1. This is an appeal under Clause 10 of the Letters Patent against a judgment of a learned Single Judge who had affirmed in appeal a preliminary decree for rendition of accounts granted by the Courts below in favour of respondent No. 1. The undisputed facts are that the father of the appellant and respondent No. 1 died in the year 1949. The appellant applied for grant of a succession certificate in respect of the property left by the deceased in the Court of Senior Sub Judge, Mahasu. This application was not contested by any one and succession certificate was granted in favour of the appellant in April 1951. In November 1961 respondent No. 1 filed a suit against the appellant impleading respondents 2 to 7 also as defendants for rendition of accounts regarding the movable assets of the deceased covered by the succession certificate on the ground that he alone had been managing the same. The suit was contested by the appellant only. In February 1962 the following seven issues were framed on the pleadings of the parties : --
'1. Whether this Court has jurisdiction to try this suit?
2. Whether the suit is within time?
3. Whether the suit is not properly valued for purposes of court fee and jurisdiction?
4. Whether the suit as framed is not maintainable?
5. Whether defendant No. 1 is not LIABLE to render accounts?
6. Whether the plaintiff has one-fourth share in the estate left by the deceased?
The parties then proceeded to lead evidence on the issues relating to the merits. Arguments were heard towards the end of July 1988 and issues 2 to 6 were conceded on behalf of the appellant. It was held that respondent No. 1 had one-fourth share in the estate. With regard to issue No. 1 relating to jurisdiction, the learned trial Judge held that the deceased had died at Delhi and in the interrogatories filed by the appellant there was an admission that the shares of the deceased were lying in the Allahabad Bank, Delhi. Therefore a part of the property of which the accounts were sought was within the jurisdiction of the Delhi Courts and the Delhi Courts had jurisdiction even though the Courts of Himachal Pradesh would also have jurisdiction.
A preliminary decree for accounts was thus passed against the appellant who was held to be the accounting party. The appellant filed an appeal which was disposed of by the learned Additional Senior Sub Judge on 30th May 1984. The question of the jurisdiction of the Delhi Courts was raised before him but he held that in view of the provisions of Section 21 of the Code of Civil Procedure and there being no allegation that any prejudice or failure of justice had resulted on account of the trial of the suit by the Delhi Courts, the appeal was liable to be dismissed.
2. On second appeal to this Court, S.K. Kapur J. considered me authorities presented to him and took the view that Section 21 of the Code was applicable and it was necessary for the appellant to show failure of justice. It was not contended before him that there had in fact been any failure of justice. The appeal having been dismissed by him, the present appeal has been filed from his judgment.
3. Now, Section 21 of the Code of Civil Procedure provides that 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. Mr. Anant Ram Whig, learned counsel for the appellant, has relied a great deal on a decision of Tek Chand J. in Firm Ramditta Mal Sant Lal v. Firm Seth Jot Ram Kidar Nath, AIR 1940 Lah 171 in which the following observations were made at page 172: 'It is no doubt true that under Section 21 Civil Procedure Cods, an objection as to the place of suing cannot prevail in an appellate or revisional Court unless such objection had been taken in the Court of first instance at the earliest possible opportunity and there has been a consequent failure of justice. In this case nothing substantial has so far been done; only the issue of jurisdiction has been decided, and as the defendants do not deny that they were commission agents and are the accounting party, a preliminary decree followed as a matter of course. The real trial of the suit is to begin now when accounts are to be taken.'
Mr. Hans Raj Sawhney says that this decision is clearly distinguishable from the present case because only the issue of jurisdiction had been decided in that case and there had been no trial on the merits whatsoever, the defendants there having conceded that they were commission agents and were the accounting party. In the present case all the Courts including the learned Single Judge have found and it is not disputed, that the parties led evidence on the issues relating to the merits. It is true that at the final stage of arguments all the issues except the question relating to jurisdiction were conceded. Nevertheless, the parties had invited decision on the merits and, therefore, the position in the present case is not parallel to the one which obtained in the Lahore decision.
It may be mentioned that although a number of cases have been cited with regard to the scope and ambit of Section 21 but mere is no other case in which a question came up for consideration whether failure of justice would be the decisive factor in a suit where a preliminary decree has to be granted and where there has been a proper trial of the suit up to the stage of the preliminary decree. The argument of Mr. Whig is that the trial of the suit cannot be said to have concluded until the final decree is made; whereas Mr. Sawhney maintains that in a case in which the parties have led evidence on the merits and a preliminary decree has been passed it cannot be said that the trial of the suit has not concluded up to a precise and definite stage.
4. Before the contentions mentioned above are examined more fully, it will be useful to refer to some of the leading cases decided under Section 21 of the Code of Civil Procedure for the purpose of determining when it becomes necessary for a party to establish failure of justice in order to successfully raise an objection as to the place of suing. In Murari Lal v. Madan Lal, ILR (1953) Punj 33: (AIR 1952 Punj 205), Eric Weston C. J. has said that the expression 'consequent failure of justice' in Section 21 of the Code can be regarded only in the light of the conclusion of the suit. When a party objecting to jurisdiction has come at the earliest opportunity and before any decision on the merits of the suit has been made, such party, if it succeeds in showing want of jurisdiction, is entitled as of right that the objection be upheld.
