Place of suing

1. Introduction:
Jurisdictional defect, either pecuniary or territorial or in respect of
subject matter of the action strives at the very authority of the court to
act. So, the first thing which is the most important is to determine the
place of suing.

2. Pecuniary Jurisdiction
S-15 of the Code deals with the pecuniary
jurisdiction of the court. It states: "Every suit shall be instituted in the
Court of the lowest grade competent to try it.
(AJ : upto 2 lac,
SAJ: upto 4 lac,
JDJ : unlimited)

The object of the section is:

(i) to prevent congestion in the higher court.
(ii) to afford convenience to the parties and witnesses in the suit

If a subordinate court and a superior court are vested with concurrent

jurisdiction, the case has to be instituted in the subordinate court.
Where a suit is filed in the court of lower grade which ought to have
been filed in the court of higher grade, the proceedings will be
without jurisdiction.
"Subsequent rising of the pecuniary jurisdiction of the court in which
the suit has been filed will not cure the defect of want of the
jurisdiction at the time of the institution of the suit." [Kesarimal vs
Banislal, AIR 1952 MB 196]

"A Suit for accounts is an exception to the ordinary rule that a court
cannot pass a decree for an amount beyond its pecuniary Jurisdiction."
[Benudhar vs Prabir, AIR 1985 ori 117]

However, this rule is one of procedure and does not oust the
jurisdiction of the court of higher pecuniary jurisdiction to try a suit.
Thus a joint District Judge is not barred from trying a suit which can be
tried by an Assistant Judge.
[Dhanakoti vs Veeraswami, AIR 1967 Mad 91]

If a suit is overvalued and is instituted in the higher court, the court has
the discretion to retain it or to return the plaint.
[Ansarul Haque vs Agrani Bank, AIR 1998 BLD 138]

This rule has no application to suits which

have to be filed in courts of exclusive jurisdiction.
Subsequent change of the value during the pendency of the suit is not
material and does not deprive the court of its jurisdiction if the suit has
been filed in a proper court.
[Anil Kumar vs Arun Kumar, 66 CWN 476]

A court of small causes is a court of preferential jurisdiction and not of

exclusive jurisdiction. Where there are two distinct claims, one
cognizable by the regular court and another by the small cause court,
the plaintiff can sue for both claims in the regular court.
[Satis vs Panchumani, 55 CWN 476]

Valuation of suit:
Valuation in the plaint determines the pecuniary Jurisdiction,
allegations made in the written statement are irrelevant.
[Radha vs Mohini, AIR 1975 All 368]

If it appears to the court that the allegation

made in the plaint is false, the court may require that plaintiff to prove
that the valuation is proper. "Mere change in the forum consequent on
the over-valuation or under-valuation of a suit will not be considered as
affecting the disposal of the suit on the merits. Over valuation or under
valuation which changes the forum of appeal from one court to another
does not make the
appellate decree a nullity and a mere change of forum for appeal is not
a prejudice contemplated by this section. Mere change in the forum
consequent on the over-valuation or under-valuation of a suit will not
be considered as affecting the disposal of the suit on the merits."
[Narayani vs Secretary of State, AIR 1918 Mad 590]

There are many cases where the subject-matter of a suit cannot be

satisfactorily valued such as in the case of restitution of conjugal right
or of removal of a trustee. Under S-9 of the Suit Valuation Act, 1887 the
High Court Division has power to make rules providing that any such
suit may be valued in a specified manner. In the absence of any such
rule, the plaintiff's valuation has to be accepted.
[Star Film Distributor vs Sargam Picture, 6 DLR 466]

Power and duty of court: O-7, R-10:

Usually, a court will accept a valuation of the plaintiff in the plaint and
proceed to decide the suit on merits on that basis. If the plaintiff
deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaintiff cannot be said to be correctly valued
and it is the duty of the court to return it to be filed in the proper
court. If it appears to the court that the valuation is falsely made in the
plaint for the purpose of avoiding the jurisdiction of the proper court,
the court may
require the plaintiff to prove that the valuation is proper.
[Order 7, Rule 10]
Place of suing as to territorial Jurisdiction of Court
For the purposes of territorial jurisdiction
of a court, suits may be divided into four classes:
(a) Suits for immovable property (S-16 to 18),
(b) Suits for movable property (s-19),
(c) suits for compensation for wrongs [s-16(e), s-19]; and
(d) Other suits [s-20]

(a) suits for immovable Property: s-16 to 18

Sections 16 to 18 deal with suits relating to immovable property.

