1.

Harshad Modi v DLF

When the plaint is filed in the proper court, after getting it back from the wrong court, it cannot be
said to be a continuation of the suit and the suit must be deemed to commence when a plaint is filed
in the proper court.

Section 16 of the CPC recognizes a well-established principle that actions against property should be
brought in the forum where such res is situated. A court within whose territorial jurisdiction the
property is not situated has no power to deal with and decide the rights and interests in such
property.

2. Hakam Singh vs Gammon (India) Ltd.- (Relevant Section: Code of Civil Procedure, 1908 -
Section 20)

A contract was entered into, which stated that, the “Contract shall be deemed to have been entered
into by the parties concerned in the City of Bombay and the Court of law in the City of Bombay alone
shall have jurisdiction to adjudicate thereon.” Disputes arose, and the appellant filed a petition at
the Court of Subordinate Judge at Varanasi, and the Trial Court held that, “the contract shall be
deemed to have been entered into by the parties concerned in the city of Bombay has no meaning
unless the contract is actually entered into in the city of Bombay, and that there was no evidence to
establish that it was entered into in the city of Bombay.” Allahabad High Court, exercising revisional
jurisdiction, held that clause in the contract was binding and only courts in Bombay had jurisdiction
to try the suit.

(Note- C.P.C., in its entirety, applies to the Arbitration Act, and the word “corporation” used in Order
29, includes all companies, and not just statutory corporations, as was argued by the appellants.)
The Supreme Court held the following, while upholding the H.C.’s judgment- “Since an application
for filing an award in respect of a dispute arising out of the terms of the agreement could be filed in
the Courts in the City of Bombay, both because of the terms of Clause 13 of the agreement and
because the respondents had their Head Office where they carry on business at Bombay, the
agreement between the parties that the Courts in Bombay alone shall have jurisdiction to try the
proceeding relating to arbitration was binding between them.”

3. A.B.C. Laminarts vs A.P. Agencies- (Relevant Section: Code of Civil Procedure, 1908 - Section
20)

Clause 11 of the Agreement between the parties stated the following- “Any dispute arising out of
this sale shall be subject to Kaira jurisdiction.” The respondent filed a suit in the Court of Subordinate
Judge at Salem, and the Trial Court held that it had no jurisdiction to entertain this suit. The High
Court set aside the judgment of the trial court with a direction to take the plaint on file and dispose
of the suit on merits on other issues.

The Supreme Court upheld the H.C.’s judgment, and held that, “When the clause is clear,
unambiguous and specific accepted notions of contract would bind the parties and unless the
absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards
construction of the ouster clause when words like 'alone', 'only, 'exclusive' and the like have been
used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio
unius est exclusio alterius' expression of one is the exclusion of another may be applied. What is an
appropriate case, shall depend on the facts of the case. In such a case mention of one thing may
imply exclusion of another. When certain jurisdiction is specified in a contract an intention to
exclude all others from its operation may in such cases be inferred. It has therefore to be properly
construed.”

“The question then is whether it can be construed to have excluded the jurisdiction of the Court at
Salem. In the clause 'any dispute arising out of this sale shall be subject to Kaira jurisdiction' ex facie
we do not find exclusive words like 'exclusive', 'alone, 'only' and the like. Can the maxim 'expressio
unius est exclusio alterius' be applied under the facts and circumstances of the case? The order of
confirmation is of no assistance. The other general terms and conditions are also not indicative of
exclusion of other jurisdictions.

Under the facts and circumstances of the case we hold that while connecting factor with Kaira
jurisdiction was ensured by fixing the situs of the contract within Kaira other jurisdictions having
connecting factors were not clearly, unambiguously and explicitly excluded. That being the position
it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction
under law through connecting factor of delivery of goods thereat was expressly excluded.”

Ratio Decidendi: "Court shall entertain matter unless jurisdiction is expressly excluded by relevant
clause of contract. The jurisdiction of the Court in matter of a contract will depend on the situs of the
contract and the cause of action arising through connecting factors."

