It is a well settled law that a decree passed without jurisdiction is a nullity. As such, a Respondent / Opposite Party is supposed to take the ground of maintainability of the case / suit / complaint in the first instance. However, it usually happens that the Respondent / Opposite Party fails to take the objection of maintainability in the original proceedings and thereafter in the appellate stage after suffering a decree / order against itself, the party appealing usually takes a ground that the Suit / Complaint / Petition was not instituted properly before the appropriate court. Such objections in the Appellate stages are usually on the issue of the subject matter of the case, the territorial jurisdiction or the pecuniary jurisdiction. Is such an objection maintainable in law for the first time in the Appellate stage?
Section 21 of the Code of Civil Procedure, 1908, provides for as to when can an objection to the jurisdiction of a court can be taken. Section 21 CPC is as follows:
21. Objections to jurisdiction. —
(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
On a bare perusal of Section 21 CPC, it is apparent that an objection to either the territorial jurisdiction or the pecuniary jurisdiction for the first time before an Appellate / Revisional Court cannot be accepted and is not a valid argument. It is only when the Appellate Court / Revisional Court feels that there is a failure of justice that can such an objection to the jurisdiction be allowed to be taken.
However, it is well known, the provisions of the Civil Procedure Code are not strictly applicable to the Consumer Protection Act and the Consumer Commissions. As such, in such a scenario, what is the law that is prevailing with respect to the objection taken by a party for the first time in the Appellate Stage with respect to the territorial / pecuniary jurisdiction of the Consumer Commission. Will such an objection / issue / ground be allowed to be raised?
The National Consumer Disputes Redressal Commission has in the case of Treaty Constructions & Anr. v. Ruby Tower Co-op Hsg. Society Ltd. & Ors., FA/109/2015 : 2018 SCC OnLine NCDRC 779 has dealt with the instant issue. The NCDRC has held that an objection to the pecuniary jurisdiction of a Consumer Commission for the first time in the Appellate Stage would not be maintainable and has relied upon the Judgment of the Supreme Court in the case of Harshad Chiman Lal Modi v. DLF Universal, (2005) 7 SCC 791. The National Commission has observed as follows:
“14. As regard the objection of the appellants regarding pecuniary jurisdiction of the State Commission, it appears that this objection has not been taken before the State Commission specifically. As the matter has now been decided by the State Commission on merits, the technical objection of pecuniary jurisdiction cannot be raised at this stage. This view gets support from the decision of the Hon’ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal, (2005) 7 SCC 791 : AIR 2005 SC 4446, wherein the Hon’ble Apex Court has held as follows:—
“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”.” (Emphasis and underline supplied)
The abovementioned Judgment of the NCDRC was assailed before the Supreme Court of India in the case titled Treaty Construction and Another v. Ruby Tower Cooperative Housing Society Limited, Civil Appeal No. 5699 of 2019 : (2019) 8 SCC 157 wherein the Supreme Court has upheld the abovementioned observations of the NCDRC. The relevant portion of the instant judgment is reproduced as under:
6. The contention on the part of the appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage.” (Emphasis and underline supplied)
Hence, it is apparent that the Opposite Party / Respondent cannot take the objection / ground to the territorial / pecuniary jurisdiction for the first time in the Appellate Stage. If at all such an objection / ground is taken for the first time before the Appellate forum in the First Appeal, such ground / technical objection shall be rejected by the Appellate Court in view of the abovementioned judgments of the National Commission, which was upheld by the Supreme Court.
It is certain that the National Commission as well as the Supreme Court have applied the principle of law as provided under Section 21 of the CPC and as such it is apparent that Section 21 is applicable to the proceedings under the Consumer Protection Act.
The Consumer Commissions must keep in mind while deciding the Consumer Complaints and / or First Appeals or Revision Petitions under the Consumer Protection Act that such proceedings are time bound and that the proceedings are to be conducted in a summary manner. It has been provided under the Consumer Protection Act that each Complaint must be disposed of as expeditiously as possible, and endeavour shall be made to decide the complaint within a period of 3 months from the date of receipt of the notice by the Opposite Party.
The Consumer Protection Act being a benevolent legislation enacted particularly to safeguard the interests of the Consumers, has to be kept in mind while deciding the Consumer complaints. If the Opposite Party has not taken an objection with respect to the jurisdiction at the first instance / stage, i.e., at the stage of the adjudication of the Consumer Complaint, such an objection cannot be allowed to be taken at the Appellate stage, since it would completely defeat the purpose of the strict timelines and guidelines as are provided under the Consumer Protection Act.
If at all a Consumer Commission in the Appellate stage for the first time allows such a technical objection to be taken, then the order in the Consumer Complaint would have to be set aside and the Complainant / Consumer may have to approach the Consumer Commission once again for redressal of its grievances. Such an eventuality would defeat the entire purpose of the Act as it would only lead to harassment of the Consumer.
