MANU/SC/0710/2005

Equivalent Citation: 2005(35)AIC88, AIR2005SC4446, 2005(6)ALD1(SC), 2005 (61) ALR 647, 2006(1)ALT4(SC), 2005 (4) CCC 46 , (SCSuppl)2006(2)CHN160,
101(2006)CLT5(SC), 2005(5)CTC133, 2005(II)CLR(SC)688, 2005 INSC 444, [2006(3)JCR222(SC)], JT2005(8)SC561, 2006-2-LW85, 2005(4)RCR(Civil)260, 2006 100 RD394,
RLW2005(4)SC2459, 2005(7)SCALE533, (2005)7SCC791, [2005]Supp3SCR495

IN THE SUPREME COURT OF INDIA

Appeal (civil) 2726 of 2000

Decided On: 26.09.2005

Appellants: Harshad Chiman Lal Modi Vs. Respondent: DLF Universal and
Ors.

Hon'ble Judges/Coram:
Dr. Arijit Pasayat and C.K. Thakker, JJ.

Case Note:

Civil -Jurisdiction - Code of Civil Procedure, 1908 Order 6, Rule 17 and

Section 16 - Appellant entered into an agreement with respondent for
purchase of plot situated in Gurgaon - Head office of respondent was
also situated in Gurgaon - Despite regular payment of installments by
appellant, a contract was unilaterally cancelled by respondent - Suit
against same was filed in Delhi High Court which was later on
transferred to District Court, Delhi - Question which arose for
consideration was as to whether Delhi Civil court has jurisdiction to try
and entertain the present suit - District Court held in negative and
returned the plaint to appellant to be filed in appropriate case - Petition
filed against same in High Court also dismissed - Present appeal filed for
challenging the same - Held, as per Section 16 a suit can be instituted
where the property is situated - Since the suit was for specific

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performance of agreement and possession of immovable property
situated outside the jurisdiction of Delhi Court, the trial court was right
in holding that it had no jurisdiction - Appeal dismissed.

JUDGMENT

C.K. Thakker, J.

1 . This appeal is filed by the appellant against the order passed by the
Additional District Judge, Delhi on May 25, 1998 in Suit No. 1036 of 1994
and confirmed by the High Court of Delhi on November 01, 1999 in Civil
Revision Petition No. 506 of 1998 holding that Delhi Court has no
jurisdiction to try the suit and the plaint should be returned to the plaintiff for
presentation to proper court.

2 . To appreciate the controversy raised in this appeal, admitted and/or

undisputed facts may be noted. The appellant-original plaintiff entered into a
'plot buyer agreement' ('agreement' for short) with DLF Universal Limited,
respondent No. 1 - original defendant No. 1 - on August 14, 1985 for
purchase of a residential plot admeasuring 264 sq. mtrs. in Residential
Colony, DLF Qutub Enclave Complex, Gurgaon, Haryana. The agreement
was in the Standard Form Contract of the first respondent. According to the
appellant, the agreement was made in Delhi. The Head Office of respondent
No. 1 was situated in Delhi. Payment was to be made in Delhi. The plaintiff
paid an amount of Rs. 12,974/- (Rupees twelve thousand nine hundred
seventy four only) towards the first installment. It is the case of the appellant
that payment was made by him in installments as per the schedule to the
agreement. In spite of the payment of amount, the first respondent unilaterally
and illegally cancelled the agreement on April 04, 1988 under the excuse that

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the appellant had not paid dues towards construction of Modular House to
respondent No. 2- original defendant No. 2 - DLF Builders & Developers Pvt.
Ltd. The appellant objected to the illegal action of the first respondent and
sent a legal notice through an advocate calling upon the first respondent to
carry out his part of the contract but respondent No. 1 replied that the
agreement had been cancelled and nothing could be done in the matter. The
appellant, in the circumstances, was constrained to file Suit No. 3095 of 1988
on the Original Side of the High Court of Delhi for declaration, specific
performance of the agreement, for possession of the property and for
permanent injunction.

