Shanti Devi Alias Shanti Mishra vs Union Of India

CIVIL APPEAL NO.3630 of 2020 (arising out of SLP(C)No.18375 of 2018)

SHANTI DEVI ALIAS SHANTI MISHRA ...APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal has been filed questioning the

Division Bench judgment of Patna High Court in

Letters Patent Appeal No.1265 of 2017 dismissing the

Letters Patent Appeal of the appellant. Letters

Patent Appeal was filed against the judgment of

learned Single Judge dated 04.08.2017 by which Writ

Petition No.5999 of 2014 filed by her late husband in

which she was substituted after death of her husband Signature Not Verified Digitally signed by ARJUN BISHT

was dismissed by learned Single Judge on the ground Date: 2020.11.05 15:21:46 IST Reason:

of lack of territorial jurisdiction.

1

3. Brief facts of the case for deciding this appeal

are:

3.1 The husband of the appellant Shri Bashishtha

Narayan Mishra was employed in Coal India

Limited. He was working at Moira Colliery,

Bankola Area, District Burdwan, West Bengal.

Ministry of Coal, Government of India in

exercise of power under Section 3E of Coal

Mines Provident Fund and Miscellaneous

Provisions Act, 1948 and in supersession of

the Coal Mines Family Pension Scheme, 1971

notified a Family Coal Mines Pension Scheme,

1998 dated 05.03.1998. Late husband of the

appellant did not opt for the pension Scheme

notified under Notification dated 05.03.1998.

3.2 By Notification dated 09.01.2002 Coal Mines

Pension Scheme, 1998 was amended by inserting

paragraph 2A in the Scheme providing that an

employee, who had not opted for the Coal

Mines Family Pension Scheme, 1971 but is

covered by the Provident Fund Scheme may opt

for pension within a period of nine months.

After the Notification dated 09.01.2002, the 2 same was circulated by Eastern Coal Fields

Limited to all Regional Commissioners/

Assistant Commissioners.

3.3 The husband of the appellant in pursuance of

the Notification dated 09.01.2002 submitted

the option opting for Pension Scheme, which

option was forwarded to the Sr. Personnel

Officers by Manager, Moira Colliery by letter

dated 18.11.2003 requesting for transfer of

Rs.1,38,164/- from provident fund account of

B.N. Mishra to his pension fund. By further

letter dated 20.11.2003 of Regional

Commissioner, it was informed that amount of

Rs.48,467/- has been adjusted under para 4(2)

of Scheme, 1998. Late B.N. Mishra was to

retire on 30.04.2005. His papers for

settlement of pension were forwarded to The

Regional Commissioner–1, Coal Mines Provident

Fund, Asansol. By letter dated 30.11.2005

written by Regional Commissioner, Coal Mines

Provident Fund, Region-1, Asansol, the late

husband of the appellant was asked to deposit

3 the amount of Rs.39,198/- towards recovery of

pension contribution. The pension was

sanctioned to Shri Mishra after about 14

months from retirement, thereafter, he

started receiving pension w.e.f. May, 2005.

3.4 Late Shri B.N. Mishra being native of Village

Bhuskol, Police Station, Darbhanga, District

Darbhanga, he had claimed payment for pension

from Darbhanga, State of Bihar. Pension

started in account of Late Shri B.N. Mishra

with State Bank of India, Darbhanga, State of

Bihar. A Writ Petition No. 13955 of 2006 was

filed by late Shri B.N. Mishra in Patna High

court where he prayed for grant of refund of

Rs.1,33,559/-, which was wrongly withheld/

illegally deducted from the writ petitioner.

The said writ petition was dismissed on

08.02.2013 on the ground of lack of

territorial jurisdiction. Learned Single

Judge held that petitioner served in the

State of West Bengal under the authorities

and organizations which are located either in

4 States of West Bengal or Jharkhand, hence,

High Court of Patna had no territorial

jurisdiction.

3.5 After dismissal of the above Writ Petition

No.13955 of 2006 on 08.02.2013, late Shri

B.N. Mishra filed Writ Petition No. 4930 of

2013 in Jharkhand High Court for the relief

which he had claimed in the Writ Petition

No.13955 of 2006 before Patna High Court.

