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HIGH COURT OF DELHI
JUDGMENT
MONTESSORI EDUCATION SOCIETY REGD & ORS..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. J.P. Sengh, Sr. Advocate with Mr. V.K. Tandon, Ms. Prerna Tandon, Mr. Nishant Sharma and Mr. R.L. Sinha, Advocates
For the Respondent : Mr. Arav Kapoor and Ms. Komal Gupta, Advocates
[ The proceeding has been conducted through Hybrid mode ]
1. This is an application seeking exemption from filing certified copies of the annexures.
CM APP No. 9351/2023
2. Exemption is allowed, subject to all just exceptions.
3. Application stands disposed of.
4. With the consent of learned counsel for the parties, the petition CM(M) 350/2023 & CM APP No. 9350/2023 itself is being taken up for disposal at the admission stage itself.
5. The petitioners challenge the order dated 13.12.2022 passed in CS DJ 989/2022 titled ‘Shaily Grover and Ors vs. Montessori Education Society Regd & Ors.’ whereby the leave to institute the suit under Section 20 sub-Section (b) of Code of Civil Procedure, 1908 (in short “CPC”) was granted to the respondents/plaintiffs.
6. Mr. J.P. Sengh, learned senior counsel for the petitioners submits that the entire cause of action, even if it is taken to be on the statement contained in the plaint, reflects the fact that the whole issue relates to the elections which were conducted by the respondents/defendants at Ashok Vihar, in the office of the Society.
7. Learned senior counsel also submits that even if the allegations leveled against the defendants no.2 and 3 is taken at its face value, the fact still remains that the same will be relatable to the reliefs as sought by the respondents/plaintiffs in their suit.
8. Learned senior counsel submits that the Doctrine of Forum Conveniens is applicable to all the parties of the suit and not plaintiff alone. Learned senior counsel submits that that cause of action having arisen at Ashok Vihar, in that, the elections to various posts of the office bearers of the petitioner-society; the records are being maintained at the Ashok Vihar office of the Society; and all other relatable documents etc. are available at the Ashok Vihar office. Based on that Mr. Sengh, learned senior counsel submits that even if this Court looks at issue on the point of doctrine of Forum Conveniens, the records and the substantial cause of action having arisen at Ashok Vihar, it would have been in the interest of justice for the suit to have been instituted at Ashok Vihar where the original and the basic cause of action had arisen.
9. Learned senior counsel, while referring to sub-Section (b) of Section 20 of CPC submits that though, not so worded, yet leave to institute a particular suit in a particular Court of competent jurisdiction ought to have been obtained by the respondents/plaintiffs before the suit could be stated to have been duly instituted.
10. Learned senior counsel further submits that admittedly there is no application in that regard nor any such leave was ever obtained by the respondents/plaintiffs.
11. Learned senior counsel attacks the impugned order to submit that in a perfunctory and arbitrary manner the learned Trial Court has dealt with the objections on the question of jurisdiction and arbitrarily granted leave without giving any reasons whatsoever.
12. Learned senior counsel also relied upon the judgment of the learned Single Judge of the Bombay High Court in Second Appeal NO. 23/1962 decided on 10.04.1968 titled ‘Manoramabai Moreshwar & Ors. vs. Ibrahim Khan Bismilla Khan & Ors’, whereby the learned Single judge had held that a specific leave by way of an application ought to have been filed by the plaintiff, prior to such leave being sought.
13. Learned senior counsel submits that having regard to the fact that no such application nor leave having been sought by the respondents/plaintiffs, the impugned order is violative of the ratio laid down by Bombay High Court in the aforesaid judgment.
14. Learned senior counsel also submits that though the Bombay High Court had not referred to the Doctrine of Forum Conveniens, however by inference, the observations contained in para-10 of the judgment would amount to the learned Single Judge having upheld the said doctrine.
15. Learned senior counsel finally submits that it is the indelible right of the petitioners/defendants other than those against whom, the suit has been instituted by the respondents/plaintiffs, to object to the territorial jurisdiction of that particular Civil Court on the ground that it is not convenient either on fact or on law.
