Devinder Gupta, C.J.
1. Question of law referred to Division Bench by learned Single Judge while hearing revision petition is as to whether a Court, which lacks jurisdiction to try a case, territorial or otherwise, can assume jurisdiction on concession of parties or on submission to the Court's jurisdiction by defendant.
2. Facts in brief are that the second respondent filed a suit for recovery of damages against the Petitioner-Bank at Visakhapatnam stating in the plaint that the Court at Visakhapatnam has jurisdiction to entertain and try suit since the cause of action had arisen in Visakhapatnam. Petitioner (second defendant in the suit) filed written statement and an objection was taken that the Court has no territorial jurisdiction to entertain the suit as no transaction took place at Visakhapatnam. Thus, while filing written statement the petitioner did question the territorial jurisdiction of the Court to entertain and try the suit. Issues were framed but it appears that no issue was framed on the preliminary objection raised by the petitioner, as to whether Courts at Visakhapatnam have or have not jurisdiction try the suit. Issue as regards Court's territorial jurisdiction to entertain and try the suit was framed subsequently as an additional issue at the stage when the suit had already been set down for trial. The plaintiff was examined and was also cross-examined. At a stage when one of the witnesses was under cross-examination, which was adjourned from time to time, that on 12.2.2002 an application under Order XIV Rule 2 read with Section 20 of the Code of Civil Procedure was filed by the petitioner praying that the additional issue framed, whether the Court has got territorial jurisdiction to try the suit, be decided as a preliminary issue. By an elaborate order, the learned District Judge dismissed the application on the ground that once written statement has been filed by the defendants advancing their defence, they have submitted to the jurisdiction of the Court and are prepared to take decision of the Court on merits, therefore, they are precluded to object to the Courts jurisdiction. The other ground of rejection of the application was that the suit was at the stage of cross-examination of witnesses and, therefore, it was not appropriate to take up the additional issue of territorial jurisdiction as a preliminary issue. While dismissing the application, the Court also observed that it has got territorial jurisdiction. Feeling aggrieved, revision was filed in this Court, which came up before the learned Single Judge.
3. On behalf of the respondent, judgment of this Court in F.E.S. Ship Co. v. Koika Trading Co., 1978 (2) ALT 17, was relied in support of the impugned order that filing of written statement by the defendant amounts to submission to the jurisdiction of the Court and the defendant was precluded from raising the objection as regards territorial jurisdiction of the Court. The learned Single Judge unable to agree with the view and has referred the question to the Division Bench. The reference has been made on the point, whether jurisdiction, territorial or otherwise, can be assumed by the Court merely on the concession of the parties.
4. Law is well settled and was reaffirmed by the Supreme Court in Kiran Singh v. Chaman Paswan, : [1955]1SCR117 , that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.
5. Question before us is whether Court can assume jurisdiction merely on the concession of parties. Consent or waiver can cure defect of territorial jurisdiction but cannot cure inherent lack of jurisdiction. In Hira Lal Patni v. Sri Kali Nath, : [1962]2SCR747 , it was held that consent of parties could not operate to confer jurisdiction on a Court, which was incompetent to try the suit. But the objection as to the territorial jurisdiction of the Court is one, which does not go to the competence of the Court and can, therefore, be waived. Objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try case. 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. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.
6. The aforementioned view was reaffirmed by the Supreme Court in Bahrein Petroleum Co., Ltd. v. P.J. Pappu, : (1966)IILLJ144SC , saying that as a general rule, neither consent or waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Code of Civil Procedure 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 Section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 - 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.
7. In a more recent case in Globe Transport Corporation v. Triveni Engineering Works, : (1983)4SCC707 , it was held that it is not competent to the parties by agreement to invest a Court with jurisdiction which it does not otherwise possess but if there are more than one forums where a suit can be filed, it is open to the parties to select a particular forum and exclude the other forums in regard to claims which one party may have against the other under a contract.
8. The aforementioned decisions of the Supreme Court would thus show that the view taken by a learned Single Judge in F.E.S. Ship Co. v. Koika Trading Co., case (supra) that mere filing of written statement raising an objection as to the territorial jurisdiction would amount to submission to the Court's jurisdiction cannot be said to be the correct law.