3. In the prayer clause, the plaintiff stated;

"Therefore, it is most respectfully prayed that in the facts and

circumstances stated above, this Hon'ble Court may graciously be
pleased to:--

a) pass a decree of declaration to the effect that there is a valid

and existing contract with regard to plot No. L-31/4, DLF
Qutab Enclave Complex, Gurgaon, Haryana, between the
plaintiff and the Defendant No. 1;

b) pass a decree to the effect that the Defendant No. 1 is bound

to abide by the contract, i.e. plot buyer agreement dated
14.8.85 and the unilateral rescinding/cancelling/withdrawing of
the contract by the Defendant No. 1 is bad and illegal;

c) pass a decree of specific performance directing the Defendant

No. 1 to perform its part of the contract by withdrawing the
letter dated 4.4.88 and further accepting the payments of the

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 due installments with regard to the plot from the plaintiff in
accordance with the terms and conditions of the agreement, and
execute a sale deed in favour of the plaintiff after the full
money is paid to the Defendant No. 1 as per Clause (22) of the
agreement;

d) pass a decree of permanent injunction restraining the

Defendants from allotting, selling, transferring, alienating in
any manner whatsoever the said plot No. L-31/4 DLF Qutub
Enclave Complex, Gurgaon (Haryana) to any person other than
the plaintiff and further restrain them from interfering in any
manner whatsoever with the possession or rights of the plaintiff
after the said plot has been handed over to the plaintiff;

e) pass a decree of delivery of possession against the Defendant

No. 1 directing him to hand over vacant and peaceful
possession of the plot No. L-31/4 DLF Qutub Enclave
Complex, Gurgaon (Haryana) to the plaintiff, or in the event,
the said plot is already allotted and handed over to some other
person by the Defendant No. 1, another plot in the same
Complex of equivalent area in identical location be handed
over to the plaintiff by the Defendant No. 1.

4. On December 09, 1988, a single Judge of the High Court of Delhi granted
interim injunction in favour of the plaintiff. A common written statement was
filed by both the defendants on March 29, 1989 controverting the claim of the
plaintiff on merits. So far as jurisdiction of the court was concerned, it was
clearly admitted and in paragraphs 18 and 19 it was stated that "jurisdiction of
this Hon'ble Court is admitted". In view of increase in pecuniary jurisdiction of
the District Court, Delhi, the suit came to be transferred from High Court of

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Delhi to District Court, Delhi on July 12, 1993 and it was re-numbered as Suit
No. 1036 of 1994. On February 17, 1997, the trial court framed issues which
did not include issue as to the jurisdiction of the court obviously because
jurisdiction of the court was not disputed by the defendants. As late as on
August 22, 1997, i.e. after more than eight years of the filing of the written
statement, the defendants filed an application under Order 6, Rule 17 of the
Code of Civil Procedure, 1908 (hereinafter referred to as the "Code") seeking
amendment in the written statement by raising an objection as to jurisdiction
of Delhi Court to entertain the suit. It was stated that the suit was for recovery
of immovable property situated in Gurgaon District. Under Section 16 of the
Code, such suit for recovery of property could only be instituted within the
local limits of whose jurisdiction the property was situated. Since the property
was in Gurgaon, Delhi Court had no jurisdiction in the matter. On January 16,
1998, the application was allowed and the written statement was permitted to
be amended. The amended written statement was filed which also contained a
statement that the jurisdiction of the court was "admitted". On the basis of the
amendment of written statement, however, the learned Additional District
Judge framed an additional issue as under :

"Whether Delhi Civil court has jurisdiction to try and entertain the
present suit: OPD"?

5. After hearing the parties, the trial court by an order dated May 25, 1998
upheld the contention of the defendants and ruled that Delhi Court had no
jurisdiction to try the suit. The plaint was, therefore, ordered to be returned to
the plaintiff for presentation to the proper court.

The Court stated;

"In this view of the matter, I have no hesitation in coming to the

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 conclusion that the suit falls within the ambit of Section 16 of the
Code of Civil Procedure and the proviso thereto has no application on
the facts of the present case.

In view of my above discussion, it is held that the Delhi Civil Court has
no jurisdiction to try the present suit and as such, the Plaint in the
present suit is returned to the Plaintiff for presentation in the Proper
Court. Parties through their counsel are directed to present in the
proper Court on 5.6.1998."

6. Being aggrieved by the said order, the appellant approached the High Court
by filing Civil Revision Petition No. 506 of 1998 which also came to be
dismissed. Against the said order, the appellant has approached this Court.
Notice was issued on December 06, 1999 and parties were directed to
maintain status quo. On April 17, 2000, leave was granted, operation of the
judgment was stayed and the Additional District Judge, Tis Hazari, Delhi, was
allowed to proceed with the suit but it was stated that he would not deliver
judgment "until further orders". Status quo granted earlier was ordered to be
continued. The appeal has now come up for final hearing.