16. Learned senior counsel also submits that the impugned order is absolutely arbitrary and bereft of any reasons which are substratum of orders entailing drastic civil consequences to the parties before it.
17. On that basis, learned senior counsel submits that the impugned order is unsustainable, both in material particulars as well as on law and ought to be set aside.
18. Per Contra, learned counsel appearing for the respondents/plaintiffs invites attention of this Court to the provisions of Section 20(b) of CPC and submits that no such leave or an independent application for the purposes of filing a suit falling within the ambit of Section 20(b) CPC is contemplated even by the plain reading of the subsection.
19. Learned counsel submits that on a plain reading of Section 20(b) of CPC, brings to fore the fact that the only responsibility of the plaintiffs in any suit is to merely show to the Court that, infact there is a defendant or defendants within the territorial jurisdiction of a particular Court to file, institute and maintain a suit.
20. Learned counsel submits that there is no contemplation either in Section 20(b) of CPC for the Court to give any reason except subjective satisfaction that the Court is competent to adjudicate a suit instituted before it.
21. Learned counsel also submits that the provisions of Section 20(a), (b) and (c) of CPC contain the word “or” which would automatically mean that the expressions used therein are to be read disjunctively and not in conjunction and submits thereon that the provisions of Section 20(b) CPC permits the respondents/plaintiffs to institute a suit where any of the defendants resides and not necessarily where the cause of action may have arisen.
22. Learned counsel relies upon the judgment of Division Bench of this Court passed in FAO(OS) 24/1995 titled ‘Bank of Baroda vs. Jai Lakshmi Road Services P. Ltd & Ors. decided on 25.04.2001 wherein the same issue had arisen for the consideration of learned Division Bench. On that, learned counsel submits that the learned Division Bench had categorically defined the word “or” and came to the conclusion that it is meant to be read as disjunctively and the clauses contained therein are to be read as separate and alternate to each other, rather than to be read together.
23. Learned counsel also submits that the petitioners/defendants have not disputed the fact that one of the defendants namely defendant no.3 resides within the territorial jurisdiction of the Court before which this present suit has been instituted.
24. Learned counsel, on the issue that no leave was sought nor any application before the learned Trial Court, submits that the said argument is incorrect and draws attention of this Court to para-44 of the plaint whereby the leave of the Court, has been sought by the respondents/plaintiffs.
25. Learned counsel vehemently submits that at the stage of considering an application under Order VII Rule 10 CPC, it is trite that only and only the contents of the plaint are to be seen and the defence or any objections of the defendants are not to be considered at all.
26. This Court has heard the rival submission of the parties before it and perused the impugned order, the plaint as well as the other documents and the judgments relied upon by the parties.
27. It would be apposite to extract the provisions of Section 20(b) for the purposes of convenience.
A plain reading of sub-Section (b) of Section 20 CPC brings to fore an aspect that the Civil Court is empowered to permit the plaintiff to institute a suit where one of the many defendants would be residing and the use of the word “or” between sub section (b) and (c) would itself indicate that the residence of one of the defendants is also to be considered and need not necessarily be dependent upon whether any cause of action to institute a suit against the said defendant would have arisen therein.
28. On the arguments of learned senior counsel on the issue that no application or leave separately was sought by the respondents/plaintiffs is concerned, this Court has considered the contents of para 44 of the plaint wherein the said leave was specifically sought by the respondents/plaintiffs to institute the suit before the said Civil Court.
29. The contents of para 44 of the plaint are extracted hereunder:- “That the Defendant No.3 resides within the jurisdiction of this Hon’ble Court and accordingly this Hon’ble Court has the territorial jurisdiction to entertain and try the present suit. Moreover, part cause of action has also arisen within the jurisdiction of this Hon’ble Court whereby emails have been written to the Defendant No.3 received by him within the jurisdiction of this Hon’ble Court. Many of the actions and irregularities forming parts of cause of action have been done within the jurisdiction of this Hon’ble Court. The Plaintiff further seeks the leave of this Hon’ble Court to institute the present suit before this Hon’ble Court since the other Defendants may reside or work for gain outside this Hon’ble Court’s jurisdiction.”
