Holding

Jurisdiction under Section 20 CPC is fixed at the date of institution; a later change of residence does not confer territorial jurisdiction.

Summary

The appellant borrowed Rs 6,02,000 from the respondent in Saudi Arabia and executed a promissory note there. The respondent filed a suit for recovery in the Subordinate Court at Attingal, Kerala. The appellant contended that the court lacked territorial jurisdiction under Section 20 of the CPC because the cause of action arose abroad. The trial court held jurisdiction on the basis of the defendant's residence in Kerala, but the High Court reversed, holding that the suit was not maintainable at the date of institution yet could be tried because the defendant later took permanent residence in Kerala. The Supreme Court held that jurisdiction under Section 20 must be determined at the date of filing; a subsequent change of residence does not confer jurisdiction, and the doctrine of dominus litus does not apply. Consequently, the appeal was allowed and the High Court judgment set aside.

Issues considered

Whether territorial jurisdiction under Section 20 of the CPC is determined at the date of institution of the suit or can be based on a subsequent change of residence of the defendant.
Whether the doctrine of dominus litus applies when Section 20 is invoked.
Whether a party may raise a new plea of jurisdiction before the Supreme Court when it was not raised before the High Court.

Legislation cited

Code of Civil Procedure, 1908s. 115, s. 15, s. 20
Constitution of Indias. 136

Subjects

Territorial jurisdictionSection 20 CPCDominus litusDiscretion under Section 115Civil procedureChange of residenceSupreme Court appeal

Judgment

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A MOHANNAKUMARAN NAIR
V.
VIJAYAKUMARAN NAIR

OCTOBER 11, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Code ofCivil Procedure, 1908: ';-

c ss. 20 & 15-Territorial jurisdiction-Question in regard to the
jurisdiction to be determined with reference to the date on which the
suit is filed and entertained and not with reference to a future date-
Subsequent change of residence of the party-defendant would not
confer territorial jurisdiction inlhe Court which it did not have at the
time of institution of the suit.
D
s.115-Jurisdiction under-Held, is discretionary-However, the
discretion has to be exercised in accordance with law and not de-hors
the same. >.

Doctrines-Doctrine of dominus litus-Applicability of-
E
Discussed.
Constitution of India, 1950-Artic/e 136-New plea-Party
c.annot be permitted to raise new plea before Supreme Court for the
first time.
F
Appellant borrowed Rupees Six lakhs from Respondent and
executed a promissory note to that effect. The monetary transaction
took place at Saudi Arabfa where both the parties were residing at
the relevant time. Respondent filed suit for recovery of said amount
before the Trial Court, Attingal, in the State of Kerala, India.
G
Appellant filed application challenging maintainability of the suit on
ground of lack of territorial jurisdiction. But the application was r
dismissed. Appellant filed revision petition. High Court held that J-
though the Trial Court did not have territorial jurisdiction to entertain

H 24
MOHANNAKUMARANNAIR v. VIJA YAKUMARANNAIR 25

l the suit on the date of institution, but thereafter Appellant was A
residing permanently, actually and voluntarily within jurisdiction of
the said Trial Court, hence the suit was liable to be considered by it.
Hence the present appeal in which it was contended that the High
Court itself having held that the suit was not maintainable, it could
not have declined to exercise its revisional jurisdiction. B
Allowing the appeal, the Court
HELD:l.The Court undoubtedly, exercises a discretionary
jurisdiction in terms of Section 115 CPC. Discretion, however, must
be exercised in accordance with law and not de-hors the same. c
[Para 5] [29-F]
Reliance Abport Developers Pvt. Ltd. v. Airports Authority of
India and Ors., (2006) 11 SCALE 208, relied on.
2.1. A suit can be filed only when there exists a cause of action D
and which have arisen within the jurisdiction of the Court. The
question in regard to the jurisdiction is required to be determined
with reference to the date on which the suit is filed and entertained
'· and not with reference to a future date. If a cause of action arises at
a later date, a fresh suit may lie but that would not mean that the E
suit which was not maintainable on the date of its institution, unless
an exceptional case is made out therefor can be held to have been
validly instituted. Discretion cannot be exercised, arbitrarily or
capriciously.It must be exercised in accordance with law. When there
exists a statute, the question of exercise of jurisdiction which would F
be contrary to the provisions of the statute would not arise.
[Paras 6, 8 and 11] [29-G, H; 30-A, G-H; 31-A]
"r
2.2. Sections 15 and 20 of the CPC provides for t!J.e place where
a suit can be filed. Section 15 mandates that suit shall be instituted
in the Court which is competent to try. Sections 15 and 19 regulates G
the filing of the suit at the places where cause of action has arisen.
Section 20 operates subject to the limitation contained in Sections
---\
15 to 19. (Paras 7 and 8] [29-G; 30-A-B]
2.3. Plaintiff is the dominus Iitus, but he can file a suit only at H
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26 SUPREME COURT REPORTS [2007] 11 S.C.R.

