OBJECTION ON JURISDICTION

The views expressed by the Supreme Court in the DLF Universals case (supra) has been reiterated in
a later decision.182 In para 23 of the judgment, S.B. Sinha, J., has observed as follows:
“23. We may, however hasten to add that a distinction must be made between a decree passed by a
court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil
Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of
the suit. Whereas in the former case, the appellate court may not interfere with the decree unless
prejudice is shown, ordinarily the second category of the cases would be interfered with.”

In another decision, the Supreme Court has held that it is permissible to raise objection to the
jurisdiction as any stage when the objection is as regards the subject matter of the suit.3 It has been
observed in the above case as follows:
“19. A distinction, however, must be made between a jurisdiction with regard to subject-matter of
the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the
former category the judgment would be a nullity, in the latter it would not be. It is not a case where
the Tribunal had no jurisdiction in relation to the subject-matter of claim. As a matter of fact the civil
court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim
petition under the Motor Vehicles Act, in our opinion, the Court should not have, in the absence of
any finding of sufferance of any prejudice on the part of the first respondent, entertained the
appeal.”

Section 21 of the Code does not apply to High Court in exercise of its original civil jurisdiction. Oriental
Bank of Commerce v SK Agarwal, 2008 AIHC (NOC) 610 (Cal) : AIR 2008 Cal 148 ;
APD No 179 of 2001, Dt 15 May 2008 (DB).
Objection not taken at the earliest cannot be allowed to be taken at subsequent stage. Harsad CL
Modi v DLF Universal Ltd, AIR 2005 SC 4446 .

The policy of legislature has been to treat objection to jurisdiction both pecuniary and territorial as
technical. It is not open to consideration by an appellate Court, unless there has been a prejudice on
the merits. Kiran Singh v Chaman Paswan, AIR 1954 SC 340 (342) : (1955) 1 SCR 117 : (1954) 2 MLJ 60
: 1954 ALJ 551

An objection to territorial jurisdiction of a Court before Court of appeal cannot be entertained in

absence of evidence of failure of justice in consequence of trial in wrong Court. In order that an
objection to the place of suing may be entertained by an appellate or revisional Court, following
three conditions must be fulfilled, namely, (1) The objection was taken to the Court of first instance,
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or
before such settlement, (3) there has been a consequent failure of justice. All these three conditions
must co-exist. Pathumma v Kuntalan Kutty, AIR 1981 SC 1683 : (1981) 3 SCC 589

A distinction must be made between a jurisdiction with regard to subject matter of the suit and that
of territorial and pecuniary jurisdiction. If the case of raising objection falls within the former
category the judgment would be nullity, in the latter it would not be. Mantoo Sarkar v Oriental Insurance
Co Ltd, AIR 2009 SC 1022 (1026)
S 21A

Supreme Court in the case of Subhas Mahadevasa Habib,97 in the following words:

Though Section 21A of the Code speaks of a suit not being maintainable for challenging the validity of a prior decree
between the same parties on a ground based on an objection as to the place of suing, there is no reason to restrict its
operation only to an objection based on territorial jurisdiction and excluding from its purview a defect based on pecuniary
jurisdiction. In the sense in which the expression place of suing has been used in the Code it could be understood as taking
within it both territorial jurisdiction and pecuniary jurisdiction. Section 15 of the Code deals with pecuniary jurisdiction
and, Sections 15 to 20 of the Code deals with place of suing. The heading place of suing covers Section 15 also. This Court
in the Bahrein Petroleum Co. Ltd. v. P.J. Pappu [(1996) 1 SC R 461 ] made no distinction between Section 15 on the one
hand and Sections 16 to 20 on the other, in the context of Section 21 of the Code. Even otherwise, considering the
interpretation placed by this court on Section 11 of the Suits Valuation Act and treating it as equivalent in effect to Section
21 of the Code of Civil Procedure, as it existed prior to the amendment in 1976, it is possible to say, especially in the context
of the amendment brought about in Section 21 of the Code by Amendment Act 104 of 1976, that Section 21A was intended to
cover a challenge to a prior decree as regards lack of jurisdiction, both territorial and pecuniary, with reference to the
place of suing, meaning thereby the court in which the suit was instituted.