4. Swastik Gases vs Indian Oil Corporation- (Relevant Section: Code of Civil Procedure,
1908 – Sections, 15-20)

Cause of Action arose partly in Jaipur and partly in Kolkata. Clause 18 of the agreement
stated that, “The Agreement shall be subject to jurisdiction of the courts at Kolkata.” But the
appellant made an application for appointment of arbitrator in Rajasthan High Court which
was challenged by the respondents who contended that only the Calcutta High Court had
jurisdiction, and the High Court sided with the respondents.

The Supreme Court held that the intention of the parties was to exclude the jurisdiction of
courts outside Calcutta.
R.M. Lodha- “It is a fact that whilst providing for jurisdiction clause in the agreement the
words like 'alone', 'only', 'exclusive' or 'exclusive jurisdiction' have not been used but this, in
our view, is not decisive and does not make any material difference. The intention of the
parties-by having Clause 18 in the agreement - is clear and unambiguous that the courts at
Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have
jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the
agreement, the maxim expressio unius est exclusio alterius comes into play as there is
nothing to indicate to the contrary. This legal maxim means that expression of one is the
exclusion of another. By making a provision that the agreement is subject to the jurisdiction
of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts.
Where the contract specifies the jurisdiction of the courts at a particular place and such courts
have jurisdiction to deal with the matter, we think that an inference may be drawn that parties
intended to exclude all other courts.”

Madan Lokur- “The parties would not have included the ouster clause in their agreement
were it not to carry any meaning at all. The very fact that the ouster clause is included in the
agreement between the parties conveys their clear intention to exclude the jurisdiction
 5. Dhulabhai vs Madhya Pradesh- (Relevant Section: Code of Civil Procedure, 1908 –
Section 9)

Ratio- A suit is said to be “expressly barred” when it is barred by any enactment for the time
being in force. But every presumption should be made in favour of the jurisdiction of a civil
court and the provision for exclusion of jurisdiction of a court must be strictly construed. If
there is any doubt about the ousting of jurisdiction of a civil court, the court will lean to an
interpretation which would maintain the jurisdiction.

In dealing with the question whether a civil court’s jurisdiction to entertain a suit is barred or
not, it is necessary to bear in mind that every presumption should be made in favour of the
civil court. The exclusion of jurisdiction of a civil court to entertain civil causes should not be
readily inferred unless the relevant statute contains an express provision to that effect, or
leads to a necessary and inevitable implication of that nature.

A court has jurisdiction to examine whether the provisions of the Act and the Rules made
thereunder have or have not been compiled with, or the order is contrary to law, mala fide,
ultra vires, perverse, arbitrary, purported, violative of the principles of natural justice, or is
based on no evidence and so on. In all these cases, the order cannot be said to be under the act
but is outside the Act and the jurisdiction of the civil court is not ousted.

6. Nahar Industrial Enterprises vs Hong Kong and Shanghai Banking Corporation-

(Relevant Section: Code of Civil Procedure, 1908 – Section 9)

Brief- Nahar and HSBC had a dispute which the Ludhiana Civil court decided upon, asking
them to maintain status quo. HSBC violated the court order, terminated the contract, and filed
a petition in the Chandigarh HC asking for the case to be transferred to the Bombay Debt
Recovery Tribunal, which was granted. The supreme court set aside the HC's ruling. It said

A) Not every tribunal is a civil court, but every civil court is a tribunal. Here Nahar was
not a financial institution, and it cannot claim a remedy in DRT.
B) since the HSBC wanted to terminate the contract and not recover debts, the DRT
could not decide on this issue due its limited subject matter jurisdiction.

7. India Bank v Maharashtra State Cooperative Marketing Federation LTD

A learned Single Judge of the Bombay High Court, who heard the summons for judgment and the
Notice of Motion, held that the concept of trial as contained in Section 10 of the Code is applicable
only to a regular/ordinary suit and not to a summary suit filed under Order 37 of the Code and
further proceedings under Summary Suit No. 500 of 1992 were not required to be stayed.

He granted leave to the Federation to defend the suit conditionally upon the Federation depositing
Rs 4 crores in the Court.

In a summary suit, the "trial" really begins after the court or the judge grants leave to the defendant
to contest the suit.

The court or the judge dealing with the summary suit can proceed up to the stage of hearing the
summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has
not applied for leave to defend or if such application has been made and refused or if (b) the
defendant who is permitted to defend fails to comply with the conditions on which leave to defend
is granted.