When notice of the writ petition filed by

late Shri B.N. Mishra in Jharkhand High Court

was received by office of Regional Provident

Fund Commissioner, Asansol, a letter dated

07.10.2013 was issued to the husband of the

appellant at his place of residence, i.e.,

Village Bhuskol, Police Station Darbhanga,

District Darbhanga, State of Bihar stating

that Shri B.N. Mishra having not opted

initially for pension scheme in pursuance of

1998 notification, he could not have opted

for pension in the year 2002. It was stated

that Pension of Shri B.N. Mishra was

5 erroneously settled by Regional Commissioner,

hence, Rs.8,01,334/- is to be recovered

towards pension payment from May, 2005 to

September, 2013.

3.6 By further letter dated 06.11.2013 issued by

Regional Commissioner, Coal Mines Provident

Fund, Region-1, Asansol, he was directed to

refund amount of Rs.8,09,268/- and entire

pension contribution alongwith interest. He

was communicated that it has been decided to

stop payment of monthly pension w.e.f.

November, 2013. After receipt of the letter

dated 07.10.2013, Shri B.N. Mishra sent a

reply on 07.11.2013 stating that letter dated

07.10.2013 has been issued due to personal

bias arising due to punitive action taken by

appropriate authorities against Regional

Commissioner, Region-1, Asansol on a petition

filed by Shri B.N. Mishra under the Right to

Information Act, 2005. Petitioner sent

representations to Secretary, Ministry of

Coal and Commission.

6 3.7 A Writ Petition No. 5999 of 2014 was filed by

late Shri B.N. Mishra in Patna High Court

where he challenged the letter dated

07.10.2013 and 06.11.2013 and also sought

direction for payment of pension to the

petitioner with interest. The writ petition

came for hearing before learned Single Judge

on 04.08.2017. Learned Single Judge noticed

the earlier order of the High Court dated

08.02.2013 by which his earlier Writ Petition

No.13955 of 2006 was dismissed on the ground

of lack of territorial jurisdiction. Learned

Single Judge observed that on similar facts,

the said writ petition having been dismissed

on 08.02.2013 on the ground of lack of

territorial jurisdiction and writ petition

having been filed by petitioner before the

Jharkhand High Court, which is pending, the

order of stoppage of pension is part of

retirement benefit, hence, the writ petition

is dismissed on the ground of lack of

territorial jurisdiction. A LPA No.1265 of

7 2017 was filed against the judgment of

learned Single Judge dated 04.08.2017.

During the pendency of writ petition, Shri

B.N. Mishra died and his wife Shanti Devi was

substituted as writ petitioner. LPA was

filed before the Division Bench against the

judgment of learned Single Judge, which has

been dismissed by the impugned judgment,

aggrieved by which order, this appeal has

been filed.

4. We have heard Shri Arvind Kumar Gupta, learned

counsel for appellant, Shri Sreekumar C.N., for the

respondent Nos. 1 to 3 and Shri Kaustubh Shukla for

respondent Nos. 5 and 8. Shri Uddyam Mukherjee

appeared for respondent No.4.

5. Learned counsel for the appellant submits that

High Court committed error in dismissing the writ

petition on the ground of lack of territorial

jurisdiction. High Court of judicature at Patna had

territorial jurisdiction to entertain the writ

petition. The part of cause of action had arisen

within the territorial jurisdiction of Patna High

8 Court. Late Shri B.N. Mishra was receiving pension

from State Bank of India, Darbhanga w.e.f. May, 2005

after his retirement on 30.04.2005. After issuance of

order dated 07.10.2013 and 06.11.2013 directing for

refund of amount of Rs.8.01.334/- and 8,09,268/- and

stopping the pension w.e.f. November, 2013, the cause

of action arose at Darbhanga where late Shri B.N.

Mishra was residing and receiving pension. The

earlier Writ Petition No.13955 of 2006 was filed on

different cause of action where the substantial

prayer was for refund of the amount illegally

deducted whereas Writ Petition No.5999 of 2014 was on

entirely different cause of action. Late Shri B.N.

