A. Sambasiva Rao, A.C.J.
1. In this Letters Patent Appeal a question relating to Section 21 of the Code of Civil Procedure is raised, in addition to the point relating to the merits of the claim made by the appellant. The unsuccessful plaintiff before Chinnappa Reddi, J., in C.C.C.A. No. 26 of 1971 has filed this Letters Patent Appeal
2. He filed the suit to recover a sum of Rs. 5,431 towards arrears of subsistence allowance due and payable to him from 14th October, 1963 to 14th April, 1966. He claimed interest on that amount. The defendant was the Union of India, since the plaintiff was an employee in the Railways of the Union of India. The trial Court decreed the suit only for Rs. 3,787-30 with proportionate costs. In the defendant's appeal, Chinnappa Reddi, J., set aside that decree and ruled that the trial Court had no territorial jurisdiction to entertain the suit and consequently dismissed it. The plaintiff has brought this Letters Patent Appeal.
3. The events which have happened before filing of the suit are not in dispute. The plaintiff was an employee of the Central Railway as Senior Grade Sanitary Inspector. While he was working in that capacity in Secunderabad, he was trapped while he was accepting a bribe of Rs. 5. He was prosecuted before the special Court and was convicted for the offence of corruption on 14th October, 1963. The appropriate authority of the Railways passed an order of dismissal dated 12th November, 1963 against him. The plaintiff challenged his conviction and sentence in Crl. A. No. 613 of 1963 before this Court and by the judgment dated 16th June, 1965, the appeal was allowed, the conviction was set aside and the case was remanded to the special Court for fresh disposal. It is worthy of note that the High Court did not acquit him, but only directed the special Court to dispose of the case afresh. When the matter went back to that Court, it once again convicted the plaintiff and imposed a punishment on 14th April, 1966. It is stated before us that once again an appeal was preferred against this conviction and sentence, but the same was dismissed. The present suit was filed by the plaintiff for his subsistence allowance between the dates of his two convictions, i.e., between 14th October, 1963 and 14th April, 1966, The suit was resisted on two grounds. Firstly, it was contended that the Court at Secunderabad had no jurisdiction since the plaintiff was in Maharashtra when he was suspended from service, right up to his second conviction. Since the suspension took place and the order of dismissal was passed while he was in Maharashtra, only a Court in Maharashtra had jurisdiction to entertain the suit and not the Court in Secunderabad. It was also contended that in any case the plaintiff was not entitled to the subsistence allowance at all.
4. The trial Court overruled the objection of the Railway in regard to jurisdiction. According to it a part of the cause of action, viz., the commission of offence arose in Secunderabad and, therefore, this Court had jurisdiction. Having been satisfied that it had jurisdiction to entertain the claim of the plaintiff, it proceeded to consider the case on its mertits. It felt that since the conviction of 14th October, 1963 was set aside by the High Court in Crl. A. No. 613 of 1963 and once again the special Court convicted the plaintiff only on 14th April, 1966, the entire period from 14th October, 1963 to 14th April, 1966 must be treated as one of suspension. Therefore, in the opinion of the trial Court the plaintiff was entitled to subsistence allowance for this period of 29 months 4 days. It fixed the rate of subsistence allowance at Rs. 120 plus Rs. 10 towards Dearness Allowance per month, i.e., a total for a month was Rs. 130. On that basis it awarded the decree which was referred to above. It also gave proportionate costs.
5. In the Railway's appeal, i.e., C.C.C.A. No. 26 of 1971 Chinnappa Reddi, J., came to the conclusion that the cause of action for the suit claim arose outside the State of Andhra Pradesh and within the State of Maharashtra. The learned Judge noticed the fact that the plaintiff was serving in Maharashtra when he was suspended from service and the order of dismissal was also passed by the Chief Medical Officer at Bombay, and, therefore, the cause of action arose within the State of Maharashtra. In that view the learned Judge held that the Secunderabad Court had no jurisdiction to entertain the suit and pass a decree. The appeal was accordingly allowed and the suit was dismissed. Here it may be mentioned that the learned Judge did not go into the question of merits of the claim made by the plaintiff.