That was a case arising under the Representation of the People Act, 1951 and it was not proper to
apply the interpretation of the word "trial" in that case while interpreting Section 10 in the context
of Order 37 of the Code.

We allow these appeals, set aside the impugned judgment of the Division Bench of the High Court
and restore the order passed by the learned Single Judge.

8. Gulf Oil v. Gilbert

RULE:

If the combination and weight of factors requisite to given results are difficult to forecast or state,
those to be considered are not difficult to name. An interest to be considered, and the one likely to
be most pressed, is the private interest of the litigant. Important considerations are the relative ease
of access to sources of proof; availability of compulsory process for attendance of unwilling, and the
cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be
appropriate to the action; and all other practical problems that make trial of a case easy, expeditious
and inexpensive. There may also be questions as to the enforceability of a judgment if one is
obtained. The court will weigh relative advantages and obstacles to fair trial. But unless the balance
is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.

FACTS:

Respondent-plaintiff, Virginia resident, and public warehouse operator brought a tort action in New
York alleging that the petitioner-defendant, in violation of the ordinances of Virginia, so carelessly
handled a delivery of gasoline to his warehouse tanks and pumps as to cause an explosion and fire
which consumed the warehouse building, caused injury to his business, and burned the property of
customers in his custody under warehousing agreements. Petitioner-defendant oil company is a
Pennsylvania corporation, qualified to do business in both Virginia and New York, and it has
designated officials of each state as agents to receive service of process. When sued in New York, the
defendant, invoking the doctrine offorum non conveniens, claimed that the appropriate place for
trial is Virginia, where the plaintiff lives and defendant does business, where all events in litigation
took place, where most of the witnesses reside, and where both state and federal courts are
available to plaintiff and are able to obtain jurisdiction of the defendant. The case, on its merits,
involves no federal question and was brought in the US District Court solely because of diversity in
citizenship of the parties. The District Court considered that the law of New York as to forum non
conveniens applied and that it required the case to be left to Virginia courts. It therefore dismissed
the action. The Court of Appeals disagreed as to the applicability of New York law, took a restrictive
view of the application of the entire doctrine in federal courts and reversed. On certiorari, the court
reversed.

ISSUE:

Did the district court abuse its discretion in dismissing the suit pursuant to the doctrine of forum non
conveniens?

ANSWER:
No.

CONCLUSION:

The court concluded that the district court had not exceeded its powers or the bounds of its
discretion in dismissing plaintiff's complaint and remitting it to the courts of his own community. The
appeals court judgment was too restrictive. The task of the trial court would be simplified by trial in
Virginia. If trial was in a state court, it could apply its own law to events occurring there. If in federal
court by reason of diversity of citizenship, the court would apply the law of its own state in which it
is likely to be experienced. The course of adjudication in New York federal court might be beset with
conflict of laws problems all avoided if the case is litigated in Virginia where it arose.

9. Aspi Jal v. Khusboo Rustom, (2013) 4 SCC 333

Mr Shyam Divan, Senior Counsel appearing on behalf of the appellants submits that in the second
suit, the plaintiffs have sought eviction on the ground of non-user of the suit premises for several
years prior to the filing of the suits but in the third suit it has specifically been averred that “the
defendant and his family has not been in use and occupation of the suit premises for a continuous
period of more than six months immediately prior to the institution of this suit without reasonable
cause”. Thus, according to Mr Divan, the matter in issue in the third suit is non-user of the suit
premises prior to six months from the date of institution of the said suit. He points out that the
plaintiffs may fail in the earlier two suits by not establishing the non-user of the tenanted premises
for a period of six months prior to the institution of those suits, yet, they can succeed in the third
suit by proving the non-user of the suit premises by the defendants for six months prior to the
institution of that suit. According to him, the matter in issue in the third suit being substantially
different than the first two suits, the provisions of Section 10 of the Code of Civil Procedure, 1908
(hereinafter to be referred to as “the Code”) is not attracted and hence, the trial court erred in
staying the third suit till the disposal of the first two suits.

