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Introduction
Fighting a case in a Court is an uphill task. One has to appear before the Court on various dates and have to keep himself updated with the daily happenings in the matter. That is the reason why some parties in order to harass a person file a case against him/her in a place where he does not even live. This despite the fact that the Section 20 of Civil Procedure Code, 1908 specifically says that a case should be filed where the defendant (the person against whom the case is filed) lives or does business.
Let’s say a person lives in Delhi and a case is filed against him in Gujarat. Consider his plight as he has to go from Delhi to Gujarat on every hearing. Not only this, he have to sign many documents including Applications, Pleadings, Affiidavit, Evidence Affidavit etc. for which he may have to be present in Gujarat. Also it will be difficult for him to keep himself updated about the latest developments in his case which is filed against him in a different State.
That is the reason that Supreme Court is flooded with petitions to transfer case (which are called Transfer Petitions) from one state to another and there is a dedicated Bench which looks after these matters in Supreme Court.
Today we will see a case where though the person lived in Bihar, a case against him was filed in Calcutta. How he dealt with the matter and what he should have done to shift the matter from Calcutta to Bihar, will be the topics of our discussion in this Article.
Brief Facts
A and B formed a partnership to execute construction contracts. Soon dispute arose between the partners and A filed a case in Calcutta High Court on the ground that B have hidden profits of the partnership from him and misappropriated them and hence he want to end the partnership and take the profits which are due to him. (This type of case is called “Suit for Dissolution of the Partnership and Taking of Accounts of the Partnership ”. It means that one partner believes that he does not want to be in the partnership firm anymore and hence he wants to end the partnership. Now when a partnership is dissolved (means ended) every partner, including the one who have filed the case, has to be given his share in the profits. For this the profits are to be ascertained and this is called “Taking of Accounts of the Partnership”. For this purpose the Court has the power to appoint Receivers who can seize the accounting books of the Partnership. Such a suit for taking accounts is also filed when partition in a family is sought).
But the moot question is why this suit is filed in Calcutta? Because A said that it was an oral partnership formed in Calcutta. So to prove the oral contact witnesses who live in Calcutta are to be called to the Court. Hence its better that the High Court of Calcutta tries this case. When B appeared before the court he filed an application before the Calcutta High Court stating that the case is instituted in Calcutta only to harass him as the partnership was not oral and was formed vide a partnership deed which was entered into in Bihar. The partnership has nothing to with Calcutta and the sole aim of A is to harass B, so that B has to run from his home in Bihar to Calcutta just to attend court hearings.
But this application was dismissed by the Single Judge on the ground that B has filed this application after 4 years and dismissing the case and sending A to Bihar to file a new case altogther, will do in justice to A. B challenged this order before 2 Judge Bench and though the case went till Supreme Court, B lost.
But why did B lose? B lost because he committed two a very big mistakes.
Firstly when B challenged the order of Single Judge before the 2 Judge Bench of Calcutta High Court he did not seek the stay of the proceedings before the Single Judge. It was important because when the Single Judge decided that the case is rightly filed in Calcutta High Court, then the case would be proceeded there i.e. framing of issues and witness examination will start. If stay has been taken by B it would mean that the case before the single judge will be stopped till the time 2 Judge Bench decides the matter. But B did not do so, therefore case before the Single Judge continued. It was an epic blunder because as there is no stay and a case has continued for so many years, no Court will allow any party to claim that the case should not be continued in that Court.
Secondly, if B believed that the case cannot be filed in the Calcutta High Court then it ought to have taken this as a Preliminary Objection. Preliminary objections are those objections which can be taken by the party against whom the case is filed, but these can be raised only at the initial stage. Like in the present case B should have taken the objection that the Calcutta High Court is not the right Court as soon as it started appearing in the matter. The advantage of taking a preliminary objection is that rather than taking the pain of dealing with the whole case, which in India takes several years to be decided, a party can it get it dismissed within months. Wrong place of filing the case (called Territorial Jurisdictional Challenge) is not the only the preliminary objection and there are many other kinds of preliminary objections like wrong valuation of the property or when some Court does not have jurisdiction to try a particular kind of case (like a case related to partition of agricultural land in Uttar Pradesh and Delhi can only be filed in Revenue Courts and a Regular Court like Tis Hazari Courts cannot try such a case) are its other examples.
But if the party does not take up this objection at the initial stages and waits for 2 to 3 years, then the Court generally does not allow it, as the court is not responsible for the negligence of the party. That’s primarily the reason why Supreme Court has allowed the case to proceed in Calcutta and dismissed B’s application. Only two mistakes of B i.e. not seeking a stay before the Division Bench and not taking preliminary objection in the initial stages of the case costed him dearly and he now have to fight a case in a State in which he does not even live.
Conclusion
A civil case, unlike a criminal one, takes years for its completion in India. In this kind of scenario a party just to harass the other person may file the case in a faraway place and force the other party to settle the case on the conditions which it demands. In such situations the best way to save yourself is to take Preliminary Objections and finish the suit in one or two hearings. In this way the evil designs of the other party will fail and the honest party will win the case within months without the travails of a prolonged trial.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India