Decision cited :

In the case of Hakam Singh v. Gamon (India) Ltd. (1973) 3 SCR 314, the hon’ble Apex court held that 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 the two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceedings on agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy.

In the case of Hira Lal v. Kali Nath, (1962) 2 SCR 747, the hon’ble Court held that jurisdiction as to the subject matter is distinct and stands on different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission it cannot take up the case or matter. An order passed by a court having no jurisdiction is nullity. 

In the case of Bahrein Petroleum Co. V. Pappu, 1966 (1) SCR 461 the hon’ble Apex court held that a decree passed by a court having no jurisdiction is nonest and its validity can be set up whenever it is sought to be 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.

In the case of Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 AIR 1954 SC 340 the hon’ble Apex court declared that 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.

In the case of Setrucharlu v. Maharaja of Jeypore, AIR 1919 PC 150, the Judicial Committee of the Privy Council stated that though no objection of as to jurisdiction of the court was taken by the Defendant and the decree was passed, such objection was not as to the place of suing but it is an objection going to the nullity of the order on the ground of want of jurisdiction.

In the case of New Mofussil Co.Ltd & Another v. Shankerlal Narayandas Mundale, AIR 1941 Bom 247 the hon’ble high court held that in a suit for specific performance of contract and possession of immovable property, under clause (d) section 16 of the Code, jurisdiction would lie where the property of the suit matter is situated.

Facts of the case :

The appellant entered into a plot buyer agreement with the Defendant for purchase of residential plot situated at Gurgaon, Haryana. The agreement was made in Delhi and the first installment was paid in accordance with the schedule of payment in Delhi. The parties had mutually agreed to the jurisdiction of Delhi court in case of dispute.  However the Defendant unilaterally and illegally cancelled the agreement by the reason of default in payment. The appellant objected to the illegal action of the Defendant and filed a suit before the High court of Delhi. The High court of Delhi granted interim injunction in favour of the appellant. In view of increase in pecuniary jurisdiction of District Court, the suit was transferred to District Court, Delhi for declaration and specific performance of the agreement for the possession of the property and for the permanent injunction.

Issue before Trial Court, Delhi :

Since the suit was for recovery of immovable property situated in Gurgaon District, whether the Delhi Civil Court has jurisdiction to try and entertain the present suit?

Trial Courts Verdict:

The Trial Court held that since the suit falls within the ambit of section 16 (d) of the Code of Civil Procedure, the Delhi Civil Court of Delhi has no jurisdiction to try the present suit and the proviso thereto has no application on the facts of the present case.

High Court’s Verdict:

The High court dismissed the civil revision application filed by the Appellant.

Supreme Court’s Verdict:

The Supreme Court held that though the Defendants had agreed to the jurisdiction of Delhi Court and even after the amendment in written statement the paragraph relating to jurisdiction had remained the same, 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 does not possess. Since the present suit was for specific performance of agreement and possession of immovable property situated outside the jurisdiction of Delhi court, Trial court was right in holding that it had no jurisdiction.

Acelegal Analysis :

In the instant case it appears that the decision of the Supreme Court has been observed with the decision of the High Court of Allahabad in the case of Hira Lal v. Kali Nath, (1962) 2 SCR 74, wherein the hon’be court observed that so far as the territorial and pecuniary jurisdictions are concerned, objections to such jurisdiction has to be taken at the earliest, it cannot be allowed at the subsequent stage. However jurisdiction as to the subject matter is totally distinct and stands on a different footing and hence where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission it cannot take up the case or matter. An order passed by a court having no jurisdiction is nullity.

On the very same analogy, it can be stated that though the parties entering into an agreement have mutually agreed upon jurisdiction of the court, it is not open to the parties by the agreement to confer by their agreement jurisdiction on a court which it does not possess under the Code. In the situation wherein two or more courts 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 tried in one of such courts is not contrary to public policy. Such an agreement does not contravene section 28 of the Contract Act.

Thus it can be concluded that in the situation wherein the territorial and pecuniary jurisdictions are concerned, objections to such jurisdiction has to be taken at the earliest, but in the case of jurisdiction as to the subject matter wherein the court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission it cannot take up the case or matter, an order passed by a such court having no jurisdiction is nullity.