Civil Appeal No. 4110 OF 2007 (Arising out of S.L.P. (C) No. 15646 of
Pasayat, J.- Leave granted
Challenge in this appeal is to the
legality of judgment rendered by a learned Single Judge of the Madas
High Court allowing the transfer petition filed by the respondent in
terms of Section 24 of the Code of Civil Procedure, 1908 (in short the
'CPC'). By the transfer petition the respondent had sought for transfer
of IDOP No.46 of 2003 pending in the Court of District Judge,
Kanyakumari at Nagercoil to the Court of Family Judge, Chennai. The High
Court accepted the prayer.
3. Learned counsel for the appellant
submitted that between the parties there was an earlier proceeding which
came before this Court in Y. Abraham Ajith and Ors. v. Inspector of
Police, Chennai and Anr. (2004 (8) SCC 100). It is submitted that in
view of what has been stated in the said case the impugned order cannot
be maintained. Learned counsel for the respondent on the other hand
supported the order of the High Court.
4. In Y. Abraham Ajith's case
(supra) it was, inter alia, observed as follows:
"All crime is local, the jurisdiction over the crime belongs to the
country where the crime is committed", as observed by Blackstone. A
significant word used in Section 177 of the Code of Criminal Procedure,
1973 (in short the 'Code') is "ordinarily". Use of the word indicates
that the provision is a general one and must be read subject to the
special provisions contained in the Code. As observed by the Court in
Purushottamdas Dalmia v. State of West Bengal (AIR 1961 SC 1589),
L.N.Mukherjee V. State of Madras (AIR 1961 SC 1601), Banwarilal
Jhunjhunwalla and Ors. v. Union of India and Anr. (AIR 1963 SC 1620) and
Mohan Baitha and Ors. v. State of Bihar and Anr. (2001 (4) SCC 350),
exception implied by the word "ordinarily" need not be limited to those
specially provided for by the law and exceptions may be provided by law
on consideration or may be implied from the provisions of law permitting
joint trial of offences by the same Court. No such exception is
applicable to the case at hand.
As observed by this Court in
State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908),
continuing offence is one which is susceptible of continuance and is
distinguishable from the one which is committed once and for all, that
it is one of those offences which arises out of the failure to obey or
comply with a rule or its requirement and which involves a penalty,
liability continues till compliance, that on every occasion such
disobedience or non-compliance occurs or recurs, there is the offence
A similar plea relating to
continuance of the offence was examined by this Court in Sujata
Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30).
There the allegations related to commission of alleged offences
punishable under Sections 498A, 506 and 323 IPC. On the factual
background, it was noted that though the dowry demands were made
earlier, the husband of the complainant went to the place where
complainant was residing and had assaulted her. This Court held in that
factual background that clause (c) of Section 178 was attracted. But in
the present case the factual position is different and the complainant
herself left the house of the husband on 15.4.1997 on account of alleged
dowry demands by the husband and his relations. There is thereafter not
even a whisper of allegations about any demand of dowry or commission of
any act constituting an offence much less at Chennai. That being so, the
logic of Section 178 (c) of the Code relating to continuance of the
offences cannot be applied.
The crucial question is whether any
part of the cause of action arose within the jurisdiction of the
concerned Court. In terms of Section 177 of the Code it is the place
where the offence was committed. In essence it is the cause of action
for initiation of the proceedings against the accused.
While in civil cases, normally the
expression "cause of action" is used, in criminal cases as stated in
Section 177 of the Code, reference is to the local jurisdiction where
the offence is committed. These variations in etymological expression do
not really make the position different. The expression "cause of action"
is therefore not a stranger to criminal cases.
It is settled law that cause of
action consists of bundle of facts, which give cause to enforce the
legal inquiry for redress in a court of law. In other words, it is a
bundle of facts, which taken with the law applicable to them, gives the
allegedly affected party a right to claim relief against the opponent.
It must include some act done by the latter since in the absence of such
an act no cause of action would possibly accrue or would arise.
The expression "cause of action" has
acquired a judicially settled meaning. In the restricted sense cause of
action means the circumstances forming the infraction of the right or
the immediate occasion for the action. In the wider sense, it means the
necessary conditions for the maintenance of the proceeding including not
only the alleged infraction, but also the infraction coupled with the
right itself. Compendiously the expression means every fact, which it
would be necessary for the complainant to prove, if traversed, in order
to support his right or grievance to the judgment of the Court. Every
fact, which is necessary to be proved, as distinguished from every piece
of evidence, which is necessary to prove such fact, comprises in "cause
The expression "cause of action" has
sometimes been employed to convey the restricted idea of facts or
circumstances which constitute either the infringement or the basis of a
right and no more. In a wider and more comprehensive sense, it has been
used to denote the whole bundle of material facts.
The expression "cause of action" is
generally understood to mean a situation or state of facts that entitles
a party to maintain an action in a court or a tribunal; a group of
operative facts giving rise to one or more bases for sitting; a factual
situation that entitles one person to obtain a remedy in court from
another person. (Black's Law Dictionary a "cause of action" is stated to
be the entire set of facts that gives rise to an enforceable claim; the
phrase comprises every fact, which, if traversed, the plaintiff must
prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the
meaning attributed to the phrase "cause of action" in common legal
parlance is existence of those facts, which give a party a right to
judicial interference on his behalf.
5. In Halsbury Laws of England
(Fourth Edition) it has been stated as follows:
"Cause of action" has been defined as meaning simply a factual situation
the existence of which entitles one person to obtain from the Court a
remedy against another person. The phrase has been held from earliest
time to include every fact which is material to be proved to entitle the
plaintiff to succeed, and every fact which a defendant would have a
right to traverse. "Cause of action" has also been taken to mean that
particular act on the part of the defendant which gives the plaintiff
his cause of complaint, or the subject matter of grievance founding the
action, not merely the technical cause of action".
6. No doubt the decision was
rendered in the background of the Code, they have relevance so far as
the present dispute is concerned.
7. In view of what has been stated
in the aforesaid case, it would be appropriate for the High Court to
re-consider the matter. The appeal is accordingly disposed of without
any order as to costs.
Print This Judgment