wp440.11.odt 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.440/2011 Amrut Kumar S/o Mahadeopradas Jaiswal -vs- Kanhyailal S/o Mewalal Jaiswal and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri R. K. Borkar, learned counsel for the petitioner. Shri V. R. Mundra, learned counsel for the respondents. CORAM : R. M. SAVANT, J. DATED : 04/08/2011. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 04/12/2010 passed by the learned Ad hoc District Judge-1, Gondia, by which order the Appeal filed by the respondent No.2 herein came to be allowed and the temporary injunction granted by the trial Court in Special Civil Suit No.60/2006 by order dated 12/10/2009 came to be vacated. The petitioner herein is the original plaintiff, who has filed the said Special Civil Suit No.60/2006 for declaration, permanent injunction and cancellation of sale deed in respect of the suit property being Plot No.906/1, area1660 sq.ft., which as per Municipal Record is 1843 sq.ft. It was the case of the petitioner herein that he is the grandson of one Mevalal, who was the owner of the property in question. It is further the case wp440.11.odt 2/6 of the petitioner that the respondent No.1 herein had no right to sell the property to the respondent No.2. The sale deed dated 15/03/2004, by which the respondent No.2 had acquired rights, has therefore been challenged and is sought to be set aside in the said suit. In so far as the respondent No.2 is concerned, he has purchased the property by the said sale deed dated 15/03/2004 from the respondent No.1, who is the legatee from one Thakurprasad Jaiswal, who was the son of Mahadevibai, the mother-in-law of Mevalal. The said Mahadevibai had purchased the property from Mevalal. The respondent No.1 herein filed an application for interim injunction in the said suit to protect his possession. The trial by its order dated 12/10/2009 allowed the said application. The trial Court as can be seen from the said order has reproduced the contentions which have been raised on behalf of the petitioner above named and has thereafter concluded with the petitioner has made a prima facie case for exercise of discretion in his favour. The said application for temporary injunction was accordingly allowed by the trial Court. Aggrieved by the said order dated 12/10/2009 passed by the trial Court, the respondent No.2 herein filed an Appeal in the District Court, as mentioned herein above the said Appeal came to be allowed and the order passed by the trial Court dated 12/10/2009 came to be set aside. The Appellate court on an appreciation of the material on record, which was wp440.11.odt 3/6 inter alia the revenue entries made in favour of the said Kanhaiyalal Jaiswal, as also the entries in the Municipal Register, as also the notice issued by the Municipal Council to the respondent No.2 reached a conclusion that the respondent No.2 was in possession of the property in question and, therefore, set aside the injunction granted by its order dated 12/10/2009. It is this order, which is impugned in the present petition. At the outset, the learned counsel assailed the order passed by the First Appellate Court on the ground that the Appellate Court did not have the jurisdiction to entertain the Appeal, as subject matter of the said suit was over Rs.2,00,000/- (Rs. Two Lacs Only) and that this Court would have the pecuniary jurisdiction to entertain the First Appeal filed against an interlocutory order. In so far as the said contention is concerned, the learned counsel appearing for the respondent No.2 placed reliance on two judgments of the Apex Court viz. the judgment reported in AIR 1966 Supreme Court 634 in the matter of Bahrein Petroleum Co.Ltd. v. P.J. Pappu and another of which judgment paragraph Nos.3 and 4 are relevant, which are reproduced here under - “(3) Counsel for the plaintiff-respondent submitted that it was open to the defendants to waive this objection and if they did so, they could not subsequently take the objection. This submission is well founded. As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a wp440.11.odt 4/6 Court, otherwise incompetent to try the suit. But S. 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under S. 21 is limited to objections in the appellate and revisional Courts. But S. 21 is a statutory recognition of the principle that the defect as to the place of suing under Ss. 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it, see Hira Lal Patni v. Sri Kali Nath, 1962-2 SCR 747 at pp. 751-752; (AIR 1962 SC 199 at p. 201). (4) Counsel for the plaintiff further submitted that, as a matter of fact, the defendants by their conduct have waived the objection. Though this submission found favour with the High Court, we are unable to accept it. If the defendant allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.” The next judgment is the judgment reported in AIR 2000 Supreme Court 102 in the matter of M/s. Vikas Motors Ltd. v. Dr. P.K. Jain. The underlying principle enunciated by the Apex Court in the said judgment is that if a party allows the trial wp440.11.odt 5/6 Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. The Apex Court has further said that it is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection. In the instant case no objection seems to have been taken by the petitioner to the District court hearing the First Appeal and only after finding that the decision has gone against him that now an objection is sought to be taken to the jurisdiction exercised by the District Court. No doubt the jurisdiction is of this Court in so far as the First Appeal is concerned, but what is to be considered is whether the petitioner herein by participation has acquiesced in the jurisdiction exercised by the District Court. In my view, the petitioner by his conduct had acquiesced in the exercise of jurisdiction by the District court. In that view of the matter, the contention of the learned counsel for the petitioner as regards jurisdiction would have to be rejected. In so far as the challenge to the order passed by the First Appellate Court on merits is concerned, it is required to be noted that the First Appellate Court has gone thread bare into the material on record, which as adverted herein above are the revenue entries, as also the Municipal Record, as also the wp440.11.odt 6/6 notice issued by Municipal Council to the respondent No.2 herein, the First Appellate Court in the fact situation of the present case was right in concluding that the Trial Court had erred in exercising the discretion in favour of the petitioner, in the light of the said documents, which prima facie show the possession of the respondent No.2. In that view of the matter, no case for interference is made out. The Writ Petition is accordingly dismissed. However, in the facts and circumstances of the case, the hearing of the suit, which is of the year 2006, is expedited. JUDGE KHUNTE