Mishra was receiving pension at Darbhanga, which

pension having been stopped from November, 2013, the

cause of action arose within the territorial

jurisdiction of Patna High Court and learned Single

Judge as well as the Division Bench erred in

dismissing the writ petition relying on dismissal of

earlier writ petition whereas cause of action of both

the writ petitions were different and the Writ

Petition No. 5999 of 2014 could not have been

9 dismissed on the ground of lack of territorial

jurisdiction.

6. Learned counsel for the respondent Nos.1 to 3

submits that the writ petition had rightly been

dismissed on the ground of lack of territorial

jurisdiction. He submits that late Shri B.N. Mishra

after dismissal of the writ petition had filed writ

petition in the Jharkhand High Court, which writ

petition was still pending when he filed Writ

Petition No.5999 of 2014 and the writ petition could

not have been entertained by Patna High Court.

Learned counsel for the respondent Nos. 1 to 3 does

not dispute that part of cause of action arose in

territorial jurisdiction of Patna High Court,

however, he submits that on the principle of forum

conveniens, the writ petition could not have been

entertained at Patna and the writ petition ought to

have been prosecuted in the Jharkhand High Court.

7. Learned counsel for the respondent Nos. 5 and 8,

Shri Kaustubh Shukla submits that late Shri B.N.

Mishra had served in Eastern Coal Fields Ltd. at West

Bengal and had retired on 30.04.2005 from Burdwan, 10 West Bengal. It is submitted that Shri B.N. Mishra

having accepted the jurisdiction of the Jharkhand

High Court could not have filed writ petition at

Patna High Court. The husband of the appellant had

not opted for the Coal Mines Pension Scheme in 1998

but he opted for the Scheme second time in the year

2002 after subsequent notification dated 09.01.2002.

The deductions made by Regional Provident Fund

Commissioner was in accordance with Coal Mines

Pension Scheme, 1998. Earlier writ petition filed by

petitioner being Writ Petition No.13955 of 2006

having bene dismissed by the Patna High Court on the

ground of lack of territorial jurisdiction and no

appeal having been filed by Shri B.N. Mishra the said

judgment became final. Shri B.N. Mishra after

dismissal of his earlier writ petition filed Writ

Petition No.4930 of 2013 before the Jharkhand High

Court at Ranchi, which clearly proves that Shri B.N.

Mishra had accepted the jurisdiction of Jharkhand

High Court and pursued his writ petition there. The

mere fact that letters dated 07.10.2013 and

06.11.2013 were received at Darbhanga, the Patna High

11 Court shall have no territorial jurisdiction to

entertain the writ petition.

8. Learned counsel appearing for the respondent No.4

also adopted the above submissions.

9. Learned counsel for the parties have also placed

reliance on various judgments of this Court as well

as judgment of Patna High Court, which shall be

noticed while considering the submissions in detail.

10. From the submissions of the learned counsel for

the parties and the materials on record, the

following questions have arisen in this appeal:-

(i) Whether the writ petition filed by late Shri

B.N. Mishra being Writ Petition No. 5999 of

2014 is similar to Writ Petition No. 13955 of

2006 and the Patna High Court had territorial

jurisdiction to entertain the writ petition?

(ii) Whether part of cause of action for filing the

Writ Petition No. 5999 of 2014 arose within the

territorial jurisdiction of Patna High Court?

11. Both the questions being interrelated are being

12 taken together. We may first notice the relevant

pleadings in Writ Petition No. 5999 of 2014, which

are the material facts or integral facts for claiming

relief in the writ petition. In paragraph 5 of the

writ petition, petitioner had pleaded that he retired

on 30.04.2005 and thereafter settled at his native

place in Darbhanga District, State of Bihar where in

his savings account with State Bank of India,

Darbhanga his monthly pension is being paid since

May, 2005. In paragraphs 20 and 22, petitioner has

pleaded about the letter dated 07.10.2013 issued by

Regional Provident Fund Commissioner, Region-1,

Asansol and the letter dated 06.11.2013. Paragraphs

5, 20 and 22 are extracted below for ready

reference:-

“5. That the petitioner was subsequently promoted as Personnel Manager in Moira Colliery, Eastern Coal Fields Ltd., Bankola Area, P.O. Moira, Dist. – Burdwan from where he retired from service on 30/04/2005 and thereafter settled at his native village in Darbhanga Dist., Bihar where in his S/B A/C with State Bank of India, Darbhanga his monthly pension is being paid since May, 2005.

