Sanju Panda, J.
1. These two Writ Petitions have been filed by the Petitioner to quash the proceedings initiated by Opposite Parties 2 to 4 which was registered as Civil Suit Nos. 22 and 24 of 2008 before the Learned Civil Judge (Senior Division), Champua.
Since the challenge made in these Writ Petitions are similar and the parties are same, both were heard together and are being disposed of by this common Judgment.
2. For convenience, the factual backdrop of the case from W.P.(C) No. 7559 of 2008 is stated below:
The Petitioner-Smt. Geetarani Mohanty along with Opposite Parties constituted a partnership firm in the name and style of M/s. Geetarani Mohanty on certain terms and conditions. Petitioner applied to the Government for grant of permission to transfer the mining lease in favour of the partnership firm. Government accorded the permission on 17.10.1992 and pursuant to the same, a tripartite transfer deed in Form-0 was executed between the Petitioner-Smt. Geetarani Mohanty (the original lessee), M/s. Geetarani Mohanty (the partnership firm) and the Government of Orissa (the lessor). Thereafter, Opposite Party No. 2 obtained some documents fraudulently behind the Petitioner-Smt. Geetarani Mohanty and those documents are a deed of retirement of the Petitioner- Smt. Geetarani Mohanty from the said partnership firm executed on 31st March, 1993 and a letter of resignation from the partnership firm on 3.8.1998 relinquishing her share in favour of Opposite Party No. 2 and illegally and unauthorisedly formed another partnership firm on 1.4.1993 comprising of himself, his father-Dushasan Sahoo and wife Smt. Suprasanna Sahoo, Opposite Parties 3 and 4 respectively. Said partnership firm continued in the name of the old partnership firm i.e. M/s. Geetarani Mohanty. Opposite Party No. 2 filed a suit before the Learned Civil Judge (Junior Division), Bhubaneswar against the Petitioner Smt. Geetarani Mohanty seeking a declaration that the Defendant was not a partner of Plaintiff's partnership firm M/s. Geetarani Mohanty and for permanent injunction restraining the Defendant from interfering with the business operation and administration activities of the firm and its ore mining area described in the schedule of the plaint. The said suit was registered as C.S. No. 49 of 2006. When the Petitioner received notice in the said suit, she came to know about the aforesaid fraudulent act committed by Opposite Party No. 2. In the said suit, the Petitioner appeared and stated that since the partnership deed dated 3.8.1991 is having a Clause of arbitration, the Learned Civil Judge (Junior Division), Bhubaneswar has no jurisdiction to entertain the suit as the same is barred by the provisions of the Arbitration and Conciliation Act, 1996. The Court below passed an order of status quo which was subsequently vacated. The Petitioner in order to safeguard her leasehold rights filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the Learned District Judge, Khurda through her power-of-attorney holder, who has filed the present Writ Petition. Said application was registered as ARBP No. 15 of 2008. The Learned District Judge, Khurda allowed the said application on 17.3.2008. Being aggrieved by the said order, Opposite Party No. 2 and Opposite Party Nos. 3 and 4 filed two separate Arbitration Appeals before this Court which have been registered as ARBA No. 7 of 2008 and ARBA No. 9 of 2008 and the same are pending for disposal. This Court on 20th March, 2008 directed that the interim order passed by the Learned District Judge, Khurda shall remain in force. The Petitioner filed another Writ Petition, i.e. W.P.(C) No. 5537 of 2008, praying for strict implementation of the grant dated 13.11.1993 as per the Government Grants Act in order to enforce her leasehold rights. In the said Writ Petition, by an Order Dated 21st April, 2008 a Division Bench of this Court directed that the Government Order Dated 17.10.1992 shall continue till 12th May, 2008 and the said order will not in any way affect the pending proceedings between the parties either before the Civil Courts or before the Appellate forum of this Court in proceedings under Section 9 of the Arbitration and Conciliation Act, 1996. While the matter stood thus, Opposite Parties 2 to 4 again filed a Civil Suit No. 22 of 2008 before the Learned Civil Judge (Senior Division), Champua on 22.4.2008 with the following prayers;
A. that a decree of declaration to be passed declaring the purported power of attorney dated 16th November, 2007 executed by the Defendant No. 1 in favour of the Defendant No. 3 as void and deliver the original to this Hon'ble Court for cancellation and whereupon to cancel the said power of Attorney;
B. pass a decree of permanent injunction restraining the Defendant No. 1 from exercising any right whatsoever in relation to Plaintiff firm pursuant to the partnership deed dated 3rd August, 1991 or in connection therewith and the Plaintiffs Firms assets and business including the mining lease whether directly and indirectly through any servant, agent, relatives, corporate entity or otherwise;
C. pass a decree of permanent injunction restraining the Defendant Nos. 3 and 4 and/or their servants, agents, representatives or any corporate entity in which either of or both Defendants 3 and 4 have or ever held any shares or are directors in the board, from in any manner acting on the power of attorney dated 16th November, 2007 or in respect of any alleged claim of the Defendant No. 1 as a partner or otherwise in the Plaintiff No. 1 firm in any manner whatsoever including in connection with the partnership deed dated 3rd August, 1991.
