Sharma vs Mithyleshwar - Appeal Against Order on Jurisdiction

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Hanuman Prasad Sharma @ H.P. Sharma vs J. Mithyleshwar on 25 March, 2026

Author: Manoj Kumar Ohri

Bench: Manoj Kumar Ohri

• IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on : 13.02.2026
Pronounced on : 25.03.2026
Uploaded on : 25.03.2026

• FAO 290/2022

HANUMAN PRASAD SHARMA @ H.P. SHARMA .....Appellant
Through: Mr. Mridul Jain and Ms. Ruby
Sharma, Advocates

                      versus

J. MITHYLESHWAR .....Respondent
Through: Mr. Rohit Rattu, Advocate

CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

                            JUDGMENT 1.    The present appeal has been preferred by the appellant/plaintiff, being

aggrieved by the impugned order dated 23.07.2022, whereby the application
filed by the respondent/defendant under Order VII Rule 10 CPC came to be
allowed.

1. The facts in a nutshell are that the appellant preferred the underlying
   civil suit for recovery of Rs.10 lacs along with interest, claiming that he had
   provided a friendly loan of Rs.10 lacs to the respondent. It was averred that
   the said sum was transferred from the appellant's account maintained with
   Karnataka Bank Ltd., Savita Vihar Branch, Delhi. The appellant had further
   claimed that towards discharge of its liability to pay the said amount, the
   respondent had issued cheque no. 000072 dated 03.03.2016 for Rs.10 lacs Signature Not Verified FAO 290/2022 Page 1 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20 drawn on HDFC Bank, Bellari Branch, Karnataka. The said cheque, when
   presented by the appellant at his bank in Delhi, got dishonoured. Claiming
   jurisdiction at Delhi, the appellant had sought recovery of the aforesaid
   amount.

2.   While contesting the impugned order, Mr. Jain, learned counsel for
   

   the appellant, contended that the Trial Court erred in allowing the
   respondent's application under Order VII Rule 10 CPC without appreciating
   that the respondent had not taken any objection to the territorial jurisdiction
   of the Trial Court in the written statement; as such, no issue was framed on
   the said aspect. The application under Order VII Rule 10 CPC came to be
   filed subsequently, and moreover, while there were a total of four suits filed
   by the appellant with respect to four different loan transactions, in the
   remaining suits where the loan was extended through cash/RTGS, similar
   applications under Order VII Rule 10 CPC came to dismissed; however, in
   the present case, for no good reason, such an application was allowed.
   Learned counsel has further referred to Section 21 CPC to claim jurisdiction
   at Delhi.

3.   Learned counsel for the respondent, while contesting the above
   

   submissions, contended that the respondent is located in Karnataka and no
   cause of action had arisen within the jurisdiction of this Court. As per the
   averments, the loan amount was received by the respondent in his bank
   account in Karnataka. The promissory note and the receipt were also
   executed at Ballari and thus, merely because the appellant is located in
   Delhi, without any part of the cause of action arising within the jurisdiction
   of this Court, it does not confer territorial jurisdiction upon the Courts at
   Delhi.

Signature Not Verified FAO 290/2022 Page 2 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20

1. The plea of lack of territorial jurisdiction of the Trial Court to entertain the suit was raised by the respondent vide his application under Order VII Rule 10 CPC. The underlying suit was filed on 12.02.2019, the written statement came to be filed on 02.05.2019, and the issues were settled on 18.02.2021. Concededly, in the written statement, the respondent had not raised any objection to the territorial jurisdiction of the Courts at Delhi. In the suit, the appellant/plaintiff had claimed jurisdiction in paragraph 15, which is reproduced hereunder:-

