CERTAIN IMPORTANT CASE-LAWS FOR

SECTION 9, 15-21

Cases of lack of jurisdiction may broadly be divided into three

categories. The first is of pecuniary and territorial jurisdiction. Such
defect is not absolutely fatal and as per section 21 C.P.C. if objection
is not raised at the earliest opportunity and there has not been failure
of justice then lack of pecuniary or territorial jurisdiction will not
vitiate the decree. The next is of that type regarding which objection
may be raised at late stage of the suit or even for the first time in
appeal (e.g. bar of limitation) but not in execution or collateral
proceedings. The third type of jurisdictional defect, which may be
described as jurisdictional defect of highest order, is such which
renders the decree nullity and liable to be questioned even in
execution or collateral proceedings. It is termed as lacking jurisdiction
over the subject matter, lacking competence of the Court to try the
case or inherent lack of jurisdiction.

In the case of Ittyavira Mathai v. Varkey Varkey and another, AIR

1964 Supreme Court 907, the question which fell for consideration
before this Court was if a Court, having jurisdiction over the parties to
the suit and subject matter thereof passes a decree in a suit which was
barred by time, such a decree would come within the realm of nullity
and the Court answered the question in the negative holding that such
a decree cannot be treated to be nullity but at the highest be treated to
be an illegal decree.
Section 21 imposes three conditions; one is that objection to jurisdiction shall be
taken before the trial court, second is that it must be taken at or before
settlement of issues and the third is that there should have been consequent
failure of justice. The third condition comes into picture only if suit has been
decided on merit. If objection is decided as preliminary issue then the question
of failure of justice is immaterial vide para 7 of Bahrain Petroleum v. P.J.
Pappu, AIR 1966 SC 634

Para 23 of Hasham Abbas, supra, is quoted below:- ―23. We may, however

hasten to add that a distinction must be made between a decree passed by a
court which has no territorial or pecuniary jurisdiction in the light of Section 21
of the C.P.C.; and a decree passed by a court having no jurisdiction in regard to
the subject matter of the suit. Whereas in the former case, the appellate court
may not interfere with the decree unless prejudice is shown, ordinarily the
second category of the cases would be interfered with.‖

Harshad Chiman Lal Modi v. DLF Universal Ltd. AIR 2005 SC 4446 By virtue
of Section 16 suit in respect of immovable property may be instituted before the
court within whose territorial jurisdiction the property is situate. For such suits,
place where cause of action arises or where defendant resides etc. is wholly
irrelevant vide Harshad Chiman Lal Modi v. D.L.F. Universal Ltd., AIR 2005
SC 4446.
8. We are unable to uphold the contention. The jurisdiction of a court may be
classified into several categories. The important categories are (i) Territorial or
local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the
subject matter. So far as territorial and pecuniary jurisdictions are concerned,
objection to such jurisdiction has to be taken at the earliest possible opportunity
and in any case at or before settlement of issues. The law is well settled on the
point that if such objection is not taken at the earliest, it cannot be allowed to be
taken at the subsequent stage. Jurisdiction as to subject matter, however, is
totally distinct and stands on a different footing. Where a court has no
jurisdiction over the subject matter of the suit by reason of any limitation 34
imposed by statute, charter or commission, it cannot take up the cause or matter.
An order passed by a court having no jurisdiction is nullity.‖

Dhodha House AIR 2006 SC 730 (supra) do not state the law correctly. Para 24
to 26 are quoted below: ―24. It is trite law that a judgment and order passed by
the court having no territorial jurisdiction would be nullity. 25.In Kiran Singh
and Others v. Chaman Paswan and Others [ AIR 1954 Supreme Court 340], this
Court observed : "It is a fundamental principle well-established that a decree
passed by a court without jurisdiction is a nullity, and that its invalidity could be
set up whenever and wherever it is sought to be enforced or relied upon, even at
the stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of
the subject-matter of the action, strikes at the very authority of the court to pass
any decree, and such a defect cannot be cured even by consent of parties. 26. A
judgment or order passed by a court lacking territorial jurisdiction, thus, would
be coram non judice. Thus, if a district court, where the plaintiff resides but
where no cause of action arose otherwise, adjudicates a matter relating to
infringement of trade mark under the 1958 Act, its judgment would be a nullity.
Firstly, in respect of final judgment and decree the view is not correct as it does
not take into consideration section 21 and latter part of para 6 and para 7 of
Kiran Singh (1954). In para 25 only earlier part of para 6 of Kiran Singh has
been quoted. Both the paras of Kiran Singh are quoted in Appendix B. Secondly
the observation is obiter as the case arose out of temporary injunction matter
and issues had not even been framed.
Place of residence of plaintiff/ applicant is irrelevant for the purpose of
jurisdiction. However, there are certain exceptions to this principle. By virtue of
Section 166 (2) of the Motor Vehicles Act 1988 as amended in 1994 application
for compensation there under may also be made at the option of the claimant
before the Tribunal having jurisdiction over the area where the claimant resides
(Mantoo Sarkar v. Oriental Insurance Co. Ltd., AIR 2009 SC 1022 holding that
for a migrant labour even temporary residence at the time of accident is
sufficient to confer jurisdiction). Similar is the position under section 21 of
Workmen‘s Compensation Act, 1923 (Morgina Begum v. Managing Director,
Hanuman Plantation Ltd., AIR 2008 SC 199) and section 62(2) of Copy Right
Act 1957 and section 134(2) of Trade Marks Act 1999 (M/s. Dhodha House v.
S.K. Maingi,AIR 2006 SC 730)