D. pass a decree of permanent injunction restraining the Defendants Nos. 3 and 4 and/or their servants, agents, representatives from in any manner whatsoever obstructing or interfering with the Plaintiffs right to carry on business of the Plaintiff No. 2 firm including, in respect of the mining lease....
3. Opposite Parties 3 and 4 also filed another suit on 5.5.2008 before the Learned Civil Judge (Senior Division), Champua which was registered as Civil Suit No. 24 of 2008 with the following prayer;
a. pass a decree declaring the Plaintiff Nos. 1 and 2 as valid and rightly partners of the partnership firm, M/s. Geetarani Mohanty having share of 25% each in respect of the said partnership firm;
b. Pass a decree of permanent injunction against Defendant No. 3 restraining her, her agents, assigns and representative not to interfere with the smooth and peaceful running of the business of the partnership firm M/s. Geetarani Mohanty in any manner whatsoever;
c. pass a decree imposing exemplary cost for losses and damages sustained by the Plaintiffs and Defendant No. 1 firm....
4. In W.P.(C) No. 7561 of 2003
In the light of the above facts and circumstances, the Petitioner has filed this Writ Petition for quashing of the proceedings in C.S. No. 24 of 2008 pending before the Learned Civil Judge (Senior Division, Champua).
5. The contentions of the Learned Counsel for the Petitioner is that from the above facts it is clear that the intention of the Opposite Parties 2 to 4 is only to harass the Petitioner by filing multiple litigations against the Petitioner and as the Petitioner is an old lady, it is difficult on her part to contest the matter through her power-of-attorney holder and in the above proceeding, they have also filed an interim application and the said Court is 400 kms. away from Bhubaneswar where the Petitioner is staying and the relief sought in the suits are contradiction/confrontation to the Order Dated 21.4.2008 passed by this Court and the Civil Judge (Senior Division), Champua has no territorial jurisdiction to try the suit and Opposite Parties 2 to 4 are abusing the process of law by filing civil suit which needs to be quashed by exercising the jurisdiction under Articles 226 and 227 of the Constitution of India.
The Learned Counsel for the Opposite Parties 3 and 4 submitted that as the dispute involved is civil in nature and the Plaintiffs have rightly filed the suits in the Civil Court as provided under Section 9 of the Civil Procedure Code, the suits need not be quashed.
6. Section 9 of the Civil Procedure Code provides that a Court is said to have jurisdiction of the subject matter of a particular controversy if the Court has authority to hear and decide causes of a class to which the particular controversy belongs and the Courts have emphasized that the jurisdiction of a Court depends upon the right to decide the case and not upon the merits of its decision. It is well settled that jurisdiction of the Court is to be determined on the basis of allegations made in the plaint. The pith and substance of the plaint allegations have to be kept in mind; so also, the pith and substance of the relief sought. It is the choice of the Plaintiff to choose his forum. It is another thing that the Plaintiff fails to establish his case before such forum. The plea of lack of jurisdiction can be raised at any time even in second appeal, so also on the execution side. The Courts have the jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. When a legal right and its infringement are alleged, a suit would lie, and unless there is-a bar against entertaining of such a suit, Civil Courts are bound to take cognizance of it. See : [1974]3SCR882 , Smt. Ganga Bai v. Vijay Kumar and Ors. The Apex Court has held that the expression 'expressly barred' means barred by any enactment for the time being in force. Section 11 of the Civil Procedure Code bars a Court from trying a suit in which the matter in issue is res judicata. Likewise, Section 47 of the Civil Procedure Code bars a decree-holder from filing a suit when he can file execution proceedings. So also Section 293 of the Income Tax Act, 1961 provides no suit shall be brought in any Civil Court to set aside or modify any assessment made under that Act. This shows that the statute creates a special right or liability and provides procedure for the determination of the right or liability and further lays down that all question about the said right or liability shall be determined by the tribunal so constituted under the statute and Court has to examine whether remedies are normally associated with the action in Civil Courts or prescribed by the statutes or not. Therefore, each case requires examination whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the Civil Court in respect thereof.
7. The normal rule of law is that Civil Courts have jurisdiction to try all suits of a civil nature except those of which cognizance by them is either expressly or impliedly excluded. Such exclusion is not to be readily inferred, the rule of construction being that every presumption should be made in favour of the existence rather than the exclusion of jurisdiction of the Civil Courts. See : [1966]59ITR73(SC) , Bharat Kala Bhandar v, Muni Committee, Dhamangaon. The burden to prove the exclusion is on the party who so contends.
8. In the present case, the Petitioner has, already, appeared in the civil suit and filed an application before the Learned Civil Judge (Junior Division), Bhubaneswar that the civil suit is not maintainable in view of the arbitration clause. He has also simultaneously taken recourse to the Arbitration Act. Since the normal rule is that the Civil Courts have the jurisdiction to try all suits of civil nature and as the Petitioner has raised the question of ouster of the jurisdiction of the Civil Court, he has to prove that the Civil Court has no jurisdiction to decide either proceeding which will depend on so many factors to be proved. This being a Writ Court, I will not go into the factual aspect of the matter and decide the maintainability of the suit. Therefore, I am not inclined to quash the Civil Suit Nos. 22 and 24 of 2008 pending before the Learned Civil Judge (Senior Division), Champua.
These Writ Petitions are accordingly dismissed being devoid of merit. No costs.