TMI Blog2012 (2) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the writ petition in this Court, dismissal thereof for want of territorial jurisdiction permitting the appellant to approach the appropriate forum. HELD THAT :- In the present case, we find that since the impugned orders are passed by the appellate tribunal in Delhi and this Court has the territorial jurisdiction to deal with the matter and no case of forum non conveniens of this Court (or for that matter forum conveniens of Gujarat High Court) is made out, therefore, this Court is competent to deal with the writ petition filed by the petitioner. Order of the learned Single Judge is set aside and the matter is remitted back for disposal of the writ petition on merits. Doctrine of forum conveniens - The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. with reference to a situation where original authority is in one State and the seat of the appellate authority is located in another State. the writ would be maintainable in both the Courts and also that it is the petitioner which has right to choose his forum, we are of the view that primacy to the freedom given to the petitioner n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed down the establishment in November, 2002. It is further the case of the appellant that he himself took employment with M/s SYSCON Engineering Pvt. Ltd. and is working there since November, 2002. However, unaware of the fact that with the closure of establishment, he was also required to surrender the Provident Fund code, he did not take any step in this direction. On 14.7.2006, the proprietor received summons from the Office of the Regional Provident Fund Commissioner (RPFC), Vadodara, Gujarat directing him to appear before him in person on 31.7.2006. He appeared and informed the RPFC about the closure of the establishment. However, the RPFC, Vadodara passed orders under Section 7Aof the Provident Fund Act dated 18.8.2006 directing the appellant to pay the provident fund dues to the tune of ₹ 2,90,417/-. The appellant felt aggrieved by this order and he preferred appeal before the Appellate Tribunal which is located in Delhi. This appeal was dismissed by the Appellate Tribunal vide orders dated 4 th July, 2011 holding that the information obtained shows that the appellant was having business and was still functioning and further that once the establishment comes within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essitous for just adjudication of the controversy and such other ancillary aspects. The balance of convenience is also to be taken note of. Be it noted, the Apex Court has clearly stated in the cases of Kusum Ingots (supra), Mosaraf Hossain Khan (supra) and Ambica Industries (supra) about the applicability of the doctrine of forum conveniens while opining that arising of a part of cause of action would entitle the High Court to entertain the writ petition as maintainable. 32. The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens. The Full Bench in New India Assurance Co. Ltd. (supra) has not kept in view the concept of forum conveniens and has expressed the view that if the appellate authority who has passed the order is situated in Delhi, then the Delhi High Court should be treated as the forum conveniens. We are unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Assurance Company Limited (supra) that since the original order merges into the appellate order, the place where the appellate authority is located is also forum conveniens is not correct. (h) Any decision of this Court contrary to the conclusions enumerated hereinabove stands overruled. 5. What follows from the above is that the five-Judges Bench accepted the principle of forum conveniens which may be applicable in such cases. Explaining this concept, the Court observed that it is obligatory on the part of the Court to see the convenience of all the parties before it, be it in the form of existence of more appropriate forum, expenses involved, the law relating to the lis, verification of certain facts which are necessary for just adjudication of the controversy or such other ancillary aspects. It was also clarified that this principle of forum conveniens takes within its sweep the concept of cause of action arising within the jurisdiction of the Court and would not itself constituted to be determining factor compelling the Court to entertain the matter. On this basis, Full Bench judgment of this Court in New India Assurance Company Ltd. v. Union of India Ors., A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court which may refuse to exercise its jurisdiction by invoking the doctrine of forum non conveniens. In the present case, when it is found that the appellate authority, whose decision was challenged in this Court, is located in Delhi and therefore the conclusions (b) and (c) of para 33 would be applicable. Thus, order of the tribunal has furnished cause of action in Delhi and, therefore, writ petition is maintainable. In such a case, if the High Court still would not like to exercise the discretionary jurisdiction on the application of doctrine of forum conveniens, the learned Single Judge was required to furnish some reasons as to why it was not appropriate to exercise the discretion. In conclusion (f) of para 33, this aspect is highlighted, namely, depending upon the factual matrix of each case in view of what has been stated in Ambica Industries (supra) and Adani Exports Ltd. (supra) . The High Court is required to scrutinize the matter for the application of doctrine of forum conveniens (or forum non conveniens). Therefore, order of the learned Single Judge needs to be set aside on this ground itself. Normally in such a situation, we could have referred the matter back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. [See Bhagat Singh Bagga v. Dewan Jagbir Sawhany, AIR 1941 Cal 670; Mandal Jalan v. Madanlal, AIR 1949 Cal 495; Bharat Coking Coal Limited v. Jharia Talkies Cold Storage (P) Ltd., 1997 CWN 122; S.S. Jain Co. v. Union of India, (1994) 1 CHN 445 and New Horizon Ltd. v. Union of India, AIR 1994 Del 26] 9. He also referred to another judgment of the Apex Court in Sri Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331 wherein it was held that an adverse appellate order might be the cause of action . The Court went on to say that the sole cause of action for the writ petition is the order of the appellate authority . On this basis, learned counsel argued that if the doctrine of forum conveniens is to be invoked, the place where the appellate authority is located becomes the forum conveniens. He specifically referred to the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad..... 38. Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh areas. 10. When we read the judgment in Kusum Ingots (supra) in the manner suggested by the learned counsel and take into consideration the combined effect of paras 25 to 27 of the said judgment, what follows is that when the original authority is constituted at one place and the appellate authority is constituted at another, not only the writ petition is maintainable at both places, it is further specifically held by the Supreme Court that in such a case, it will be for the petitioner to choose his forum (see para 25). Once the Supreme Court gave choice to the petitioner, the question would be as to whether the Court can still non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveniens has to be applied. The directions of the Sterling Agro (supra) have to be understood in that manner alone, otherwise it would be negation of the principle stated in Kusum Ingots (supra), particularly paras 25 to 27 thereof. Though the doctrine of forum conveniens is accepted by the Supreme Court in Kusum Ingots (supra) which has binding force under Article 141 of the Constitution, we would also like to make some observations about this doctrine for the simple reason that once the Court has to apply this doctrine in a given situation as indicated above, there should be a proper application thereof. This necessitates exemplifying the said doctrine. 12. The principle was succinctly stated by Lord President in Clements v. Macaulay, 4 Macph. 593. His Lordship stated the general principle relating to jurisdiction, namely, when jurisdiction is competently vested in a particular court as per law, normally the court has no discretion whether it shall exercise its jurisdiction or not, but is bound to award the justice which a suiter comes to ask. This is founded on Latin maxim Judex tenetur impertiri judicium suum which means a Judge must exercise discretion in every case in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote that there is a debate as to whether doctrine of forum non conveniens is applicable domestically, i.e. in Municipal Laws or it is a concept of International Law and is to be applied only when two Courts of competent jurisdiction situate in two different jurisdictions/countries. Learned counsel for the appellant argued that it was a principle applicable only in international field. He referred to the Division Bench judgment of this Court in Horlicks Ltd. v. Heinz India (Pvt.) Ltd., 164 (2009) DLT 539 (DB) holding that the principle of forum non conveniens is applicable only to foreign forums/courts. However, we are not indulging into this discussion in detail as in Kusum Ingots (supra), the principle is made applicable to domestic laws though we may record that this aspect, as to whether such principle is to be applied only in international law and not while dealing with the jurisdiction of two courts in the same country, did not invite the attention of the Supreme Court. Be as it may, since Kusum Ingots (supra) has held so and under Article 141 of the Constitution it binds us, it is not necessary for us to discuss this aspect any further. 14. Mr. Singh also tried to give alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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