6. In the first place Sri Dwarakeswara Rao for the plaintiff-appellant disputes the correctness of the view of the learned Judge in holding that the trial Court had no jurisdiction. The learned Counsel submits that since the trap was laid here it must be held that the cause of action arose within the jurisdiction of the Secunderabad Court. We cannot accede to this argument. True, this laying of the trap may be the basic cause for the order of dismissal passed against the plaintiff, but the fact remains that this is a claim for subsistence allowance for the period of suspension. The order of suspension was passed when the plaintiff was serving in Maharashtra. Further the order of dismissal itself was passed by the Chief Medical Officer at Bombay. All along, right upto 14th April, 1966 when the special Court once again convicted and sentenced him, the plaintiff was in service in the State of Maharashtra and outside the jurisdiction of Secunderabad Court. Therefore, it cannot be said that any part of the cause of action arose within the jurisdiction of the Secunderabad Court. The conclusion, therefore, is that the Secunderabad Court had no jusisdiction to entertain the suit.
7. But then the learned Counsel for the plaintiff-appellant argues that even supposing that the Court decided the claim of the plaintiff without jurisdiction, no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. It is pointed out that there is no failure of justice, at any rate demostrated by the Railway, consequent on the Secunderabad Court assuming jurisdiction and disposing of the suit. Therefore, the learned Judge, according to the learned Counsel, is wrong in allowing the appeal on the objection that the Secunderabad Court had no jurisdiction.
8. Section 21 of the Code of Civil Procedure is the material provision. Indeed this is the basis for Sri Dwarakeswara Rao's aforesaid argument. That section reads :
No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
Now, there are two requirements before an appellate or revisional Court takes notice of an objection as to the place of suing and allows it. They are (1) the objection should have been taken at the earliest possible opportunity in the Court of first instance. Even there if they are matters where issues are settled, the objection should have been raised either before or at the time of their settlement. But mere raising of the objection at the earliest possible opportunity in accordance with this requirement would not be sufficient for the appellate or revisional Court to allow an objection as to the place of suing. There is a further requirement and that is, it must be satisfied that there has been a consequent failure of justice. To put it in other words, it must be satisfied that the wrong Court assuming jurisdiction has resulted in failure of justice. Unless this satisfaction is also present along with the circumstance that the objection as to the place of suing has been taken at the earliest possible opportunity, no appellate or revisional Court can allow an objection as to the place of suing.
9. The policy of the Legislature in framing this section is very patent. Once a Court disposes of a matter on merits, it shall not be permissible for an appellate or revisional Court to go back to the objection as to the place of suing, generally speaking. It is permitted to do so only in certain specified circumstances. The Legislature has obviously made this provision in order to reduce as far as possible the objections as to the jurisdiction, once the trial Court has disposed of the matter on its merits.
10. Now, if either of the two requirements is not present in any particular case, the appellate or revisional Court cannot allow an objection as to the place of suing. That clearly emerges from the language of Section 21, Civil Procedure Code itself. What is patent from the language of the section is clarified and reiterated by many a decision including the Supreme Court. The Supreme Court dealt with this question in two cases. In Kiran Sing and Ors. v. Chaman Paswan and Ors. : 1SCR117 , Venkatrama Ayyar, J., speaking for the Court held, that the jurisdiction that is conferred on appellate Courts under Section 11 of the Suits Valuation Act is an equitable one to be exercised when there has been erroneous assumption of jurisdiction by a subordinate Court as a result of over-valuation or undervaluation and a consequential failure of justice. The learned Judge particularly emphasised the aspect that the consequential failure of justice should be established on account of erroneous assumption of jurisdiction before the appellate or revisional Court interferes with the lower Court's decision. The other decision of the Supreme Court is Bahrein Petroleum Co., Ltd., V. P. J. Pappu and Ors. A.I.R. 1966 S.C. 634 In this case the scope of Section 21, Civil Procedure Code, was directly considered. Bachawat, J., speaking for the Court observed that the condition ' unless there has been a consequent failure of justice' mentioned in Section 21, Civil Procedure Code, implies that at the time when the objection is taken in the appellate or revisional Court, the suit has already been tried on the merits. The section does not preclude the objection as to the place of suing, if the trial Court has not given a verdict on the merits at the time when the objection is taken in the appellate or revisional Court. He further observed at page 636 :
As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Civil Procedure Code provides an exception, and a defect as to the place of suing, that is to say-the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under Section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 - 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.
