1. The appellants are legal representatives of the original plaintiff who died during the pendency of this appeal. He had filed a suit against the defendants respondents for recovery of Rs 130.00 on account of compensation for illegal seizure of his cattle by the defendants on 23rd August 1958.
2. The allegation was that the plaintiff's cattle were grazing in an uncultivated portion of field Khasra No. 50, area 6.98 acres of Village Singori, which was owned by the plaintiff , but the defendants, with a view to cause wrongful loss and damage to the plaintiff, trespassed into his field and drove away 17 head of cattle and impounded them in the cattle-pound at mouza Parseoni. These cattle had to be released by paying poundage fee Rs. 74-4-0 and an additional amount of Rs. 50 was claimed as loss sustained because the animals were not available for cultivation for a day and Rs. 5-12-0 were claimed on account of the value of 12 seers of milk which was lost to the plaintiff. This suit was brought in the in the Civil Court at Nagpur where only one of the defendant i.e. defendant No. 1 was shown to have resided. Even the plaint makes it clear that the defendants Nos. 2 and 3 were residents of Singori tahsil Ramtek, district Nagpur.
3. The defendants denied the claim of the plaintiff. According to them, the cattle were in that part of the field which was in actual possession of the defendant No. 1 and his brothers and were grazing and damaging their crops, and therefore, the defendants seized the plaintiff cattle and impounded them in the cattle-pound. The written statement shows that the only seizure was the defendant No.3 who has seized that cattle. The alleged trespass by the three defendants was denied in the joint written-statement it was also their case that the defendant No. 1 and his brothers owned the entire khasra No. 50 and they had obtained a decree for possession of northern half of the said Khasra in Civil Suit No. 31 A of 1956, decided on 12-9-1957, by the Fourth Additional Judge to First Civil Judge, Nagpur at Ramtek against one Gulabrao, and according to them, the southern half was also in their possession. In paragraph no. 5 of the Written-statement, a specific plea with regard to the jurisdiction of the Nagpur Court was taken and it was stated that the plaint did not disclose any cause of action within the jurisdiction of the Court and the Court had no jurisdiction to try the suit. The defendants pleaded that the alleged impounding the cattle and their alleged release took place on the plaintiff's own showing beyond the jurisdiction of the Court. It was further stated that the defendants Nos. 2 and 3 are also admittedly living and working for gain beyond the jurisdiction of the Court and thus the suit was not tribal by the Court. A specific objection to the jurisdiction of the Court was thus taken by the defendants in the written-statement itself . When the parties went to trial, the defendants filed an application under O. 14, R. 2, Civil Procedure Code, requesting the Court to first decide the question of jurisdiction and to postpone the recording of evidence till the decision on the issue of jurisdiction. It may be stated that on the allegations in the plaint, the defendant No. 1 was the only person who was staying within the jurisdiction of Nagpur Court and the two other defendants were staying within the jurisdiction of Ramtek Court. The plaint does not attribute any specific tortuous act to the defendant No. 1 but an omnibus statement that the defendants seized the plaintiff's bullocks has been made in the plaint. That statement has been denied by all the defendants and the fact of seizure of the bullocks is admitted only so far as the defendant No. 3 is concerned, who resides out of the jurisdiction of Nagpur Court. The record also does not disclose and it is an admitted fact I the trial Court no leave of the Court, as contemplated by Section 20(b) of the Civil Procedure Code, was sought when the suit was instituted.
4. On the applications of the defendants requesting for a decision on the question of jurisdiction, the trial Court referred to the provisions of Section 20, Civil Procedure Code, and found that the defendants have acquiesced in he filing of the suit at Nagpur instead of at Ramtek, as, according to the learned judge, otherwise they would have raised an objection to it.
5. The learned judge found that the application was belated and certain steps taken by the defendants in the course of trial, like asking for better particulars etc., were relied upon to show that the defendants Nos. 2 and 3 had acquiesced in the jurisdiction of the Court. The trial Court then proceeded to record evidence and decided the suit on 12th March 1960. The suit was however, dismissed by the trial Court. The trial Court held that the suit was barred by the provisions of Cattle Trespass Act, it was barred under S. 9 of the Civil Procedure Code. On the question of damages, the trial Court found that the plaintiff had failed to prove the damages. The trial Court also went into the question of title to the field and held that the plaintiff has not proved that he was Bhumiswami of the southern half of Khasra No. 50 which is a disputed portion of the field and the plaintiff has also not proved that he was in possession of the southern portion.