In Harke v. Giani Ram, ILR (1962) 2 Punj 74 a bench, consisting of Falshaw C. J. and myself was called upon to consider the validity of Section 8 of the Punjab Gram Panchayat Act, 1952 which left it to the Prescribed Authority to find, after such enquiry as it might deem necessary, that a failure of justice had occurred and if it was so found, the election to the Gram Panchayat could be set aside. In that connection certain observations were made with reference to the language of Section 21 of the Code. This is what was said at page 87--
'The object of the legislature in enacting this principle of law is that when the Court of first instance after giving an affirmative finding on jurisdiction takes proceedings on the merits of the case, the latter should not be rendered abortive and all the time and labour spent thereon should not be wasted simply by reason of the fact that the higher Court comes to a contrary finding on the preliminary point of jurisdiction.'
The above observations were based on the Bench decision of the Chief Court in Ratti Ram v. Kundan Lal, 87 Pun Re 1914: (AIR 1914 Lah 385) in which the judgment was delivered by Shadi Lal J. (as he then was). Reference was also made in Harke's case, ILR (1962) 2 Punj 74 to Lachha Ram v. Virji, AIR 1921 All 66 in which it was laid down that where the first Court had tried out the case on the merits in such a way that all the available evidence which either party wanted to call had been called and the hearing in trial was satisfactory as a matter of procedure, the question of the territorial jurisdiction was relegated to obscurity even though the first court had no territorial jurisdiction.
In Kishore Lal v. Firm Lajja Rain Ram Sarup, AIR 1951 Punj 375, Harnam Singh J. held that under Section 21 even though the objection as to place of suing had been raised at the earliest possible opportunity or wrongly disallowed the judgment would not be disturbed unless the trial in the wrong Court had led to a failure of justice. In order to ascertain whether there had been a failure of justice the appellate Court must go into the merits of the case and form an opinion upon the justice or otherwise of the decision of the original Court. The decision of their Lordships in Kiran Singh v. Chaman Paswan, 1955 (1) SCR 117: (AIR 1954 SC 340) related to a case in which Section 11 of the Suits Valuation Act came up for consideration. This is what was observed at page 122---
'The policy underlying Sections 21 and 99 of the Civil Procedure Code, and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.'
5. A discussion of the authorities mentioned above leaves no room for doubt that when a case has been tried out by a Court on the merits and judgment rendered it cannot be reversed purely on the ground of jurisdiction unless it has resulted in failure of justice. The short question, therefore, which has to be answered is whether the present case has been tried by the Courts on the merits and judgment has been rendered. Mr. Whig has not sought to argue that the issues which were conceded before the trial Court did not relate to the merits and there was no decision as such on the merits. His sole contention which has been forcefully canvassed is that in the present case the suit could not be regarded as having been tried out in which a judgment has been rendered because only a preliminary decree has been passed. According to him the view expressed by their Lordships as also the other Courts including this Court is based on the assumption that the entire trial of the case has concluded and that a final judgment has been rendered which is not the case here.
6. Now, Section 2(2) of the Code defines a decree as meaning the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. According to the Explanation, a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. In Talebali v. Abdul Aziz, ILR 57 Cal 1013: (AIR 1929 Cal 689) (FB), a Full Bench of five Judges presided over by Rankin C. J. was called upon to answer the following questions :--
'(1) Whether an appeal from a preliminary decree is incompetent, if a final decree is made before the appeal is presented?
(2) Whether it is necessary, for a party aggrieved by a preliminary decree, to appeal both from that decree and the final decree, in order to maintain his appeal against the preliminary decree, although the final decree, apart from its being based on the preliminary decree, may be otherwise correct?'
While answering those questions, the learned Chief Justice examined at length the scope and nature of the definition of the word 'decree' and the Explanation set out above and observed at page 1037 that a preliminary decree could not be treated as a mere interlocutory order. In his view the proceedings culminating in the final decree were more in the nature of 'subordinate enquiries' as described by Lord Hob-house in Muzhar Hossein v. Mt. Bodha Bibi, (1894) ILR 17 All 112 (PC). In Mulla's Code of Civil Procedure, Vol. I (1965 Edition), the statement of law based on this case has been given in the following terms :--
'A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further enquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination. That is the final decree.'
There can be no manner of doubt that whatever has been determined by the preliminary decree can be reopened only in an appeal against that decree and not in the proceedings relating to the final decree. As has been stated, the preliminary decree, particularly in a suit for accounts declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. All that has now to be done in the present case is that accounts have to be gone into for determining the amounts to which the parties may be found entitled in accordance with the shares declared by the preliminary decree. It is not possible, therefore, to say that there has been no trial of the suit or no Judgment has been rendered. It may be that further proceedings have yet to take place and another judgment has to be rendered out that cannot wipe out the trial which has proceeded up to the stage of the preliminary decree.
The decision in AIR 1940 Lah 171 on which Mr. Whig relied is clearly distinguishable for the reasons suggested by Mr. Sawhney which have already been mentioned. I am, therefore, of the view that the learned Single Judge as also the lower appellate Court were right in not going into the question of jurisdiction in the absence of any suggestion that there had been a failure of justice.
7. For the reasons given above, this Appeal fails and it is dismissed, but in view of the entire circumstances the parties are left to bear their own costs.
S.B. Capoor, J.
8. I agree.