A Division Bench of this Court held in Life Insurance Corporation of India v. T. Tirupathayya : AIR1963AP353 , that before an appellate Court can interfere on the ground of the lower Court's want of jurisdiction, the appellant must show that he has been prejudiced by the trial of the suit being held within a particular jurisdiction and that the disposal of the suit has been prejudicially affected on the mertis. In laying down this principle the learned Judges relied on the decision in Kiran Singh and Ors. v. Chaman Paswan and Ors. : 1SCR117 . More authority is not necessary. The principle is well established. Sri Venkataramana Reddy, the learned Counsel for the Railway invites our attention to the decision of Basi Reddy, J. in M. B.T. Co., Madras v. Annam Narasimharao (1968) 1 An W.R. 424. The learned Judge there was considering the question of prejudice. The question arose in a small cause suit where no issues were framed. Therefore, the learned Judge pointed out that the failure to press the question of jurisdiction as a preliminary issue do not arise in a small cause suit and, therefore, the very decision on merits resulted in prejudice. That has no application to the facts of the present case.
11. These principles when applied to the circumstances of the case before us would show that the objection as to the jurisdiction was no doubt taken at the earliest possible moment, i.e., in the written statement. An issue also was framed though it was not pressed as a preliminary issue. The Lower Court considered the issue and decided, that it had jurisdiction, because in its view a part of the cause of action arose within its jurisdiction, Chinnappa Reddi, J., sitting in appeal could have allowed the objection as to the place of suing, only if and when he was satisfied that there was a failure of justice consequent on the trial Court, which was the wrong Court, assuming jurisdiction and trying the suit. There was no attempt before the learned Judge to show that there was any consequent failure of justice ; nor the learned Judge pointed out any consequential failure of justice. That means that the second requirement of Section 21, Civil Procedure Code, has been missed by our learned brother while allowing the appeal. We have called upon Sri Venkataramana Reddy to show us whether there was any failure of justice on account of the wrong Court assuming jurisdiction and disposing of the suit. He has not succeeded in satisfying us that there has been any consequential failure of justice. Therefore, the decision of Chinnppa Reddi, J. is not in accordance with Section 21, Civil Procedure Code. We are not, therefore, in agreement with our learned brother in allowing the appeal simply on the ground that the trial Court had no jurisdiction to entertain the suit.
12. But this does not resolve the difficulty of the plaintiff-appellant. The appellate Court can certainly go into the merits of the case even though it cannot allow the objection as to the place of suing, unless the requirements of Section 21 Civil Procedure Code, are satisfied. We cannot accept the contention of Sri Dwarakeswara Rao, that we should straightaway allow the Letters Patent Appeal and affirm the trial Court's decree because the learned Judge did not go into the merits. Patently the learned Judge did not choose to go into the merits because in his opinion the appeal should be allowed on the legal question as to jurisdiction. Instead of remitting the matter back to a learned single Judge, we have decided to consider the merits of the case and decide it in the light of the evidence and the circumstances of the case.
13. The claim is for subsistence allowance from 14th October, 1963 to 14th April, 1966. The lower Court was of the view that the plaintiff was entitled to subsistence allowance from 11th November, 1963 to 14th April, 1966 but at the rate of Rs. 130 per month consisting of Rs. 120 subsistence allowance and Rs. 10, dearness allowance. It must be immediately noticed that the lower Court not only reduced the rate of subsistence allowance less than what was claimed, but also reduced the period for which subsistence allowance was due by nearly one month. The trial Court did not award a decree for the period from 14th October, 1963 till 11th November, 1963, because on 12th November, 1963, the plaintiff was dismissed from service. There is no appeal in regard to this exclusion of nearly one month's period nor about the reduced rate of subsistence allowance. So what we have to consider is whether the lower Court is right in awarding the subsistence allowance from 11th November, 1963 to 14th April, 1966.
The lower Court has reasoned out its con conclusions in the following manner :
Under Rule 1711 of the Railway Extablishment Code, a Railway servant shall be placed under suspension when he is arrested or committed to prison pending trial by a Court of law and he shall remain under suspension until the judgment is delivered by the Court.