6. Against this decision the plaintiff appealed. The appeal was filed on 6th July 1960 and came up for hearing before the lower appellate Court on 4-7-1961. The order-sheets show that on that date the appeal was partly heard. On the next date, that is, 5-7-1961, the plaintiff-appellant field an application before the lower appellate Court purporting to be under S. 151 read with Section 20 of the Civil Procedure Code. In this application the plaintiff stated that the order of the trial Court dated 26-2-1960 holding that the Court has jurisdiction to try the suit should be construed as an order granting leave as contemplated by Section 20, Clause (b) of the Civil Procedure Code and the application further stated that 'if however, this Court is pleased to hold that the order does not amount to a leave, it is submitted that this Court as an appellate authority has jurisdiction to grant the same'. The prayer clause in significant in this application, which states that the plaintiff prays that leave be granted to the plaintiff. If such leave is necessary.
7. On this application the lower appellate Court passed an order on 12th August 1961 refusing to construe the order of the trial Court as an order granting leave and the lower appellate Court held that the plaintiff-appellant should have made the application before the trial Court and such a prayer. made for the first time in appeal, could not be granted in the absence of a prayer to that effect before the trial Court itself. On the same date, the appeal was also disposed of and though the lower appellate Court found that the Nagpur Court had no jurisdiction to try the suit, it proceeded to decide the matter on merits also and found that the plaintiff was entitled only to damages of Rupees 74-4-0. The plaintiff was held to be in juridical possession of the southern half of survey number 50 on 23-8-1958. However, in view of he finding that the suit was not maintainable, in the absence of leave, the application of the plaintiff was rejected. The appeal was also dismissed. The plaintiff then field this second appeal.
8. It was argued by Mr. R. A. Dubey, the learned counsel for the appellants, that the trial Court was justified in holding that the defendants Nos. 2 and 3 had acquiesced in the jurisdiction of the Nagpur Court and in any case the order of the trial Court holding that there was acquiescence should be construed as an order granting leave under Section 20, Clause (b). Civil Procedure Code. In order to lend support to the argument that the finding of acquiescence given by the trial Court was proper, the learned council contended that no specific plea in the written-statement was raised that the plaintiff had failed to obtain leave of the Court which was necessary and that really there was no challenge to the jurisdiction of the Court on the ground that leave was not obtained before the institution of the suit. The learned counsel; further contended that the lower appellate Court was not justified in rejecting the application made before it on the ground that the application should have been made first to the trial Court. By way of abundant precaution, according to the learned counsel, the appellant had also filed an application in this Court seeking leave under Section 20(b) of the Civil Procedure Code. On these grounds, according to the learned counsel, that part of the decree of the lower appellate Court which holds that the trial by the Nagpur Court was without jurisdiction should be set aside, and according to him, this appeal was restricted only to the challenge to he finding regarding want of jurisdiction, as on merits the finding was in favour of the plaintiff that he was entitled to damages of Rs. 74-4-0.
9. It is difficult for me to accept the argument of the ,earned counsel for the appellants that the defendants had not challenged the jurisdiction of the trial Court. I have referred above in extenso to the allegations made by the defendants in the written-statement in which they have specifically raised a plea that the Nagpur Court had no jurisdiction. It cannot be forgotten that the written-statement was of all the defendants. In terms it was stated in the written-statement that no cause of action within the jurisdiction of the Nagpur Court is disclosed by the plaintiff. It was also specifically stated that the defendants Nos. 2 and 3 resided beyond the jurisdiction of the Nagpur Court, and therefore, the Nagpur Court had no jurisdiction. It is difficult to understand what other provisions than the provisions of Section 20, Clause (b), Civil Procedure Code, were basis for this plea of want of jurisdiction. It was really not necessary for the defendants to state in so many words in the written-statement that the Nagpur Court had no jurisdiction, because no leave, as contemplated by Section 20(b), Civil Procedure Code, was obtained by the plaintiff. It where some of the defendants reside beyond the jurisdiction of a Court, and if before the institution of such a suit leave is necessary to obtain and the suit is filed without such leave being obtained, the objection of the defendants are staying beyond the jurisdiction of the Court, and therefore, the Court has no jurisdiction, should be sufficient to give notice to the plaintiff that the jurisdiction of the Court is being challenged because he provisions of Section 20 Clause (b), Civil Procedure Code, have not been compiled with.
10. The argument of the learned counsel that the order if the trial Court dated 26th February 1960 must be construed as an order granting leave runs counter to the provisions of Section 20 Clause (b), Civil Procedure Code. Section 20, Clause (b), Civil Procedure Code reads as follows:
'20. Subject to the-limitations aforesaid, every suit shall be instituted in a court within he local limits of whose jurisdiction-
(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 institution'.