y
A one or the other places specified in the Code of Civil Procedure and
not at any place where he desires. Application of doctrine of dominus
litus is confined only to the cause of action which would fall within
Sections 15 to 18 of the Code of Civil Procedure. It will have no
application in a case where the provision of Section 20 thereof is
B sought to be invoked. [Paras 8 and 12] (30-B; 31-B]

New Moga Transport Company v. United India Insurance Co.
Ltd.and Ors., AIR(2004) SC 2154 and Jindal VijayanagarSteel (JSW
Steel Ltd.) v. Jindal Praxair Oxygen Company Ltd., (2006) 8 SCALE
668, relied on.
c
3. A distinction must be borne in mind between exercise of
jurisdiction by a Civil Court and a Writ Court in this behalf.
[Para 10] [30-E]
Mis. Kusum Ingots and Alloys Ltd. v. Union of India and Anr.,
D
AIR (2004) SC 2321 and Ambika Industries v. Commissioner of
Central Excise, (2007) 8 SCALE 488, relied on. ~

4. It is one thing to say that the parties had their residences in
).
India but the same would not mean that a suit could be filed at any
E of the places where the defendant resides. At all material times, the
parties were at Saudi Arabia. They were residing there only. They
had been working for gain in that country. It is also not a case where
under the promissory note the amount was to be paid in India. There
is nothing on record to show that any demand was made within the
F State of Kera la and the defendant was under any contractual
obligation to pay the said amount in Kerala where the demand has
been communicated. [Para 13] (31-C-D]

5. The High Court itself has held that no part of cause of action
arose in the State of Kerala. Respondent has not questioned that
G part of the order before this Court questioning the said finding.
Respondent, therefore, cannot be permitted to raise the said plea
before the Supreme Court for the first time. !-
[Paras 14and15} [31-E}

H 6. The contention raised on behalf of the respondent that a part
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MOHANNAKUMARANNAIR v. VIJAYAKUMARANNAIR 27
[SINHA,J.]
\
of cause of action arose within the jurisdiction of the trial court as A
the appellant made a commitmeni of payment of the amount within
the jurisdiction thereof, cannot be accepted for more than one reason.
Firstly, because no such contention had been raised before the High
Court. Secondly, because the High Court itself has arrived at a finding
that the Trial Judge had no territorial jurisdiction to entertain the B
suit. It is also not a case where the petitioner had been residing within
the local limits of the jurisdiction of the court ~here the defendant
at the time of commencement of the suit was actually or voluntarily
'Y
residing or carried on business or personaily worked for gain. He,
at the material time, had been residing in Saudi Arabia. The material c
date for the purpose invoking Section 20, CPC is the one of
institution of the suit and not the subsequent change of residence.
Change of residence subsequent to decision of the Court would not
confer territorial jurisdiction in the Court which it did not have.
[Para 16, 17and18) [31-F-H; 32-A-B] D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4811 of
2007.
_,_
From the Judgment and final Order dated 13.03.2006 of the High
Court ofKerala at Emakulam in C.R.P. No. 820 of2005. E
P.S. Narasimha, M. Gireesh Kumar and Khwairakpam Nobin Singh
for the Appellant.
Haris Beeran and Radha Shyam Jena for the Respondents.
The Judgment of the Court was delivered by F

'r S.B. SINHA, J. 1. Leave granted.

