Upgrad LLM

lack of jurisd. v/s irregular exercise thereof


After landmark decision in ANISMINIC LTD. V/S FOREIGN COMPENSATION COMMISSION1969, the legal position is considerably changed. it virtually assimilated the distinction b/w lack of jurisdiction and erroneous exercise thereof. As observed in M.L.SETHI V/S R.P.KAPUR{1972}2 SCC 427 at p.no: 435, the difference b/w jurisdictional error and error of law within jurisdiction has been reduced almost to a vanishing point.The following observations pithily put the legal position as under:

"After ANISMINIC every error of law is a jurisdictional error..... . the distinction b/w jurisdictional error and non-jurisdictional error is ultimately based upon a foundation of sand. much of superstructure has already crumbled.

Q. A COURT INSPITE OF BAR OF LIMITATION PASSED DECREE IN FAVOUR OF PLAINTIFF. THE DEFENDANT DID NOT PREFFERD APPEAL. BUT THE PLFF. FILED SEPERATE SUIT CHALLANGING THE DEREE PASSED BY THE COURT IN THE 1ST SUIT. THE DEFT. IN 2ND SUIT TOOK THE OBJECTION THAT SUIT IS NOT MAINTAINABLE AND THE APPEAL WAS THE PROPER COURSE WHICH THE PLFF. DID NOT AVAILED. WHETHER OBJECTION IS MAINTAINABLE?

1] Whether bar of limitation is jurisdictional error?

2] In light of above cases, it does not matter that the bar is jurisdictional or non-jurisdictional and if it is true whether plff. would succeed in 2nd suit.

3] Whether not it would be misuse of process to file collateral suit instead of filing appeal?

 
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ADVOCATE

What is the cause of action/grounds for the second suit?

Bar of limitation is a jurisdictional error

Normally, Res-judicata applies and 2nd suit must fail on that score.

Filing 2nd suit is abuse of process of law.  Appeal is the proper remedy.


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POWER OF DEFENSE IS IMMENSE

shridhar please read the problem carefully , he has raised a legitimate query.

 
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Advocate

If in spite of alternative statutory remedy petition under Article 226/227 of the constitution is filed in the High Court and the High Court entertain the same, does it also amount to Jurisdictional error? I am of the view that all error of law are Jurisdictional error.

 
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ADVOCATE

@JSDN

Sir, I could understand the query.

That's why I asked the author to provide the grounds of the 2nd suit.

Why because if the 2nd suit is on the ground that the lack of jurisdiction is based on purely question of law, res-judicata will not apply.  Otherwise, if it involves purely question of fact or mixed question of fact and law, then 2nd suit will not lie on the ground of res-judicata.

 

 
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Advocate

 

In Corpus Juris Secundum Vol XVII para 19 it says " Disobedience of or resistance to avoid mandate, order, judgement or decree or one issued by a Court without jurisdiction of the subject-matter and parties litigant, is not contempt and where the court has no jurisdiction to make the order, no waiver can cut off the rights of the party to attack its validity. Moreover, the practise in Indian Courts is that no one should suffer because of the mistake of the court. Article 21 of the Constitution of India also says No person shall be deprived of his life or personal liberty except according to procedure established by law" so why should the innocent plaintiff or defendant be made to deprived of their personal liberty by the court by assuming wroungful jurisdictions by adopting procedure which is not established by law? See below the discussion on the  thread "contempt of court in case where the court lack Jurisdiction.

 
 
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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

Padam,

A Nice question indeed. 

Well you've not specified whether the Defendant took the plea specifically in the first suit. If he did not - it amounts to a waiver - and no collateral suit can be filed in any case. Though the court is mandated as per S.3 of the Limitation Act, 1963 to dismiss the suit even if limitation is not set up as a defence, failure or oversight of court would not in any manner - lead to the decree being called a nullity or void. - and a decree once passed can be challenged in collateral proceedings only when it's a nullity or void. Which means inherent lack of jurisdiction. The decree becomes non est as the court had no authority to pass the decree. That is not the case here. 

However if he did take up the issue - and court gave a wrong decision - it would not bind as erroneous decisions on pure questions of law are not RJ - as per Mathura Prasad v. Dossibai (1979) and M.A.Susai v. Issabella (1991) 


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propra

My opinion is that above case is not a jurisdictional error.

 

 

All jurisdictional errors are error of law but not other way round always and the gap is between the two is wide enough to distinguish them from each other.

 

 

Had the party approached court within the Bar of Limitation, was the court competent to hear the matter?

-------------If the answer is Yes, then in above case court may have erred to exercise the jurisdiction  but it it is not a inherent want of jurisdiction.

 

 

Validity of order order may challenged in execution or by way of collateral proceedings if the order is void ab initiobut if it is voidable the one has to take recourse to appeal or revision at competent jurisdiction.

 

 

What may be deemed as void ab initio order?

Ans:

If the order suffers from inherent want of jurisdiction (if Court didn't have jurisdiction at all to exercise it, then applying it erroneously does not come into picture here, and hence it is one of such instance of 'want of jurisdiction')

OR

If Order is obtained by fraud upon court (as again fraud upon the opposite party) but in the latter case, one again has to get it recalled/set aside by moving application under sec 151 or under review sec 114. But colleteral proceedings aren't justfied (else people would resort to filing a declaratory suits or collateral suits in the same jurisdiction 'to get the orders declared as null and void' instead of approaching to appeal or review jurisdiction!!!) as RJ does come into action.

 

 

I feel that in above  case 2nd suit as a collateral proceedings is a abuse of process.

 


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