7. We have heard learned counsel for the parties.

8 . Ms. Indu Malhotra, learned counsel for the appellant contended that the
courts below have committed an error of law as well as of jurisdiction in
allowing the amendment in the written statement and in holding that Delhi
Court had no jurisdiction. She submitted that the defendants were having their
Head Office at Delhi, the agreement had been entered into at Delhi, payment
was to be made and in fact made at Delhi, breach of agreement took place at
Delhi and hence Delhi Court had jurisdiction to entertain the suit and the
plaintiff could have instituted the suit in Delhi Court. It was also submitted

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that the parties had agreed that the Delhi Court alone had jurisdiction in all
matters arising out of the transaction. It was urged that in the facts and
circumstances of the case, the courts below should not have exercised
discretionary jurisdiction in favour of the party who had filed a written
statement in which jurisdiction of Delhi Court had been expressly admitted.
The written statement was filed in 1989 but an amendment application was
moved after more than eight years. Serious prejudice had been caused to the
plaintiff due to delay on the part of the defendants. When the defendants had
waived the objection as to jurisdiction by specifically admitting the
jurisdiction of Delhi Court, amendment ought not to have been allowed by the
trial court nor such order could have been confirmed by the High Court. The
learned counsel also submitted that even after the amendment was allowed
and amended written statement was filed, in the amended reply also, the
defendants had stated that the jurisdiction of the court was "admitted".

9. The counsel submitted that even on merits, no case had been made out by
the defendants. At the most, it was a case of accrual of cause of action in more
than one court. As Clause 28 of the agreement specifically provided that the
transaction would be subject to the jurisdiction of Delhi Court, institution of
suit in Delhi Court by the plaintiff could not have been objected to and no
order could have been passed by the trial court holding that it had no
jurisdiction and the plaint was required to be returned to the plaintiff for
presentation to the proper court.

Clause 28 of the agreement reads thus;

"The Delhi High Court or Courts subordinate to it, alone shall have
jurisdiction in all matters arising out of touching and/or concerning this
transaction."

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10. Finally, it was submitted that at the time of granting leave and admitting
appeal, this Court permitted the trial court to proceed with the matter.
Accordingly, the evidence was led by the parties and the trial is concluded. In
view of the order of this Court, the trial court could not deliver the judgment.
Considering the fact that the agreement was executed in August, 1985 and
more than two decades have passed, this Court may issue necessary direction
to the trial court to deliver judgment.

11. Mr. Rohatgi, Senior Advocate appearing for the respondents, on the other
hand, supported the order passed by the trial court and confirmed by the High
Court. He submitted that the suit relates to specific performance of agreement
relating to immovable property. In accordance with the provisions of Section
16 of the Code, such suit can be instituted where the immovable property is
situate. ("Section 16. Suits to be instituted where subject-matter situate.--
Subject to the pecuniary or other limitations prescribed by any law, suits--(a)
for the recovery of immovable property with or without rent or profits, (b) for
the partition of immovable property, (c) for foreclosure, sale or redemption in
the case of a mortgage or change upon immovable property, (d) for the
determination of any other right to or interest in immovable property, (e) for
compensation for wrong to immovable property, (f) for the recovery of
movable property actually under distraint or attachment, Shall be instituted in
the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable property held by or on behalf of the defendant may, where the
relief sought can be entirely obtained through his personal obedience, be
instituted either in the Court within the local limits of whose jurisdiction the
property is situate, or in the Court within the local limits of whose jurisdiction
the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.") Admittedly the property is situate in Gurgaon