2. Appellant is said to have borrowed a sum of Rs.6,02,000/-
(Rupees Six Lacs Two Thousand Only) from the respondent. The said
transaction was carried out at Saudi Arabia. Appellant executed a G
promissory note on 8.5.1999. Admittedly, the parties were residing at
·~ Saudi Arabia at the relevant time. No part of the cause of action arose
within the jurisdiction of the Court of Subordinate Judge, Attingal.
Respondent herein filed a suit for recovery of the aforementioned amount
H
28 SUPREME COURT REPORTS [2007] 11 S.C.R.
' I-

A in the Subordinate Court at Attingal. Although both the parties were
residing in Saudi Arabia, Plaintiff filed a suit in the Court of Subordinate
Judge, Attingal for recovery of the said amount sometime in the year 2002.
Appellant having been summoned, appeared in the suit. He, inter alia,
raised an issue of lack of territorial jurisdiction on the part of the said
B court to entertain the suit. By an Order dated 15.3.2005, the application
of the appellant was dismissed by the Ld. Trial Judge holding:
"Admittedly the transaction took place at Riyadh in Saudi Arabia
which is beyond the jurisdiction of this court. According to the
defendant since the transaction took place beyond jurisdiction of
c this court it lacks teITitorialjurisdiction to entertain the suit. At the
same time plaintiff would contend that this court has territorial
jurisdiction since the defendant is a resident within the jurisdiction
of this court. As per Section 20(a) C.P .C. every suit shall be
instituted in a Court within the local limits of whose jurisdiction the
D
defendant actually and voluntarily resides or caITies on business
or personally works for gain. From the address given in the plaint
and from the averments in the plaint it can be seen that defendant
is a resident of Kadinamkulam Village which is within the
jurisdiction of this court. Defendant himself has no case that he is
E
not a resident within the jurisdiction of this Court. That being so
this court has tenitorialjurisdiction to entertain the suit. Contention
to the contrary raised by the defendant is devoid of any merit and
is liable to be rejected. Issue No. 1 is thus found in favour of the
F
plaintiff."

3. Appellant filed a civil revision thereagainst before the High Court
ofKerala which was marked as CRP No. 820of2005. By reason of
the impugned judgment, a learned Single Judge of the said Court relying
or on the basis of Section 20(c) of the Code of Civil Procedure and upon
G placing the legislative history of the said provision, opined :
"20. Thus I agree with the learned counsel for the revision
petitioner that strictly the court did not have teITit01ial jmisdiction
to entertain the suit on the date of the suit. The question of the
H nature of relief that has to be granted to the defendant arises for
MOHANNAKUMARANNAIR v. VIJA YAKUMARANNAIR 29
[SINHA,J.]

consideration now. Even if the suit were to be returned, on admitted A
facts that has to be represented to the same court now as
admittedly after the filing the suit the petitioner/defendant is residing
pennanently, actually and voluntarily in India. Any and every error
will not persuade the court to exercise its revisional jurisdiction.
Such jurisdiction has to be invoked only in aid of justice. I take B
note that there is no serious dispute raised about liability or the
execution of the promissory Note. There is also no serious
contention that if the plaint were returned accepting the plea
regarding jurisdiction, it has to be represented to the same court
as by then the petitioner had started permanent, actual and C
voluntary residence in India. I am in these circumstances satisfied
that th~ suit is liable to be considered and disposed of by the court
of Subordinate Judge of Attingal and the same need not be
directed to be returned."
D
4. Mr. P.S. Narasirnha, learned counsel appearing on behalf of the
appellant in support of this appeal submitted that the High Court itself
having arrived at a finding that the suit was not maintainable, could not
have refused to exercise its revisional jurisdiction. Although, no oral
argument was advanced before us on behalf of the respondents, a Written E
Submission has been filed supporting the impugned judgment.
5. The Court undoubtedly, exercises a discretionary jurisdiction in
terms of Section 115 of the Code of Civil Procedure. Discretion, however,
as is well known must be exercised in accordance with law and not de-
F
hors the same. See Reliance Airport Developers Pvt. Ltd. v. Airports
Authority of India and Ors., (2006) 11 SCALE 208.
6. A suit can be filed only when.there exists a cause of action and
which have arisen within the jurisdiction of the Court.
G
7. Sections 15 and 20 of the Code of Civil Procedure provides for
the place where a suit can be filed. Section 15 mandates that suit shall
be instituted in the Court which is competent to try.
8. The question in regard to the jurisdiction is required to be
H
30 SUPREME COURT REPORTS [2007] 11 S.C.R.