9. With the consent of the parties, not only on the question referred to has been heard but on merits of the revision also we have heard them.
10. The law as it applied on the date required written statement to be filed on the first date of hearing. There is no stage in proceedings of the suit where written statement should be filed in parts. Written statement must be filed by the defendant meeting the entire case of the plaintiff on merits and raising all legal and other issues. Written statement cannot be filed in parts. Whether defence to the suit is on facts or on law, defence has to be raised in the same written statement. Filing of the written statement is the only stage when the defendant is expected for the first time to raise all legal objections, including objection as regard lack of territorial jurisdiction or jurisdiction as regards the subject-matter of the litigation. Raising of such an objection in the written statement and filing written statement on merits cannot by any means be termed as submission to the jurisdiction of the Court. The defendant can be said to have submitted to the jurisdiction of the Court when he fails to raise such an objection at the first available opportunity. When such an objection is not raised in the written statement, it can be said that having failed to raise such an objection, at the first available opportunity, the defendant has submitted to the jurisdiction of the Court or has acquiesced to its jurisdiction or is precluded to question the territorial jurisdiction of the Court. When objection as regards territorial jurisdiction of the Court is taken in written statement, it will not amount to waiving of the objection of territorial jurisdiction of the Court. Such filing of written statement and raising objection as regards the territorial jurisdiction does not fall under Section 21 of the Code of Civil Procedure.
11. In Bahrein Petroleum Co., Ltd. case, it was held that waiver of right to raise objection about the territorial jurisdiction as recognised under Section 21 of the Code of Civil Procedure is limited to the objections in the appellate and revisional Courts. In other words, when at the earliest opportunity objection has not been raised, a party cannot thereafter be permitted to raise the objection in the absence of prejudice, which is not the situation in the instant case. Objection has been raised by the defendant in the written statement at the earliest opportunity and an issue has also been framed. The only request made by the defendant was to treat the said issue as a preliminary issue.
12. Order XIV Rule 2(2) of the Code of Civil Procedure says that when issues both of law and of fact arise in the suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force. First part relates to territorial jurisdiction and the second part relates to bar created by any law for the Civil Court to entertain and try the suit. At the earliest opportunity, the petitioner did not claim issue of territorial jurisdiction to be tried as a preliminary issue. The suit was set down for trial. Prayer was made subsequently to decide the issue of territorial jurisdiction as a preliminary issue, which the Trial Court declined to decide on the ground that the suit was at the trial stage. Therefore, no interference would be called for in revision in the manner of exercise of jurisdiction by the Trial Court. The Trial Court, however, was not justified in observing that it had got territorial jurisdiction to try the suit, while it dismissed the application for treating the issue of territorial jurisdiction as a preliminary issue, since the said issue was not yet tried on merits.
13. Order VII, Rule 10 of the Code of Civil Procedure empowers was enables a Court to return the plaint 'at any stage of the suit' to be presented to the Court in which the suit ought to have been instituted. The words 'at any stage of the suit' would mean even after the trial has begun and concluded but before the judgment is delivered.
14. Thus, while answering the question of law referred that neither consent nor waiver can cure the defect of inherent lack of jurisdiction and consent of parties cannot operate to confer jurisdiction on a Court which has no competence to try it, whereas territorial jurisdiction can always be assumed by the Court when such an objection is waived by the part on the principles as laid down in Section 21 of the Code of Civil Procedure. Independently of Section 21 of Code of Civil Procedure defendant may also waive the objection as regards defect in territorial jurisdiction and will be subsequently precluded from taking the objection.
15. In view of the aforementioned discussion, while demising the revision petition and answering the question aforementioned, we direct that the trial of suit will proceed in accordance with law till conclusion of the proceedings. But, in case, the Trial Court would come to the conclusion on the preliminary issue framed in the case as regards the territorial jurisdiction that it has got no territorial jurisdiction to entertain and try the suit, it shall follow the procedure as laid down in Order VII, Rule 10 of the Code of Civil Procedure by returning the plaint to the plaintiff for being presented in appropriate Court of law and in that eventuality, it will not proceed to decide the other issues on merits.