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(Haryana). Delhi Court, therefore, has no jurisdiction to entertain the suit
which is for specific performance of agreement of purchase of a plot -
immovable property - situate outside Delhi. According to the counsel, even if
it was not contended by the defendants that Delhi Court had no jurisdiction or
there was an admission that Delhi Court had jurisdiction, it was totally
irrelevant and immaterial. If the court had no jurisdiction, parties by consent
cannot confer jurisdiction on it. The counsel also submitted that this is not a
case in which two or more courts have jurisdiction and parties have agreed to
jurisdiction of one court. According to Mr. Rohatgi, Section 20 of the Code
would apply where two courts have jurisdiction and the parties agree as to
jurisdiction of one such courts by restricting their right to that forum instead
of the other. ("Section 20. Other suits to be instituted where defendants
reside or cause of action arises.--Subject to the limitations aforesaid, every
suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendant where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain; or (b) any of the defendants,
where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works
for gain, provided that in such case either the leave of the Court is given, or
the defendants who do not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesce in such institute; or (c) the cause of action,
wholly or in part, arises.") When Delhi Court had no jurisdiction whatsoever,
no reliance could be placed either on Section 20 of the Code or on Clause 28
of the agreement. The order passed by the trial court and confirmed by the
High Court is, therefore, legal and lawful and the appeal deserves to be
dismissed, submitted the counsel.

12. Having heard learned counsel for the parties and having considered the

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relevant provisions of the Code as also the decisions cited before us, in our
opinion, the order passed by the trial court and confirmed by the High Court
deserves no interference. As stated above, it is an admitted fact that the suit
relates to the recovery of immovable property, a plot admeasuring 264 sq.
mtrs. in the Residential Colony - DLF Qutub Enclave Complex, Gurgaon. It is
not in dispute by and between the parties that the property is situate in
Haryana. It is no doubt true that the defendants are having their Head Office at
Delhi. It is also true that the agreement was entered into between the parties at
Delhi. It also cannot be denied that the payment was to be made at Delhi and
some installments were also paid at Delhi. The pertinent and material
question, however, is in which court a suit for specific performance of
agreement relating to immovable property would lie?

13. Now, Sections 15 to 20 of the Code contain detailed provisions relating to

jurisdiction of courts. They regulate forum for institution of suits. They deal
with the matters of domestic concern and provide for the multitude of suits
which can be brought in different courts. Section 15 requires the suitor to
institute a suit in the court of the lowest grade competent to try it. Section 16
enacts that the suits for recovery of immovable property, or for partition of
immovable property, or for foreclosure, sale or redemption of mortgage
property, or for determination of any other right or interest in immovable
property, or for compensation for wrong to immovable property shall be
instituted in the court within the local limits of whose jurisdiction the
property is situate. Proviso to Section 16 declares that where the relief sought
can be obtained through the personal obedience of the defendant, the suit can
be instituted either in the court within whose jurisdiction the property is
situate or in the court where the defendant actually or voluntarily resides, or
carries on business, or personally works for gain. Section 17 supplements
Section 16 and is virtually another proviso to that section. It deals with those

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cases where immovable property is situate within the jurisdiction of different
courts. Section 18 applies where local limits of jurisdiction of different courts
is uncertain. Section 19 is a special provision and applies to suits for
compensation for wrongs to a person or to movable property. Section 20 is a
residuary section and covers all those cases not dealt with or covered by
Sections 15 to 19.

14. Section 16 thus recognizes a well established principle that actions against
res or property should be brought in the forum where such res is situate. A
court within whose territorial jurisdiction the property is not situate has no
power to deal with and decide the rights or interests in such property. In other
words, a court has no jurisdiction over a dispute in which it cannot give an
effective judgment. Proviso to Section 16, no doubt, states that though the
court cannot, in case of immovable property situate beyond jurisdiction, grant
a relief in rem still it can entertain a suit where relief sought can be obtained
through the personal obedience of the defendant.

The proviso is based on well known maxim "equity acts in personam,

recognized by Chancery Courts in England. Equity Courts had jurisdiction to
entertain certain suits respecting immovable properties situated abroad
through personal obedience of the defendant. The principle on which the
maxim was based was that courts could grant relief in suits respecting
immovable property situate abroad by enforcing their judgments by process in
personam, i.e. by arrest of defendant or by attachment of his property.

15. I n Ewing v. Ewing, (1883) 9 AC 34 : 53 LJ Ch 435, Lord Selborne

observed :

"The Courts of Equity in England are, and always have been, courts of
conscience operating in personam and not in rem; and in the exercise

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 of this personal jurisdiction they have always been accustomed to
compel the performance of contracts in trusts as to subjects which
were not either locally or ratione domicilii within their jurisdiction.
They have done so, as to land, in Scotland, in Ireland, in the Colonies,
in foreign countries."

