Civil Appeal No 564 of 1970
Appeal by special leave from the judgment and decree dated the 3rd April 1969 of the Kerala High Court in SA No 266 of 1968
AS Nambiyar for the Appellants
KT Harindra Nath N Sudhakaran and MRK Pillai for Respondent No 1
The Judgment of the Court was delivered by KOSHAL J
This appeal by special leave is directed against the judgment dated 3rd of April 1969 of the High Court of Kerala rendered in a Second Appeal arising from a suit for partition of immovable property
The suit was filed in the Court of Munsiff at Parappanangadi in the year 1938
That Court passed a preliminary decree for partition on the 18th February 1940 and thereafter the parties took no further interest in the matter for more than two decades
In the mean time the High Court passed an order dated December 22 1956 redefining the territorial limits of the Courts of Munsiffs functioning in district Calicut of which the Court of Munsiff at Parappanangadi was one
According to that order the territory in which the property disputed in the suit was situated came under the territorial jurisdiction of the Munsiff s Court at Manjeri and it was in that Court that the plaintiff filed on the 18th January 1966 an application IA No 109 of 1966 praying that a final decree in the suit be passed
Defendant No 12 who is now dead and is represented in this appeal by respondents No 1 and Ors immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappananagadi
The objection was overruled by the Manjeri Court which proceeded to partition the property by metes and bounds and ultimately passed a final decree in that behalf on 9th July 1968
An appeal was filed 185 against final decree by defendant No 12 in the Court of District Judge before whom the objection to the jurisdiction assumed by the Manjeri Court was again taken but was repelled with the result that the final decree was confirmed
The third round of litigation in regard to question of jurisdiction took place in the High Court wherein a learned single Judge upheld the objection and ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application praying for final decree and that the assumption of such jurisdiction by the Manjeri Court was not justified
The objection being upheld the final decree was set aside and there was thus no occasion for the High Court to decide the other points arising in this appeal
We have heard learned counsel for the parties on the question of jurisdiction
An unfortunate aspect of this litigation has been that although that question has been agitated already in three courts and has been bone of contention between that parties for more than a decade the real provision of law which clinches it was never put forward on behalf of the appellant before us nor was adverted to by the learned District Judge or the High Court
That provision is contained in sub section 1 of Section 21 of the Code of Civil Procedure which runs thus 21 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 where issues are settled at or before such settlement and unless there has been a consequent failure of justice In order that an objection to the place of suing may be entertained by an appellate or revisional court the fulfilment of the following three conditions is essential 1 The objection was taken in 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
Now in the present case conditions Nos 1 and 2 are no doubt fully satisfied but then 186 before the two appellate Courts below could allow the objection to be taken it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out
Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred
We called upon learned counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any
In this view of the matter we must hold that the provisions of sub section above exracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded
We therefore refrain from going into the question of the correctness of finding arrived at by the High Court that the Manjeri Court had territorial jurisdiction to take cognizance of the application praying for final decree
In the result we accept the appeal set aside the judgment of the High Court and remand the case back to it for deciding on merits the appeal which culminated in that judgment
As the proceedings for the final decree have been pending since 1966 we further direct that the High Court shall decide the appeal last mentioned at the earliest possible and in any case within three months from the receipt of the records from this Court
The Registry shall take immediate steps to have the records despatched to the High Court
There will be no order as to costs
SR Appeal allowed


Summary:
In a suit for partition of immovable property filed in the Court of Munsiff Parappanangadi in the year 1938 that Court passed a preliminary decree for partition on the 18th February 1940
The parties to the suit took no further interest in the matter for more than two decades
In the meantime according to the order of the High Court of Kerala dated December 22 1956 refining the territorial limits of the Courts of Munsiffs functioning in district Calicut of which the Court of Munsiff at Parappanangadi was one the suit property came under the territorial jurisdiction of the Munsiff s Court at Manjeri
The plaintiff on the 18th January 1966 filed an application praying that a final decree the suit be passed
Defendant No 12 immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappanagadi
The objection was overruled by the Manjeri Court which proceeded to partition the property metes and bounds and ultimately passed a final decree in that behalf on 9th July 1968
An appeal filed against the final decree by defendant No 12 failed but he succeeded before learned single Judge of the Kerala High Court who ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application and the final decree was set aside
Hence the appeal by special leave
Allowing the appeal the Court  HELD 11
In order that an objection to the place of suing may be entertained by any appellate or revisional Court the fulfilment of the following three conditions is essential according to the provisions contained in sub section 1 of section 21 of the Code of Civil Procedure i The objection was taken in the Court of first instance ii it was taken at the earliest possible opportunity and in case where issues are settled at or before such settlement iii there has been a consequent failure of justice
185 F G 12
In the present case conditions Nos 1 and 2 are no doubt fully satisfied but before the two appellate Courts below could allow the objection to be taken it was further necessary that a case of failure of justice on account of the place suing having been wrongly selected was made out
Since the respondents failed to point out even before this Court that a failure of justice had occurred by reason 184 of Manjeri having been chosen as the place of suing the provisions of sub section 1 of section 21 of the Code of Civil Procedure made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded
185 H 186 A C