This section specifies the Court in which a suit is to be instituted, and normally a suit is to be instituted in he Court within the local limits of which a defendant or each of the defendants, were they are more than one, actually and voluntarily resides or carries on business, or personally works for gain at the time of the commencement of the suit. Clause (b) of Section 20, Civil Procedure Code, contemplates a case where the defendants to a suit are more than one and any of them resides at the time of the commencement of the suit, or carries on business or works for gain resides within the jurisdiction of a Court and others do not. But in such a case, the suit to which non-resident defendants are parties can only be instituted either with the leave of the Court or if the defendants, who do no reside, or carry on business, within the jurisdiction of the Court acquiesce in such institution. Thus, before a suit can be said to have properly instituted in a Court of competent jurisdiction against the persons who do not reside within the jurisdiction of that Court, the plaintiff must either ask leave of the Court, or must satisfy the Court that such defendants have acquiesced in the institution of the suit conditions is not satisfied, the Court cannot be said to have jurisdiction to entertain the suit. Section 20, Civil Procedure Code, contemplates that leave must be distinctly and specifically sought and granted. If there is an order granting such a leave, which if course must be passed after hearing such defendants as may appear, then there can be no challenge to the territorial jurisdiction of the Court. But where such leave is not obtained, in a given case it may be that the defendants, who had a right to object, have acquiesced in jurisdiction and if such acquiesced is shown he trial of the suit will no be vitiated for want of jurisdiction. It is one thing to ask for leave and to obtain it which is a duty cast on the plaintiff and it is another to show that the defendants have acquiesced in jurisdiction. The second one has to be inferred from the conduct of the defendants. It is, therefore, difficult to appreciate how acquiescence which is sought to be shown by the plaintiff in this case could be relied upon by him to say that an order holding that there was acquiescence should be construed as an order granting leave by the Court. As stated above, the two conditions necessary to invest the Court with jurisdiction are entirely distinct and separate. It is, therefore, not possible to accept the contention of the learned counsel that the order dated 26-2-1960 must be construed as an order granting under Section 20, Clause (b), Civil P. C.
11. The further contention raised by the learned counsel for the appellants that the defendants have acquiesced in the jurisdiction of the Court also cannot be sustained. The trial Court seems to have been influenced by the fact that it is really the defendant No. 1 who is objecting to the jurisdiction of the Court and not the defendants Nos. 2 and 3, who are residents of Singori, tahsil Ramtek. That appears to be the substance of the order in paragraph No. 6 of the order dated 26-2-1960. Now, the written-statement raised an objection to jurisdiction in very clear terms. It is a written-statement by all the defendants. The application that this issue must first be decided is also an application signed by all the defendants. There is, therefore, no basis for the assumption made by the learned Judge that the objection to jurisdiction is raised. Only by the defendant No. 1 and if in the clearest possible terms an objection to jurisdiction as taken in the written-statement and it was pursued by requesting the Court to try the issue regarding jurisdiction as a preliminary issue it is difficult to understand how this conduct can be taken do amount to acquiescence. Atleast till the stage of issues the defendants were bound to wait to press their objection to jurisdiction, because, normally unless an issue on the question of jurisdiction is framed, it would not have been proper for the defendants to ask the Court to decide that issue, and if till that stage the defendants took part in the proceedings in the suit that could certainly not amount to acquiescence. If the defendants had not taken any part and the issue would have been decided against them, they would have been faced with serious consequence and would have been prejudiced in the trial of the suit. The mere fact, therefore, that some applications were made in the trial Court by the defendants could not, therefore, properly lead to the conclusion that they had acquiesced in the jurisdiction of the Court.
12. It is true that the order of the lower appellate Court does not disclose that he has considered all these circumstances while setting aside the order of the trial Court dated 26-2-1960, but the conclusion which he has arrived at, that the defendants cannot be said to have acquiesced in the jurisdiction of the trial Court -was justified, for the reasons which I have stated above
13. As I have held that no leave of the Court as required by Section 20, Civil Procedure Code, was sought by the plaintiff in the trial Court, the next question which has to be decided is whether he was entitled to make a prayer for such a leave being granted before the lower appellate Court.