16. The proviso is thus an exception to the main part of the section which in
our considered opinion, cannot be interpreted or construed to enlarge the
scope of the principal provision. It would apply only if the suit falls within
one of the categories specified in the main part of the section and the relief
sought could entirely be obtained by personal obedience of the defendant.

17. In the instant case, the proviso has no application. The relief sought by the
plaintiff is for specific performance of agreement respecting immovable
property by directing the defendant No. 1 to execute sale-deed in favour of
the plaintiff and to deliver possession to him. The trial court was, therefore,
right in holding that the suit was covered by Clause (d) of Section 16 of the
Code and the proviso had no application.

18. In our opinion, the submission of the learned counsel for the appellant
that the parties had agreed that Delhi Court alone had jurisdiction in the
matters arising out of the transaction has also no force. Such a provision, in
our opinion, would apply to those cases where two or more courts have
jurisdiction to entertain a suit and the parties have agreed to submit to the
jurisdiction of one court.

19. Plain reading of Section 20 of the Code leaves no room of doubt that it is
a residuary provision and covers those cases not falling within the limitations
of Sections 15 to 19. The opening words of the section "Subject to the
limitations aforesaid" are significant and make it abundantly clear that the

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section takes within its sweep all personal actions. A suit falling under Section
20 thus may be instituted in a court within whose jurisdiction the defendant
resides, or carries on business, or personally works for gain or cause of action
wholly or partly arises.

20. It is, no doubt true, as submitted by Ms. Malhotra that where two or more
courts have jurisdiction to entertain a suit, parties may by agreement submit to
the jurisdiction of one court to the exclusion of the other court or courts.
Such agreement is not hit by Section 28 of the Contract Act, 1872, nor such a
contract can be said to be against public policy. It is legal, valid and
enforceable.

21. Before more than thirty years, such question came up for consideration
before this Court in Hakam Singh v. Gamon (India)
Ltd. MANU/SC/0001/1971 :, [1971]3SCR314 . It was the first leading
decision of this Court on the point. There, a contract was entered into by the
parties for construction of work. An agreement provided that notwithstanding
where the work was to be executed, the contract 'shall be deemed to have
been entered into at Bombay' and Bombay Court 'alone shall have jurisdiction
to adjudicate' the dispute between the parties. The question before this Court
was whether the court at Bombay alone had jurisdiction to resolve such
dispute.

22. Upholding the contention and considering the provisions of the Code as
also of the Contract Act, this Court stated :

"By Clause 13 of the agreement it was expressly stipulated between

the parties that the contract shall be deemed to have been entered into
by the parties concerned in the city of Bombay. In any event the
respondents have their principal office in Bombay and they were liable

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 in respect of a cause of action arising under the terms of the tender to
be sued in the courts of Bombay. It is not open to the parties by
agreement to confer by their agreement jurisdiction on a court
which it does not possess under the Code. But where two courts or
more have under the Code of Civil Procedure jurisdiction to try a
suit or proceeding on agreement between the parties that the dispute
between them shall be tried in one of such courts is not contrary to
public policy. Such an agreement does not contravene Section 28 of
the Contract Act."

(emphasis supplied)

23. Hakam Singh was followed and principle laid down therein reiterated in
several cases thereafter. (See Globe Transport Corporation v. Triveni
Engineering Works and Anr. MANU/SC/0011/1983 : , (1983)4SCC707 ,
A.B.C. Laminart (P) Ltd. and Anr. v. A.P. Agency, Salem,
MANU/SC/0406/1989, Patel Roadways Ltd., Bombay v. Prasad Trading
Co. MANU/SC/0280/1992 :, [1991]3SCR391 , R.S.D.V. Finance Co. (P)
Ltd. v. Shree Vallabh Glass Works Ltd. MANU/SC/0320/1993 : ,
AIR1993SC2094 , Angile Insulations v. Devy Ashmore India Ltd. and
Anr. MANU/SC/0338/1995 : , [1995]3SCR443 , Shriram City Union
Finance Corporation Ltd. v. Rama Mishra MANU/SC/2500/2000 :,
(2002)9SCC613 , New Moga Transport Co. v. United India Insurance Co.
Ltd. and Ors. MANU/SC/0398/2004 : , AIR2004SC2154 .