The judgment of the special Court rendered on 14th October, 1963 was set aside by the High Court in Criminal Appeal No. 613 of 1963. The matter went back to the special Judge and the case was finally disposed of by that Judge on 14th April, 1966. The trial Court, therefore, thought that this period must be treated as one under suspension. It further referred to Rule 1706 of the Railway Establishment Code and thought that it laid down that a Railway servant shall be liable to be dismissed from service on a conviction by a Criminal Court. Since the conviction was on 14th April, 1966 and the earlier conviction was set aside, the entire period between the two dates must be treated as one of suspension. It is on this basis the lower Court awarded subsistence allowance.
14. This reasoning is fallacious. In the first place the trial Court's reference to Rules 1711 and 1706 of the Railway Establishment Code is not accurate. Rule 1711 has no reference to suspension. It is Rule 1706, that deals with suspension. Sub-rule (1) provides for a Railway servant being placed under suspension, where a case against him in respect of any criminal offence is under investigation or trial. Sub-rule (3) says where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with other directions, the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. Likewise under Sub-rule (4), where a penalty of dismissal, etc., is set aside by a decision of the Court of law and the disciplinary authority decides to hold a further enquiry against him on the allegations on which penalty has been imposed, the railway servant shall be deemed to have been placed under suspension by the competent authority. This Rule does not actually say anything about dismissal or imposition of penalty of dismissal. However, it postulates the imposition of penalty of dismissal, etc., on a Railway servant who is under suspension on account of his being charged with a criminal offence. It does not lay an embargo on the appropriate authority that a Railway servant shall not be dismissed from service until the criminal offence is actually tried by the Court and he is convicted and sentenced by that Court. The appropriate authority, in exercise of its disciplinary power, can impose the penalty after conducting its own domestic enquiry. As far as we can see there is nothing in Rule 1706 or for that matter in Rule 1711, which precludes the authority from imposing the penalty of dismissal when a charge is pending against a Railway servant before a Court. The order of dismissal in this case was made against the plaintiff on 12th November, 1963 immediately after the special Judge convicted and sentenced the plaintiff on 14th October, 1963. It is no doubt true that his conviction and sentence was set aside by the High Court in Crl. A. No. 613 of 1963, but the fact remains that the plaintiff was not acquitted. The special Judge was directed to make a fresh trial which was then made and the plaintiff was once again convicted and sentenced on 14th April, 1966. It is common ground that there was no fresh order or dismissal against the plaintiff apart from the original one on 12th November, 1963. Evidently the appropriate authority thought that since the special Court once again convicted and sentenced the plaintiff, there was no need to make fresh order of dismissal and that the original order stood. This view taken by the authorities is in no way inconsistent with the Rules contained in the Railway Establishment Code. In consequence the dismissal took effect on and from 12th November, 1963. The trial Court was wrong in thinking that the period from 11th November, 1963 to 14th April, 1966 should be deemed to be the period of suspension. On the other hand the plaintiff was dismissed on 12th November, 1963 and was no more in service of the Railway after that date. The further trial and later conviction do not alter this situation. Therefore, we are of the opinion that he is not entitled to any subsistence allowance from 11th November, 1963 to 14th April, 1966 as decreed by the trial Court. We may also refer to Rule 2042 of the Railway Establishment Code, which provides that the pay and allowances of a railway servant who is removed, or dismissed from service cease from the date of the order of removal or dismissal. From this Rule it follows that right from 12th November, 1963, on which date the one and only one dismissal order was passed against the plaintiff, he is not entitled to any pay or allowance from the Railway since he ceased to be in their service.
15. The result of the foregoing discussion is that the view taken by the trial Court on the merits of the claim of the plaintiff is untenable. The plaintiff is not entitled to any subsistence allowance.
16. We, therefore, dismiss the Letters Patent Appeal, though we agree with the legal contention raised on behalf of the appellant in respect of Section 21 of the Code of Civil Procedure.
17. In the result, the Letters Patent Appeal, is dismissed, but having regard to the circumstances of the case, we direct the parties to bear their own costs throughout.