14. The plaintiff had filed an application seeking such leave before the lower appellate court. The contention of the respondents is that leave must be sought only in the trial Court and that the appeal Court has no power to grant such leave. It is stated in the application that leave is not necessary and it may be lower appellate court has rejected this has been rejected is that the application should have been made to the trial Court. Now though I do not agree with this reasoning of the learned Judge of the lower appellate Court, I agree with ultimate conclusion which he has reached that the plaintiff is not entitled to leave under Section 20, Clause (b), Civil P. C. In Narayanan Shankar V. Secretary State of India in council, ILR (1906) 30 Bom 570, a Division Bench of this Court while considering Section 17, Clause (c), of the Civil Procedure Code, 1882, which was analogous to section 20, Clause (b) Civil Procedure Code, 1908, held that in a suit filed against some defendants who reside beyond the jurisdiction of the Court in which the suit is filed leave can be subsequently granted to the plaintiff. The contention was that leave could not be granted after the institution of the suit and this Court held that provision relating to acquiescence made it clear that a defect at the institution can be subsequently cured, and therefore, there was no necessity for reading the words of the provision in such a way as to say that the leave of the Court must have been firs given. This decision is binding on me. If the propriety of an order granting or rejection leave by the trial Court could be gone into in appeal, it is difficult to appreciate why an appellate Court could not itself grant leave, if in a given case it came to the conclusion that the plaintiff was entitled to leave under Section 20, Clause (b), Civil Procedure Code. I, therefore, hold that the power to grant leave under Section 20, Clause (c) Civil Procedure Code can be exercised by the appellate Court.
15. If, however, the application made by the plaintiff-appellant beefier the lower appellate Court on 5-7-1961 is looked into, the only ground which is disclosed in the application on which leave was sought, is that he defence of all defendants was common and the counsel was the same. Of course, this recital forms a very insignificant part of the whole application which reiterates the stand that the order of the trial Court dated 26-2-1960 is an order granting leave under S. 20, Clause (b). Civil Procedure Code. I am unable to see how on the ground that the defence is common and the counsel is the same leave sought t file a suit I the Court against the defendants, who are admittedly staying beyond the territorial jurisdiction of the trial Court could be granted. If prima facie leave has to be obtained at the initial stage of the suit, though in certain circumstances it may be granted also in appeal, merely because the defence is common it cannot be a ground for asking for leave under S. 20. Clause (b) of the Civil Procedure Code. The question of the defendants raising a defence normally arises after a suit is properly instituted against them. The subsequent fact of the defendants filing their written-statement setting out defence, cannot be said to entitle the plaintiff to take advantage of that fact for the purpose of dragging a defendant, who is normally now subject t the jurisdiction of that Court, to go to trial in such a Court. As a matter of fact, the application hardly discloses any reason why the suit could not be filed at Ramtek. The whole conduct of the plaintiff leaves me with the impression that under the garb of making a claim for so called damages for impounding cattle, the plaintiff is substantially trying to litigate a question of his title against the defendant No. 1 in respect of the filed in suit. The application dated 5-7-1961 could, therefore, have been dismissed as not disclosing any ground at all, on which leave of the Court was sought to file a suit at Nagpur against the defendants Nos. 2 and 3. It may be stated that even in the course of argument no reason has been disclosed why the lower appellate Court should have given such a leave. But a faint suggestion was made that on certain questions the lower appellate Court has given findings in favour of the plaintiff and he should be entitled to make use of these no jurisdiction to entertain the suit the so-called findings cannot help the plaintiff can be said to have reasonably and honesty believed that all the defendants were residing within the jurisdiction of the Court in which the suit was instituted. Granting leave in such circumstances would really amount to confer jurisdiction on a court which die not have it when the suit was originally instituted in that Court without complying with the statutory requirement of Section 20(b), Civil Procedure Code.
16. In view of the stand which the plaintiff has throughout taken, I am clearly of the opinion that the plaintiff was no entitled to an order granting leave under Section 20(b), Civil Procedure Code, and thus, though for different reasons, I hold that the lower appellate Court was justified in rejecting the application of the plaintiff dated 5-7-1961.
17. That brings me now to the application which the appellate has filed in this Court on 8-1-1962. As a matter of fact, since the legality of the application dated 5-7-1961 was itself the subject matter of the appeal, a second application was not at all necessary and on the view which have taken by the order on the first application made in this Court is also liable to be rejected. Since the suit was instituted in Nagpur Court, without complying with Section 20(b), Civil Procedure Code, the lower appellate Court was justified in dismissing the appeal. It is not necessary to decide the correctness or otherwise of the findings given by the lower appellate Court on merits of the case between the parties.
18. The result, therefore, is that the appeal fails and is dismissed with costs.
19. Appeal dismissed.