24. The question, however, is whether Delhi Court has jurisdiction in the
matter. If the answer to that question is in the affirmative, the contention of
the plaintiff must be upheld that since Delhi Court has also jurisdiction to
entertain the suit and parties by an agreement had submitted to the jurisdiction
of that court, the case is covered by Section 20 of the Code and in view of the

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choice of forum, the plaintiff can be compelled to approach that court as per
the agreement even if other court has jurisdiction. If, on the other hand, the
contention of the defendant is accepted and it is held that the case is covered
by Section 16 of the Code and the proviso to Section 16 has no application,
nor Section 20 would apply as a residuary clause and Delhi Court has no
jurisdiction in the matter, the order impugned in the present appeal cannot be
said to be contrary to law. As we have already indicated, the suit relates to
specific performance of an agreement of immovable property and for
possession of plot. It is, therefore, covered by the main part of Section 16.
Neither proviso to Section 16 would get attracted nor Section 20 (residuary
provision) would apply and hence Delhi Court lacks inherent jurisdiction to
entertain, deal with and decide the cause.

25. The High Court considered the submission of the plaintiff that Delhi Court
had jurisdiction to entertain the suit but negatived it. The Court, after referring
to various decisions cited at the Bar, concluded;

"From the aforesaid principles laid down by the Supreme Court it is

abundantly clear that where the parties to a contract agreed to vest
jurisdiction to a particular Court although cause of action has arisen
within the jurisdiction of different Courts, including that particular
Court, the same cannot be said to be void or to be against the public
policy. It was also made clear in the said decision that if however a
particular Court does not have any jurisdiction to deal with the matter
and no part of cause of action has arisen within the jurisdiction of that
Court, the parties by their consent and mutual agreement cannot vest
jurisdiction in the said Court. Therefore, a clause vesting jurisdiction
on a Court which otherwise does not have jurisdiction to decide the
matter, would be void as being against the public policy."

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26. We are in agreement with the above observations and hold that they lay
down correct proposition of law.

27. Ms. Malhotra, then contended that Section 21 of the Code, requires that
the objection to the jurisdiction must be taken by the party at the earliest
possible opportunity and in any case where the issues are settled at or before
settlement of such issues. In the instant case, the suit was filed by the plaintiff
in 1988 and written statement was filed by the defendants in 1989 wherein
jurisdiction of the court was 'admitted'. On the basis of the pleadings of the
parties, issues were framed by the court in February, 1997. In view of the
admission of jurisdiction of court, no issue as to jurisdiction of the court was
framed. It was only in 1998 that an application for amendment of written
statement was filed raising a plea as to absence of jurisdiction of the court.
Both the courts were wholly wrong in allowing the amendment and in
ignoring Section 21 of the Code. Our attention in this connection was invited
by the learned counsel to Hira Lal v. Kali Nath MANU/SC/0041/1961 :,
[1962]2SCR747 and Bahrein Petroleum Co. v.
Pappu MANU/SC/0012/1965 : , (1966)IILLJ144SC .

28. 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 a 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

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limitation 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.

29. In Halsbury's Laws of England, (4th edn.), Reissue, Vol. 10; para 317; it
is stated;

317. Consent and waiver. Where, by reason of any limitation

imposed by statute, charter or commission, a court is without
jurisdiction to entertain any particular claim or matter, neither the
acquiescence nor the express consent of the parties can confer
jurisdiction upon the court, nor can consent give a court jurisdiction if
a condition which goes to the jurisdiction has not been performed or
fulfilled. Where the court has jurisdiction over the particular subject
matter of the claim or the particular parties and the only objection is
whether, in the circumstances of the case, the court ought to exercise
jurisdiction, the parties may agree to give jurisdiction in their particular
case; or a defendant by entering an appearance without protest, or by
taking steps in the proceedings, may waive his right to object to the
court taking cognizance of the proceedings. No appearance or answer,
however, can give jurisdiction to a limited court, nor can a private
individual impose on a judge the jurisdiction or duty to adjudicate on a
matter. A statute limiting the jurisdiction of a court may contain
provisions enabling the parties to extend the jurisdiction by consent."

30. In Bahrein Petroleum Co., this Court also held that neither consent nor
waiver nor acquiescence can confer jurisdiction upon a court, otherwise
incompetent to try the suit. It is well-settled and needs no authority that
'where a court takes upon itself to exercise a jurisdiction it does not possess,
its decision amounts to nothing.' A decree passed by a court having no
jurisdiction is non-est and its validity can be set up whenever it is sought to be

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enforced as a foundation for a right, even at the stage of execution or in
collateral proceedings. A decree passed by a court without jurisdiction is a
coram non judice.