10. Nawab Hussain v. State of U.P

A sub-inspector of police was dismissed from service by the DIG. He challenged the order of
dismissal by filing a writ petition in the HC on the ground that he was not afforded a reasonable
opportunity of being heard before the passing of the order. The contention was, however, negated
and the petition was dismissed. He then filed a suit and raised an additional ground that since he
was appointed by the IGP, the DIG had no power to dismiss him. The State contended that the suit
was barred by constructive res judicata. The trial court, the first appellate court as well as the HC
held that the suit was not barred by res judicata. Allowing the appeal filed by the State, the SC held
that the suit was barred by constructive res judicata as the plea was within the knowledge of the
plaintiff and could well have been taken in the earlier writ petition. The same principle applies to
pleas which were taken but not pressed at the time of hearing.

It is well established that the doctrine of res judicata codified in Section 11 CPC is not exhaustive.
Section 11 provides that if a plea could have been taken by a party in a proceeding between him and
his opponent, he should not be permitted to take that plea against the same party in a subsequent
proceeding with reference to the same subject-matter. That clearly is opposed to considerations of
public policy on which the doctrine of res judicata is based, and would mean harassment and
hardship to the opponent. Besides, if such a course Is allowed to be adopted, the doctrine of finality
of judgments pronounced by Courts would also be materially affected. Thus, it helps in raising the
bar of res judicata by suitably construing the general principles of subduing a cantankerous litigant.
That is why this rule is called constructive res judicata, which, in reality, is an aspect or amplification
of the general principles of res judicata.

The primary object of Explanation 4 is to cut short the litigation by compelling the parties to the suit
to rely upon all grounds of attack or defence which are available to them. If the plaintiff or defendant
fails to take up such ground which he “might” or “ought” to have taken, it would be treated to have
been raised and decided. When any matter which might or ought to have been made a ground of
defence or attack in a former proceeding but was not so made, then such a matter in the eyes of the
law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been
constructively in issue, and therefore, is taken as decided.

11. Modi Entertainment Network v WSG Cricket

Whether the Division Bench of the High Court erred in vacating the anti-suit injunction granted by a
learned Single Judge restraining the respondent from proceeding with the action between the same
parties pending in the English Court, the forum of their choice. It involves examination of the
principles governing grant of an anti-suit injunction by a court of natural jurisdiction against a party
to a suit before it restraining him from instituting and/or prosecuting the suit, between the same
parties, if instituted, in a foreign court of choice of the parties.

In regard to jurisdiction of courts under the Code of Civil Procedure (CPC) over a subject- matter one
or more courts may have jurisdiction to deal with it having regard to the location of immovable
property, place of residence or work of a defendant or place where cause of action has arisen.
Where only one Court has jurisdiction it is said to have exclusive jurisdiction; where more
courts than one have jurisdiction over a subject-matter, they are called courts of available or natural
jurisdiction. The growing global commercial activities gave rise to the practice of the parties to a
contract agreeing beforehand to approach for resolution of their disputes thereunder, to either any
of the available courts of natural jurisdiction and thereby create an exclusive or non-exclusive
jurisdiction in one of the available forums or to have the disputes resolved by a foreign court of their
choice as a neutral forum according to the law applicable to that court. It is a well-settled principle
that by agreement the parties cannot confer jurisdiction, where none exists, on a court to which CPC
applies, but this principle does not apply when the parties agree to submit to the exclusive or non-
exclusive jurisdiction of a foreign court; indeed in such cases the English Courts do permit invoking
their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes
resolved by a Foreign Court termed as a 'neutral court' or 'court of choice' creating exclusive or non-
exclusive jurisdiction in it.

Thus, it is clear that the principles governing the exercise of discretion by the court to grant anti-suit
injunction against a person amenable to the jurisdiction where by contract the defendant has bound
himself not to bring the proceedings which he threatens to bring or has brought in the foreign court,
are different from the principles laid down in Rule 31(5) which deals with cases in general where an
English Court may restrain a party over whom the court has personal jurisdiction from the institution
or continuance of the proceedings in a foreign court. The test for issuance of the anti-suit injunction
to a person amenable to the jurisdiction of the court in person has been varying; first it was 'equity
and good conscience'. The test later adopted was 'to avoid injustice'.

The criteria to determine which was more appropriate forum, for the purpose of ordering stay of the
suit, the court would look for that forum with which the action had the 1. Harshad
Chimmanlal Modi v. DLF Universal, 2005(7) SCC 791 (Immovable property)

12. Ramchnadra Dagdu Sonavane v. Vithu Hira Mahar (2009) 10 SCC 273

The Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian
law. A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil
Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a
subsequent proceeding where in an earlier proceeding such claim should / ought to have been
raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and
enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings.