30. The objection raised by learned senior counsel appears to be not founded on the factual narration made by the respondents/plaintiffs in the suit. The respondents/plaintiffs have categorically sought the leave of the Court to institute the suit on, ostensibly, sub-Section (b) of Section 20 CPC. That apart, there is a categoric assertion by the plaintiff therein that defendant no.3 in the suit resides within the jurisdiction of the Court and that the Court had territorial jurisdiction to entertain the suit apart from the other causes of action.
31. So far as the ratio laid down by the learned Single Judge of Bombay High Court is concerned, there is no quarrel with the proposition laid down therein. However, the fact that in the present case specific averment seeking leave of the Court, ostensibly, under sub- Section (b) of Section 20 CPC, having been taken by the respondents/plaintiff, the pre-conditions as laid down by the learned Single Judge of the Bombay High Court appears to have been fulfilled.
32. So far as the judgment rendered by the learned Division Bench of this Court is concerned, the observations made in the said judgment particularly in para 7 and 8, where learned Division Bench has observed that the object of the provisions of sub-Section (b) of Section 20 of CPC is to ensure that the plaintiff is provided a forum which is convenient as also to avoid the plaintiff being driven from one Court to another where various defendants reside in different parts of the Country. It has been observed that in the public interest as also to avoid inconvenience to plaintiff that the permission under Section 20(b) CPC can be granted to such plaintiff to institute a suit where one of the defendants resides.
33. Paragraphs 7 and 8 of the judgment of learned Division Bench is extracted hereunder:- “7.As per sub-clause (b) the plaintiff can seek leave of the court to proceed against the non-resident defendant. Obviously the object of this provision is to save the plaintiff from being driven to different courts when the cause of action for the suit arises out of the same transaction and some of the defendants are located at one place while the other are spread over different parts of the country. Requiring a plaintiff to approach different courts in different part of the country for a cause of action arising from same transaction will be unfair and unjust. Besides harassment and multiplicity of proceedings, it may give rise to conflicting judgments. Therefore, prudence demands that such a suit be tried in one court and the defendants who are outside the jurisdiction of the court be sued with the leave of the court. In the present case the plaintiff had sought leave of the Civil Procedure.
8. The learned single Judge rejected the application of the plaintiff under Section 20(b), C.P.C. unfortunately overlooking the fact that various subclauses in section 20 are in the alternative or mutually exclusive. At the end of each clause word ‘or’ has been used in the section and are there to be read disjunctively which means that the clauses are in the alternative and all of them taken together need not be satisfied. It cannot be disputed that defendant no.1 is a necessary and proper party in the suit because the plaintiff has made allegations against defendant No.1 and has based part of its cause of action in the suit against it.”
34. Therefore, the issue raised by learned counsel for respondents/plaintiff is no more res integra and is covered by learned Division Bench’s judgment in Bank of Baroda (supra).
35. So far as the argument of the learned senior counsel regarding the non-application of mind and the submission that the order is bereft of any reasons is concerned, this Court is unable to agree with the same for the reason that, at the stage of Order 7 Rule 10 CPC, as also at the stage of considering the territorial jurisdiction of the suit in context of sub- Section (b) of Section 20 CPC, it is only the pleadings of the plaint which are necessary for it to have a subjective satisfaction that the said Court had competent territorial jurisdiction over the suit filed before it.
36. In that view of the matter, the non-providing of reasons may not, in all cases, entail the impugned orders being quashed and for remanding back for fresh hearing on that ground alone.
37. Though no doubt that the relief sought may be intrinsically intertwined with the happenings at Ashok Vihar, where the election had taken place, however, the mere fact that admittedly, defendant no.3 resides within the territorial jurisdiction of the Civil Court coupled with fact that the assertion contained in para-44 of the plaint, this Court also is of the opinion that the Civil Court which is having jurisdiction over it is at South East District at Saket, New Delhi.
38. In that view of the matter, the challenge to the impugned order fails and the petition is dismissed without any order as to costs.
TUSHAR RAO GEDELA, J. MARCH 3, 2023