y
A determined with reference to the date on which the suit is filed and
entertained and not with reference to a future date. Sections 15 and 19
regulates the filing of the suit at the places where cause of action has arisen.
Section 20 operates subject to the limitation contained in Sections 15 to
19. Place of residence of the defendant being one of the exceptions
B thereto. Plaintiff is the dominus litus, but he can file a suit only at one or
the other places specified in the Code of Civil Procedure and not at any
place where he desires.
9. In New Moga Transport Company v. United India Insurance 'f
Co. Ltd. and Ors., AIR (2004) SC 2154, this Court held;
c
"19. The intention of the parties can be culled out from use of the
expressions "only", "alone'', "exclusive" and the like with reference
to a particular Court. But the intention to excluoe a Court's
jurisdiction should be reflected in clear, unambiguous, explicit and
D specific terms. In such case only the accepted notions of contract
would bind the parties. The first appellate Court was justified in
holding that it is only the Court at Udaipur which had jurisdiction
to try the suit.
>
E 10. A distinction must be home in mind between exercise of
jurisdiction by a Civil Court and a Writ Court in this behalf. See Mis:
Kusum Ingots and Alloys Ltd., v. Union of India and Anr., AIR (2004)
SC 2321. See also Ambika Industries v. Commissioner of Central
Excise, (2007) 8 SCALE 488.
F 11. Ordinarily, the rights and obligations of the parties are to be
worked out with reference to the date of institution of the suit. See Jindal
Vijayanagar Steel (.JSW Steel Ltd.) v. Jindal Praxair Oxygen --(

C0mpany Ltd., (2006) 8 SCALE668 Determination in regard to
maintainability of the suit, it is trite, must be made with reference to the
G date of the institution of the suit. If a cause of action arises at a later date,
a fresh suit may lie but that would not mean that the suit which was not
maintainable on the date of 1ts institution, unless an exceptional case is ;i... ·~

made out therefor can be held to have been validly instituted. Discretion,
as is well known, cannot be exercised, arbitrarily or capriciously. It must
H

•'
MOHANNAKUMARANNAIR v. VIJA YAKUMARANNAIR 31
[SINHA,J.]

be exercised in accordance with law. When there exists a statute, the A
question of exercise of jurisdiction which would be contrary to the
provisions of the statute would not arise.
12. Application of doctrine of dominus litus is confined only to the
cause of action which would fall within Sections 15 to 18 of the Code of B
Civil Procedure. It will have no application in a case where the provision
of Section 20 thereof is sought to be invoked.
13. It is one thing to say that the parties had their residences in India
but the same would not mean that a suit could be filed at any of the places
where the defendant resides. At all material times, the parties were at Saudi C
Arabia. They were residing there only. They had been working for gain
in that country. It is also not a case where under the promissory note the
amount was to be paid in India. There is nothing on record to show that
any demand was made within the State of Kerala and the defendant was
under any contractual obligation to pay the said amount in Kerala where D
the demand has been communicated.
14. The High Court itself has held that no part of cause of action
- >-
arose in the State of Kerala. Respondent has not questioned that part of
the order before this Court questioning the said finding. E
15. Respondent, therefore, in our opinion cannot be permitted to
raise the said plea before us for the first time.
16. The contention raised on behalf of the respondent that a part of
cause of action arose within the jurisdiction of the trial court as the appellant F
made a commitment of payment of the amount within the jurisdiction
thereof, cannot be accepted for more than one reason. Firstly, because
no such contention had been raised before the High Court. Secondly,
because the High Court itself has arrived at a finding that the learned Trial
Judge had no territorial jurisdiction to entertain the suit. It is also not a G
case where the petitioner had been residing within the local limits of the
jmisdiction of the court where the defendant at the time of commencement
of the suit was actually or voluntarily residing or carried on business or
personally worked for gain.
H
32 SUPREME COURT REPORTS (2007] 11 S.C.R.

A 17. He, at the material time, had been residing in Saudi Arabia
18. The material date for the purpose invoking Section 20 of the
Code of Civil Procedure is the one of institution of the suit and not the
subsequent change of residence. Change of residence subsequent to
B decision of the Court would not confer territorial jurisdiction in the Court
which it did not have.
19. For the reasons aforementioned, the impugned judgment cannot
be sustained which is set aside accordingly. The appeal is allowed. But,
in the facts and circumstances of the case, there shall be no order as to
C costs.
B.B.B. Appeal allowed.