3 1 . I n Kiran Singh v. Chaman Paswan MANU/SC/0116/1954 :,

[1955]1SCR117 , this Court declared;

"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 it is sought to be enforced or relied upon, even at
the stage of execution and even in collateral proceedings. A defect of
jurisdiction ...
strikes at the very authority of the court to pass any decree, and such
a defect cannot be cured even by consent of parties."

(emphasis supplied)

3 2 . The case on hand relates to specific performance of a contract and

possession of immovable property. Section 16 deals with such cases and
jurisdiction of competent court where such suits can be instituted. Under the
said provision, a suit can be instituted where the property is situate. No court
other than the court where the property is situate can entertain such suit.
Hence, even if there is an agreement between the parties to the contract, it has
no effect and cannot be enforced.

33. In Setrucharlu v. Maharaja of Jeypore, 46 IA 151 : AIR 1919 PC 150, a

suit was instituted in subordinate court for possession of mortgage property
partly situated in Vizagapatam and partly in a Schedule District to which the
provisions of the Code did not apply. No objection as to jurisdiction of the
court was taken by the defendant and the decree was passed. In appeal,

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however, such objection was taken by the defendant. Relying on Section 21 of
the Code, the High Court overruled the objection. The defendant approached
the Privy Council. Upholding the contention and partly reversing the decree,
the Judicial Committee of the Privy Council stated;

"The learned Judges of the Court of Appeal thought that the matter
was met by Section 21 of the Code, which provides that no objection
as to the place of suing shall be allowed by any appellate court unless
the objection was taken in the court of First Instance, which in this
case had admittedly not been done. Their Lordships cannot agree with
this view. This is not an objection as to the place of suing; it is an
objection going to the nullity of the order on the ground of want of
jurisdiction."

(emphasis supplied)

3 4 . I n New Mofussil Co. Ltd. and Anr. v. Shankerlal Narayandas

Mundade MANU/MH/0141/1940 :, AIR1941Bom247 , almost a similar
question came up for consideration before the High Court of Bombay. In that
case, a suit for specific performance of contract and possession of immovable
property situated at Dhulia was filed in the Court of First Class Subordinate
Judge, Dhulia against defendant No. 1 - Company in liquidation. The
registered office of the Company was in Bombay and the agreement was
finally concluded in Bombay. It was, therefore, contended that Dhulia Court
had no jurisdiction to try the suit. It was, however, held by the High Court
that the case was covered by Clause (d) of Section 16 of the Code, the Proviso
had no application and since the property was situated at Dhulia, Subordinate
Judge, Dhulia had jurisdiction to entertain and try the suit. (See also Anand
Bazar Patrika Ltd. v. Biswanath Prasad MANU/BH/0015/1986 :,
AIR1986Pat57 )

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35. In the instant case, Delhi Court has no jurisdiction since the property is
not situate within the jurisdiction of that court. The trial court was, therefore,
right in passing an order returning the plaint to the plaintiff for presentation to
the proper court. Hence, even though the plaintiff is right in submitting that
the defendants had agreed to the jurisdiction of Delhi Court and in the
original written statement, they had admitted that Delhi Court had jurisdiction
and even after the amendment in the written statement, the paragraph relating
to jurisdiction had remained as it was, i.e. Delhi Court had jurisdiction, it
cannot take away the right of the defendants to challenge the jurisdiction of
the court nor it can confer jurisdiction on Delhi Court, which it did not
possess. Since the suit was for specific performance of agreement and
possession of immovable property situated outside the jurisdiction of Delhi
Court, the trial court was right in holding that it had no jurisdiction.

36. The learned counsel for the appellant drew out attention to Rule 32 of
Order XXI of the Code which relates to execution. It, however, presupposes a
decree passed in accordance with law. Only thereafter such decree can be
executed in the manner laid down in Rules 32, 34 or 35 of Order XXI. Those
provisions, therefore, have no relevance to the question raised in the present
proceedings.

37. For the foregoing reasons, in our opinion, no case has been made out by
the appellant against the order passed by the trial court and confirmed by the
High Court. The appeal, therefore, deserves to be dismissed and is accordingly
dismissed. In the facts and circumstances of the case, however, there shall be
no order as to costs.

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