S-16: Suits to be instituted where subject-matter situate-

Section 16 deals with the following kinds of suits: RPFDCR

(a) for the Recovery of immovable property with or without rent or

profits,
(b) for the Partition of immovable property,
(c) for Foreclosure, sale or redemption in the case of a mortgage of or
charge upon immovable property,
(d) for the Determination of any other right to or interest in immovable
property,
(e)for Compensation for wrong to immovable property,
(f) for the Recovery of movable property actually under distraint or
attachment, (ceized for payment or rent)

shall be instituted in the Court within the local limits of whose

jurisdiction the property is situate, or, in the case of suits referred to in
clause (c)[for Foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property] at the place where the cause of action has wholly or
partly arisen;

Provided that a suit to obtain relief respecting, or compensation for

wrong to, immovable property held by or on behalf of the defendant
may, where the relief sought can be entirely obtained through his
personal obedience, be instituted
★either in the Court within the local limits of whose jurisdiction the
property is situate, or, ★in the case of suits referred to in clause (c), at
the place where the cause of action has wholly or partly arisen, or
★in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business, or
personally works for gain.

Explanation.-In this section "property' means property situate in

Bangladesh.

S-17: Suits for immovable property situate within jurisdiction of

different Courts-
(i) Where a suit is to obtain relief respecting, or compensation for
wrong to, immovable property
(ii) the property is situate within the jurisdiction of different Courts,

the suit may be instituted in any Court within the local limits of whose
jurisdiction any portion of the property is situate;

Provided that, in respect of the value of the subject-matter of the suit,

the entire claim is cognizable by such Court.

S-18: Place of institution of suit where local limits of jurisdiction of

Courts are uncertain-
Section 18 provides that where it is not possible to say with certainty
that the property is situate within the jurisdiction of the one or the
other of the several courts.

(i) Any one of those courts may proceed to entertain and dispose of the
suit;
(ii) a statement will be recorded to that effect;
(iii) the decree in this suit shall have the same effect as if the property
were situated within the local limits of its jurisdiction;
(iv) the court must have pecuniary jurisdiction in the suit.
(b) suits for Moveable property:
S-19: Suits for compensation for wrongs to person or movables-
Where a suit is for compensation for wrong done to the person or to
movable property,
★ if the wrong was done within the local limits of the jurisdiction of
one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction of
another Court,

the suit may be instituted at the option of the plaintiff in either of the
said Courts.

Illustrations:
(a)A, residing in Chittagong beats B in Dhaka. B may sue A either in
Dhaka or in Chittagong.

(b) A, residing in Chittagong publishes in Dhaka statements defamatory

of B. B may sue A either in Dhaka, or in Chittagong.
S-20: Others suits to be instituted where defendants reside or cause of
action arises-
Section 20 provides for all other cases which have not been covered by
the foregoing rules. At the plaintiff's option, these suits may be filed in
any of the following courts, viz.,
(i)Where the cause of action, wholly or partly arises: or
(ii) Where the defendant resides, or carries on business or personally
works for gain; or
(iii) Where there are two or more defendants, any of them resides or
carries on business or personally works for gain,
provided that in such case,
(a) either the leave of the court is obtained; or
(b) the defendants who do not reside or carry on business or personally
work for gain at that place acquiesce in such institution.

Illustrations:
(a) A is a tradesman in Dhaka. B carries on business in Chittagong. B, by
his agent in Dhaka, buys goods of A and requests A to deliver them to
the Bangladesh Biman. A delivers the goods accordingly in Dhaka. A
may sue B for the price of the goods either in Dhaka, where the cause
of action has arisen, or in, where B carries on business.

(b) A resides at Cox's Bazar, B at Dhaka and C at Chittagong. A, B and C

being together at Khulna, B and C make a joint promissory note payable
on demand, and deliver it to A. A may sue B and C at Khulna, where the
cause of action arose. He may also sue them at Dhaka, where B resides,
or at Chittagong, where C resides; but in each of these cases, if the
non-resident defendant objects, the suit cannot proceed without the
leave of the Court.

★Selection of forum
lt is a well-settled principle that consent can neither confer nor take
away jurisdiction of a competent court. In case of ouster of
jurisdiction of a court, the same principle applies. Where the court has
jurisdiction, neither consent, nor waiver, nor estoppels nor
acquiescence can oust it. An agreement to oust absolutely the
jurisdiction of a competent court is void, being against public policy.

