This article is useful to know why NRI should not file case at any place except where property is located. Only that court in whose jurisdiction property is located can try property related case. If property case is filed in wrong court, the opposite side can take objections under section 21 of CPC.
Jurisdiction means the power of a court to adjudicate upon a matter. Territorial jurisdiction means the territorial limits of the court which is to decide particular matter. Civil court in India always has jurisdiction to decide any question of jurisdiction under section 21 of the code of civil procedure. For Non-Resident Indians (NRI), knowledge as to whether a particular suit can be instituted at a particular place in India is of utmost importance. This is so because the respondent can take an objection the a suit can not be filed at a particular place. An objection under section 21 of the code of civil procedure refers to an objection as to the place of suing.
Section 21 - Objections to jurisdiction
(1) 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 were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of jurisdiction 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 sues are settled, at or before such settlement, and unless there has been a consequent failure justice.
(3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
Although section 21 refers to objections as to place of suing, section 21 also aims to prevent the technicalities regarding local jurisdiction in the orders passed by civil court. In other words, if in a decision of the court, there is no failure of justice, then the technicalities in civil law regarding jurisdiction should not prevail over substantive law. This means that the defect of jurisdiction is not considered to be fundamental under the code of civil procedure and is mere irregularity in law. This section provides a rule for the guidance of the appellate or the revisional court and does not influence the trial court to decide the question of territorial jurisdiction.
This section can be used by the respondent or the defendant side to answer whether the defect in jurisdiction is a ground for dismissal of the suit or not. If the trial has taken place and order of the court has been passed, then in appeal, a party cannot raise the objection of territorial jurisdiction under section 21, unless such question has been raised and answered in the trial court to the first time. If the question has been raised the trial court as to the territorial jurisdiction of the court and the question has been decided against a party, the same question cannot be raised in the executing court but only in the appellate revisional court.
For example – suppose a Non-Resident Indian (NRI) having property dispute in Hoshiarpur wants to start litigation in Chandigarh High Court merely because he or she thinks that the suit will be better and quickly adjudicated. In case such suit is filed, it will be dismissed because the property itself is in Hoshiarpur and therefore the suit for the property dispute must be instituted in Hoshiarpur district court itself. Further, in rare cases only, High Courts in India have original jurisdiction.
The plea of the want of territorial jurisdiction can be entertained and be made at any stage of trial since the code itself does not mention at what stage of trial the plea of want of territorial jurisdiction has to be raised. The plea of territorial jurisdiction should be taken in trial court and if it has been taken trial court, the same can be taken in appellate or revisional court. However, it must be shown in the appellate or revisional court that because of want of territorial jurisdiction, the suit has been be judicially affected. This means that if objection as to the place of suing has been raised in the trial court can the same has been disallowed by the court, the judgement passed by the trial court shall not be disturbed by the appellate or the revisional court on the ground of territorial jurisdiction unless and until the trial in the wrong court has resulted in failure of Justice.