firm opinion that for the reasons which are obvious; as discussed hereinabove, discretionary jurisdiction is not required to be exercised for quashing the impugned order by issuing writ either under Article 226 or under Article 227 of the Constitution of India.
It would be worth mentioning at this stage that both the authorities pressed into service by the learned senior advocate appearing for the respondent rendered in case of Radhey Shyam & Anr. [Supra] and also in case of Raj Mineral, through Proprietor-Sharad L.Vyas, Through POA v. State of Gujarat & Ors., reported in 2011 (3) GLH 257 are on the power of the High Court under Articles 226 & 227 of the Constitution of India, wherein, it is held that High Court needs to sparingly exercise power of superintendence vested under Article 227 of the Constitution. Under this article, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned and such power, however, is not to be exercised to correct a mistake of fact and of law. Essential distinction between exercise of power under Article 226 & 227 of the Constitution are also pointed out affirming the decision rendered in case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675. In Raj Mineral [Supra], reference is made of various decisions of the Apex Court, while discussing the powers conferred under Article 226 of the Constitution, wherein it is held that mere fact that an order is without jurisdiction or that there is an error apparent on the face of the record, is not sufficient to justify the issue of a writ. It must be established that the order has resulted in manifest injustice. It is, therefore, open to the High Court to refuse to issue writ, if it feels that for issuance of writ, no grounds exist. Specific reference needs to be made of the judgment of the Apex Court referred to in this decision rendered in case of Kewal Krishna Puri & Anr. v. State of Punjab & Ors., reported in AIR 1980 SC 1008, wherein the Apex Court has held as under :-
“Article 226 grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such an order as public interest dictates and equity projects.
Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be depended upon considerations as on public interest.
It has been rightly observed that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tampered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extra ordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not.”
Writ jurisdiction under Article 226 & 227 of the Constitution since are required to be exercised sparingly, merely because, there is an error apparent on the face of the record, will not authorize this Court to issue the writ. Writ being discretionary in nature, the same needs to be exercised only exceptionally, the grant or withholding of such relief would depend on consideration which are very well laid down.
Having so held and not having approved the subsequent action and direction below Exh.54, it is to be held that merely because an application has been erroneously preferred by the present respondent and erroneously decided by the learned Judge of City Court, that would not ipso facto take away the jurisdiction of Vadodara Court. Moreover, as noted above, nearly a decade has elapsed in determining the issue of jurisdiction and no fresh round should be permitted by issuing the writ; as requested for. Even while holding the order Exh.54 erroneous, the effect of earlier order passed under Order VII Rule 7 CPC on 21st October 2008 cannot go away. That order having been extended for the purpose of presentation of the plaint and the same having been already presented before the Vadodara Court or other Court of competent jurisdiction, quashment of the Order Exh. 54, would not subserve the cause of justice at all for this being surely not the case of manifest injustice to the petitioner herein. On the contrary such action would permit the petitioner to once again challenge the same on the aspect of territorial jurisdiction when otherwise the cases are not having been presented incorrectly before the Vadodara Court and other Courts. It is much desired that the cases are now determined on merits expeditiously rather than being fought on peripheral aspects. And therefore, in the facts and circumstances mentioned hereinabove, request for issuance of writ is not to be acceded to. Resultantly, these petitions fail and are accordingly dismissed.
{Ms. Sonia Gokani, J.} Prakash*