Jurisdiction as to subject matter

Different courts have been empowered to decide different types of
suits. Certain courts have no Jurisdiction to entertain certain suits.
Where a court has no Jurisdiction over the subject matter of a suit,
there is inherent lack of jurisdiction and a decree passed, judgment
rendered or order made is a nullity.

Objection as to jurisdiction
S-21 of the Code 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."

Competence of a court to try a case goes to the very root of the

jurisdiction; and where it is lacking, it is a case of inherent lack of
jurisdiction. But, an objection as to the local jurisdiction of a court can
be waived and this principle has been recognised by section 21 of the
Code.

For the application of S-21 of the Code, the following conditions

must apply:
(a)The objection was taken in the court of first instance;
(b) It was taken at the earliest possible opportunity and in cases where
issues are settled at or before settlement of issues, and
(c) There has been a consequent failure of justice.

All these three conditions must coexist.

Section 21 does not preclude the objection if the trial court has not
given a verdict on the merits. Even though S-21 in terms does not
apply to execution proceedings, the principle applies to the execution
proceedings. "
Place of suing at a glance

1. Pecuniary Jurisdiction-
Every suit.
Place of suing: Court of lowest grade competent to try it. [S-15]

2. Suits for: RPFDCR

(a) Recovery of;
(b) partition of
(c) Foreclosure, sale or redemption of mortgage of or charge upon:
(d) Determination of any
other right to or interest in;
(e) Compensation for wrong to immovable property.

Place of suing: Court within which the property is situated. [S-16(a)-(e)]

also for (c)- where the cause of action has arisen wholly or in part.

3. Recovery of moveable property under actual distraint or attachment.

Place of suing: Court within which the immoveable property is situate.
[S-16(f)]
4. Suit for-
(i) Relief respecting of; or
(ii) Compensation for wrong to-
-immoveable property held by or on behalf of the defendant, where the
relief sought can be entirely obtained through his personal obedience.

Place of suing: Court within which whose jurisdiction-

(i) the property is situate; or
(ii) the defendant resides, or carries on business or personally works for
gain. [proviso of S-16]

5. Suit for
(i) Relief respecting of; or
(ii) Compensation for wrong to-
-immoveable property situate within the jurisdiction of different courts.

Place of suing: Any Court within whose jurisdiction portion of the

property is situate provided that the entire claim any is within the
pecuniary jurisdiction of such court. [S-17]
6. Where it is uncertain within the jurisdiction of which of two or more
courts of any immoveable property is situate.

Place of suing: any of the courts,

Provided that the court having pecuniary jurisdiction and jurisdiction as
regards the subject matter of suit. [S-18]

7. Compensation for wrong to-

(i) person, or
(i) movable property-

-if the wrong is done within the jurisdiction ofone Court and the
defendant resides or carries on business,
or personally works for gain within the jurisdiction of any other court.

Place of suing: in either of the courts at the option of the plaintiff. [S-19]

8. Any other suit-

Place of suing:
(i) Where the cause of action wholly or partly arise; or
(ii) the defendant resides, carries on business or personally works for
gain; or
(iii) where there are two or more defendants, where any one of them
resides, carries on business, or personally works for gain,
Provided that -
(a) either the leave of the court is obtained; or
(b) The defendants who do not reside, carry on business or personally
work for gain acquiesce. [S-20]

@Gargi Das

ধারা ২১- এখতিয়ারের আপত্তি

যে আদালতে প্রথমে suit দায়ের করা হয়, সেই আদালতে প্রথম সম্ভাব্য সুযোগ এবং
বিচার্য বিষয় নির্ধারণ করার সময় বা পূর্বে, আদালতের এখতিয়ার সম্পর্কি ত কোন
আপত্তি উত্থাপন করতে হবে।

যদি তা না করা হয়, এবং ন্যায় বিচারের উদ্দেশ্য ব্যাহত না হলে কোন আপীল বা
রিভিশন আদালত মামলা দায়েরের স্থান সম্পর্কে কোন আপত্তি মঞ্জুর করবে না।

কিন্তু ন্যায় বিচার ব্যাহত হলে এবং ন্যায় বিচারের স্বার্থে, আপীল বা রিভিশনের সময়,
আদালত এখতিয়ার সংক্রান্ত আপত্তি গ্রহণ করতে পারবে।

এই হল ২১ এর মূল কথা।
এই প্রক্রিয়াটি ডিক্রি কার্যকরের সময়েও প্রযোজ্য।

যদিও এটি ধারা ২১ এ বলা নেই। তবে এটি কেস ল থেকে এসেছে