From notes

The trial court held that the adoption of Vithu had not been proved. Ultimately, the Court had
observed that the only issue that was agitated before the trial court was, whether Vithu was the
adopted son of Pandu Mahar or not and since there was concurrent finding by the trial court and
first appellate court and since that finding does not appear to be perverse finding, it is not possible
to interfere with the findings of fact and had dismissed the second appeal by its order dated 20-10-
1964.

13. Mumbai International Airport v. Regency Convention, 2010(7) SCC 417

A person who is not a party has no right to be impleaded against the wishes of the plaintiff. The
court is given the discretion to add as a party, any person who is found to be a necessary party or
proper party.

The Court concluded that a purchaser of the suit property subsequent to the suit agreement would
be a necessary party as he would be affected if he had purchased it with or without notice of the
contract, but a person who claims a title adverse to that of the defendant vendor will not be a
necessary party.If a plaintiff makes an application for impleading a person as a defendant on the
ground that he is a necessary party, the court may implead him having regard to the provisions of
Rules 9 and 10(2) of Order 1.

If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to
be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a
necessary party and in his absence the plaintiff was not entitled to any relief in the suit. If an
application is made by a plaintiff for impleading someone as a proper party, subject to limitation,
bona fides, etc., the court will normally implead him, if he is found to be a proper party. In other
words, the court has the discretion to either to allow or reject an application of a person claiming to
be a proper party, depending upon the facts and circumstances and no person has a right to insist
that he should be impleaded as a party, merely because he is a proper party.

14. Inbasagaran v. S. Natarajan, (2015)11 SCC 12

Court stated that causes of action for the two suits are different and distinct and the evidence
to support the relief in the two suits is also different, therefore, the provisions of Order II
Rule 2 will not apply. The first cause of action arose when S tried to forcibly occupy the
property. The second cause of action arose when S disclosed that property was transferred in
his favor by the Housing Board. Hence, the causes of action are not same and identical.
Or
substantial connection in terms of convenience or expense, availability of witnesses, the law
governing the relevant transaction and the places where the parties resided or carried on business. If
the court concluded that there was no other available forum which was more appropriate than the
English Court it would normally refuse a stay. If, however, the court concluded that there was
another forum which was prima facie more appropriate, the court would normally grant a stay
unless there were circumstances militating against a stay.

1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following
aspects: -

(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the
court;

(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated;
and

(c) the principle of comity - respect for the court in which the commencement or continuance of
action/proceeding is sought to be restrained - must be borne in mind;

(2) in a case where more forums than one are available, the Court in exercise of its discretion to
grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens)
having regard to the convenience of the parties and may grant anti-suit injunction in regard to
proceedings which are oppressive or vexatious or in a forum non-conveniens; (3) Where jurisdiction
of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to
exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but
are relevant factors and when a question arises as to the nature of jurisdiction agreed to between
the parties the court has to decide the same on a true interpretation of the contract on the facts and
in the circumstances of each case; (4) a court of natural jurisdiction will not normally grant anti-suit
injunction against a defendant before it where parties have agreed to submit to the exclusive
jurisdiction of a court including a foreign court, a forum of their choice in regard to the
commencement or continuance of proceedings in the court of choice, save in an exceptional case for
good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a
contracting party to be relieved of the burden of the contract; or since the date of the contract the
circumstances or subsequent events have made it impossible for the party seeking injunction to
prosecute the case in the court of choice because the essence of the jurisdiction of the court does
not exist or because of a vis major or force majeure and the like; (5) where parties have agreed,
under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by
the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no
anti- suit injunction will be granted in regard to proceedings in such a forum conveniens and
favoured forum as it shall be presumed that the parties have thought over their convenience and all
other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice
which cannot be treated just an alternative forum; (6) a party to the contract containing jurisdiction
clause cannot normally be prevented from approaching the court of choice of the parties as it would
amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause
approaches the court of choice in which exclusive or non- exclusive jurisdiction is created, the
proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be
said to be forum non-conveniens; and (7) the burden of establishing that the forum of choice is a
forum non-