"15. That Delhi courts has jurisdiction to try and adjudicate the present
case as the defendant contacted the plaintiff and his family in Delhi, at C-
185, East Gokalpur, Wazirabad Main Road, Shahdara, Delhi where the
request was acceded to and Promissory note along with receipt were
delivered by the defendant and for repayment of the amount the cheque
was handed over by the defendant to the plaintiff at the same address and
this Hon'ble Court has territorial jurisdiction to entertain and try the
present suit as the plaintiff provided money to the defendant through his
bank account maintained at Karnataka Bank Ltd., Savita Vihar, Delhi -
110092 by way of RTGS, the cheque given by the defendant was also
presented for encashment in the same bank account which was returned
unpaid and dishonoured with the remarks 'Account Blocked' which is
within the territorial jurisdiction of this Hon'ble Court."
6. Pertinently, in the written statement filed by the respondent, it was
stated that the same is a matter of record and needs no reply, and no
objection to the territorial jurisdiction was raised. As such, no issue was
framed by the Trial Court on the aforesaid aspect. The law pertaining to the
institution of a suit within the jurisdiction of a particular Court where part of
the cause of action has arisen is well settled. It is also well settled that for
considering an application under Order VII Rule 10 CPC, the Court has to
confine itself to the pleadings made in the plaint. A perusal of the plaint
would show that the plaintiff has claimed that the respondent had contacted
the appellant at Delhi, where his request was accepted and the promissory Signature Not Verified FAO 290/2022 Page 3 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20 note, as well as the receipt, were delivered for the payment of the loan
amount. It is further claimed that the dishonour of the repayment cheque
occurred at Delhi. No doubt, the application under Order VII Rule 10 CPC empowers and enables a Court to return the plaint "at any stage of 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. 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 party on the principles
laid down in Section 21 CPC. Independently of Section 21 CPC, a defendant
may also waive the objection as regards a defect in territorial jurisdiction
and will be subsequently precluded from taking the objection (Ref: Bank of
India Vs. U.A.N. Raju & Anr.1). In Harshad Chiman Lal Modi Vs. DLF
Universal Ltd. & Anr.2, the Supreme Court has held as under:-

"30. We are unable to uphold the contention. The jurisdiction of a
court may be classified into several categories. The important categories
are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and

(iii) Jurisdiction over the subject matter. So far as territorial and
pecuniary jurisdictions are concerned, objection to such jurisdiction has
to be taken at the earliest possible opportunity and in any case at or
before settlement of issues. The law is well settled on the point that if such
objection is not taken at the earliest, it cannot be allowed to be taken at a
subsequent stage. Jurisdiction as to subject matter, however, is totally
distinct and stands on a different footing. Where a court has no
jurisdiction over the subject matter of the suit by reason of any limitation
imposed by statute, charter or commission, it cannot take up the cause or
matter. An order passed by a court having no jurisdiction is nullity."
1 MANU/AP/0895/2003 2 (2005) 7 SCC 791 Signature Not Verified FAO 290/2022 Page 4 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20

1. The Coordinate Bench of this Court in Vijay Kumar Ojha Vs.
   Samsung India Electronics Pvt. Ltd.3, while seized of a similar issue,
   concluded that the defendant, having not taken any objection to the
   territorial jurisdiction of the Court earlier and no issue on the said aspect
   having been settled, was precluded from taking the said objection
   subsequently.

2. To the same effect is the decision of another Coordinate Bench of this
   Court in Shyam Sunder Kalra Vs. Ravinder Kumar Jain & Anr.4, wherein
   this Court held as under:-

"10. Also, it is settled law in terms of Section 21 of CPC that all
objections as to territorial jurisdiction or pecuniary jurisdiction, have to
be taken in a suit before framing of issues, and if not taken, such
objections are waived i.e issues of pecuniary and territorial jurisdiction
do not go to the root of the matter unlike the issue of lack of inherent
jurisdiction or the lack of subject matter jurisdiction, when a decree
cannot be passed by the Court lacking the subject matter/inherent
jurisdiction."
9. A gainful reference can also be made to Bahrein Petroleum Company
Ltd. Vs. Pappu & Ors.5, wherein it has been held as under:-

"3. Counsel for the plaintiff-respondent also submitted that it was
open to the defendants to waive this objection, and if they did so, they
could not subsequently, take, the objection. This submission is well-
founded. As a general rule, neither consent nor waiver nor acquiescence
can confer jurisdiction upon a Court, otherwise incompetent to try the
suit. But Section 21 of the Code provides an exception, and a defect as to
the place of suing, that is to say, the local venue for suits cognizable 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 to 20 may be waived.
Independently of this section, the defendant may waive the objection and
may be subsequently precluded from taking it, see Seth Hira Lal Patni v.
3 MANU/DE/2921/2025 4 2012:DHC:6477 5 MANU/SC/0012/1965 Signature Not Verified FAO 290/2022 Page 5 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20 Sri Kali Nath."
10. On a cumulative reading of the aforesaid decisions, this Court notes
that no objection having been taken to the territorial jurisdiction at the first
instance, including at the stage of framing of issues, the said objection is
deemed to have been waived. Consequently, the present appeal succeeds, the
impugned order is set aside, and the suit is restored to its original number.
Let the matter be listed before the concerned Trial Court on 30.03.2026.

1.  The present appeal is disposed of in the above terms.
   

2.  A copy of this judgment be communicated to the concerned Trial
   

   Court.
   MANOJ KUMAR OHRI
   (JUDGE)
   MARCH 25, 2026
   ga Signature Not Verified FAO 290/2022 Page 6 of 6 Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:25.03.2026 16:55:20