Judgment:
(Prayer: These Petitions are filed Under Articles 226 and 227 of the Constitution Of India R/W S.482 Of Cr.P.C., Praying to Quash Annexure-E, the attachment Warrant as Required Under Section 83 of Criminal Procedure Code Passed On 21.10.2014 in C.C.Nos.9/2011, and 10/2011 On the file Of Hon'ble Metropolitan Magistrate, Room No.10, Patiala House Court, New Delhi and Direct the Petitioners to Appear before the Court Of Metropolitan Magistrate, Patiala House Court, New Delhi and to Prosecute the C.C.Nos.9/2011 and 10/2011.)
1. Challenge in these writ petitions is to Annexure-E, passed by the Metropolitan Magistrate, Patiala House, New Delhi. The relevant portion of Annexure-E reads thus:
"IN THE COURT OF MS. JASJEET KAUR, CIVIL JUDGE-I/MM,
PATIALA HOUSE COURTS: NEW DELHI
ORDER OF ATTACHMENT TO COMPEL THE APPEARANCE OF A PERSON
ACCUSED
(See section 33)
ASIA PRAGATI CAPFIN PVT. LTD.
V/S
M/S. CITIGREEN FARMS PVT. LTD.
C.C.NO.09/11 AND 10/11
U/s 138 N.I.Act
P.S. - PARLIAMENT STREET
WHEREAS Complaint has been made before me that Mr. B. Ravishankar, S/o Shri Radha Ramana, Director M/s Citigreen Farms Pvt. Ltd. N-2, 1st Floor, 24th Main, J P Nagar 1st Phase Bangalore - 560078 also at:- No.97, III Cross, Dollars Colony, BTM l 5t Phase, Bangalore - 560068 has committed or suspected to have committed the offence of Punishable under section 138 N.I.Act and it has been returned to a Warrant of arrest thereupon issued that the said accused has absconded for is concealing himself to avoid the service of said warrant) and thereupon a proclamation has been or is being duly issued and published requiring the said accused to appear to answer the said charge within 30 days and whereas the said accused is possessed of the following property other than and paving revenue to Government in the village (or town) and another has been made for the attachment thereof.
You are hereby required to attach the said Property by secure and to note the same under attachment pending the further order of this Court and to remain this warrant and an endorsement certifying the manner of its execution.
Dated this 07th day of November, 2014.
Seal
Metropolitan Magistrate
New Delhi."â
2. Sri H. Ramachandra, learned advocate, contended that since the petitioners are having registered office and residence in Bengaluru and as the attached properties vide Annexure-E are situated in Bengaluru, these writ petitions are maintainable.
3. The jurisdiction to issue a writ is conferred under Article 226 of the Constitution of India. Article 226(2) of the Constitution, provides that, if 'cause of action' has arisen in more than one Court, any of the Courts, where part of 'cause of action' arose will have jurisdiction to entertain the writ petition. For the purpose of Article 226(2), "cause of action", for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure.
4. 'Cause of action' is a fundamental element to confer the jurisdiction upon any Court and the same should be proved by the petitioner before the Court. In STATE OF BOMBAY Vs. NAROTTAMDAS JETHABHAI AND ANOTHER, AIR 1951 SC 69i, Apex Court has held as follows:â
â14â¦.The jurisdiction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in criminal cases on the commission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters."
5. Since Annexure-E was passed by the Metropolitan Magistrate, Patiala House, New Delhi, the primary question, which arises for consideration is as to whether this Court has the jurisdiction in the matter?
6. Respondent No.3 having filed C.C. Nos.9/2011 and 10/2011, in the Court of Metropolitan Magistrate, Patiala House, New Delhi, against the petitioners, the attachment vide Annexure-E was ordered by the said Court. Merely because Annexure-E was served on the petitioners in bengaluru, where the first petitioner has the registered office and the other petitioners have residence, the same cannot have any relevance, since, the entire cause of action has arisen within the jurisdiction of the Delhi High Court.â
7. In OM PRAKASH SRIVASTAVA Vs. UNION OF INDIA, (2006) 6 SCC 207, Apex Court, with regard to the 'cause of action' has held as follows:
â12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his light to the judgment of the court. Every fact, which is necessary to be proved as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (emphasis supplied)
8. In STATE OF RAJASTHAN Vs. SWAIKA PROPERTIES, (198b) 3 SCC 217, the facts were that the respondent-Company having its registered office in Calcutta owned certain land on the outskirts of Jaipur City, was served with notice, for acquisition of land under the Rajasthan Urban Improvement Act, 1959. Notice was duly served on the Company at its registered office in Calcutta. The Company, first appeared before the Special Court and finally filed a writ petition before the Calcutta High Court, challenging the notification of acquisition. The matter ultimately came before the Apex Court, to answer a question as to, whether the service of notice under Section 52(2) of the Rajasthan Urban Improvement Act, 1959, at the registered office of the Respondent in Calcutta was an integral part of cause of action and was it sufficient to invest the Calcutta High Court with a jurisdiction to entertain the petition challenging the impugned notification. Answering the question, it has been held as follows:
"7. Upon these farts, we are satisfied that the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had no jurisdiction to issue a rule nisi on the petition filed by the respondents under Article 226 of the Constitution or to make the ad interim ex parte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub-section (5) of Section 52 of the Act the appellants were entitled to require the respondents to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so, take immediate steps to secure such possession under sub-section (6) thereof.
8. The expression 'cause of action' is tersely defined in Mulla's Code of Civil Procedure:â
The "cause of action" means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court.'
In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of notice under Section 52(2) of the Act on the respondents at their registered office at 18-B, Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated 8-2-1984 issued by the State Government under Section 52(1) of the Act became effective the moment it was published in the Official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for th'3 respondents to plead the service of notice on them by the Special Officer, Town Planning Department, Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose." (emphasis supplied)â
9. In ALIGARH MUSLIM UNIVERSITY Vs. VI NAY ENGINEERING ENTERPRISES (P) LTD., (1994) 4 SCC 710, Apex Court has held that, only because the office of the firm was situated at a particular place, High Court of that place could not exercise any jurisdiction. It is relevant to notice the observations made therein, which reads as follows:
"We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows that the litigation filed in the Calcutta High Court was thoroughly unsustainable."
10. In NAKUL DEO SINGH Vs. DY. COMMANDANT, (1999) 3 KLT 629 (FB), while considering the question as to whether receipt of an order passed by an Appellate Authority in a disciplinary proceeding would constitute cause of action, upon noticing the definition thereof in Mulla's Code of Civil Procedure, 15th Edition, Volume I at Page 251 and also a decision of the Court of Appeal in Paragon Finance vs D.B. Thakerar and Co., reported in (1999) 1 All ER 400 (CA), it has been held as follows:
"The fact that a person who was dismissed from service while he was in service outside the State would have to suffer the consequence of
that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment. Similarly, when an appealis filed by him to an Appellate Authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the Appellate Authority, the merger in the decision of the Appellate Authority takes place when the appeal is dismissed and not when the appellant, receives the order. What a writ petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed wholly or in part and net the fact that the order was communicated to him. That plea is relevant only to show when the right of action arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Art. 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal." (emphasis supplied)
11. In UNION OF INDIA Vs. ADANI EXPORTS LTD., (2002) 1 SCC 567, with regard to the facts which gave rise to a cause of action, so as to confer a territorial jurisdiction on the Court concerned, it has been held as follows:
"It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents- in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned."(emphasis supplied)
12. From the above decisions, it is evident that to constitute the territorial jurisdiction, the whole or part of 'cause of action' must have arisen within the jurisdiction of the Court and the same must be decided on the basis of the averments made in the petition.
13. It is trite that, only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain a writ petition under Article 227 of the Constitution, unless it is established that the earlier cause of action did not arose within the jurisdiction thereof.â
14. Perused the writ petition and the annexures, relied upon by the petitioners. The deed of settlement vide Annexure-A was entered into by the parties, on 14.12.2012, at New Delhi. According to the petitioners, certain payment was made subsequently to respondent No.3. Proceedings have been initiated in C.C. Nos.9 and 10 of 2011, in the Court of Metropolitan Magistrate, Patiala House, New Delhi, for an offence under Section 138 of the Negotiable Instruments Act, 1881, by the 3rd respondent and an order having been passed, order of attachment compelling the appearance of the petitioners vide Annexure-E was passed on 07.11.2014. Thus, it is clear that the whole of the cause of action has arisen within the jurisdiction of the Delhi High Court. Not even a fraction of cause of action has arisen within the jurisdiction of this Court, to enable the petitioners to invoke the writ jurisdiction of this Court i.e., with reference to Clause (2) of Article 226 of the Constitution. Considering the entire facts of the case narrated in the writ petition and the impugned order of attachment vide Annexure-E, on account of want of territorial jurisdiction, these writ petitions filed to quash Annexure-E cannot be entertained.
15.Alternatively, Sri H. Ramachandra, submitted that these petitions with regard to the prayer for issue of mandamus is maintainable. To examine the said submission, it is necessary to notice the prayer made in that regard, which reads as follows:
â(ii)Â A writ in the nature of mandamus or any other suitable writs orders, directions etc. directing the petitioners to appear before the court of Metropolitan Magistrate, Patiala House Court, New Delhi and to prosecute the C.C. No.9/11 and 10/11."
16.Mandamus literally means a command. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. Mandamus is issued against a person who has a legal duty to perform but has failed to do so. A legal duty emanates from either in discharge of a public duty or by operation of law. Mandamus is required to be granted in cases where law has established no specific remedy and there is failure to perform the legal duty despite demand made in that regard.
17. Keeping in view the factual background of the instant case, the aforementioned prayer is misconceived. From the prayer, noticed supra, it is clear that the petitioners are seeking mandamus against themselves. It is on account of the failure of the petitioners to appear in C.C.Nos.9/2011 and 10/2011, Annexure-E was passed. Impugned order does not come in the way of the petitioners appearing in the Court which has passed the same and seek remedy. That apart, Ss.397, 401 and 482 of Cr.P.C. could also be invoked. Hence, the petitioners are not entitled to the alternate relief sought, noticed supra.
For the foregoing, these petitions being devoid of merit, shall stand rejected. Ordered accordingly.