Copy of notice of Super-

annuation vide letter no.

ECL/C-5 (D) Superannuation/EE 1572 dated 23/24/11/2004 is annexed herewith and marked as 13 Annexure-1.

20. That upon receipt of a copy of writ petition from the learned Central Govt.

Counsel the Regional P.F. Commissioner, Region-1, Asansol issued a notice vide No. CPF/32/Legal/B.N. Mishra/R-1/ASN/3481 dated 7/10/2013 whereby he declared the payment of pension to the petitioner from May 2005 till date as wholly against the provisions of Para-15 of Coal Mines Pension Scheme 1998 which says that option once exercised shall be final and since the petitioner had firstly submitted a negative option so the subsequent submission of option in the affirmative is against the Scheme. Further the petitioner was also directed to refund the entire amount of pension amounting to Rs.8,01,334/- with interest paid to him from May 2005 to October 2013.

Furthermore, the pensioner was also informed vide the aforesaid notice that payment of pension to him shall be stopped from November, 2013.

Copy of letter no.

CPF/32/Legal/B.N. Mishra/R-

1/ASN/3481 dated 7/10/2013 along with relevant portion of Para-15 of CMPS 1998 is annexed herewith and marked as Annexure-12.

22. That the Regional P.F. Commissioner did not wait for a reply from the petitioner to the notice issued by him and instead in a haste issued letter No. CPF/32/1/Legal/B.N. Mishra/R-1/4056 dated 6/11/2013 whereby he stopped payment of pension to the petitioner from the month of Nov. 2013 and also directed him to refund the entire amount of pension paid to the petitioner from May 2005 to Oct. 14 2013 amounting to Rs.8,09,268/-.

Copy of letter no.

CPF/32/1/Legal/B.N. Mishra/R-

1/4056 dated 6/11/2013 is annexed herewith and marked as Annexure-14.”

12. The copy of the letters dated 07.10.2013 and

06.11.2013 were also annexed with the writ petition,

which were addressed to late Shri B.N. Mishra at his

address of Village Bhusakoul, Police Station

Darbhanga Sadar, District Darbhanga, State of Bihar.

Petitioner after receipt of the letter dated

07.10.2013 immediately represented on 07.11.2013.

There is no dispute between the parties that the

pension of late Shri B.N. Mishra was stopped from

November, 2013 and the Writ Petition No.5999 of 2014

was filed after stoppage of pension, which he was

getting for the last 08 years. Further by letter

dated 06.11.2013, petitioner was also directed to

return the amount of Rs.8,09,268/-, which was amount

of pension he received in his bank account in State

Bank of India, Darbhanga from May, 2005.

13. We may first notice the order of learned Single

15 Judge dismissing the writ petition on the ground of

lack of territorial jurisdiction dated 04.08.2017.

Paragraph 5 of the judgment gives reasons for

dismissing the writ petition. In paragraph 5, mainly

two reasons have been given by the learned Single

Judge for dismissing the writ petition; (i) Earlier

Writ Petition No.13955 of 2006 for grant of retiral

benefits was dismissed on 08.02.2013 on the ground of

lack of territorial jurisdiction. The petitioner did

not move in LPA or before the Supreme Court; and (ii)

When the petition of payment of retiral benefits is

pending before the Jharkhand High Court, the

petitioner should have filed the writ petition before

the same High court against the order of stoppage of

pension as the payment of pension is also a part of

retiral benefits.

14. In the LPA against the order of learned Single

Judge, Division Bench vide judgment dated 03.05.2018

after quoting paragraphs 4 and 5 of the judgment of

the learned Single Judge, Patna High Court observed

that:-

16

“We do not find any legal infirmity in the view so taken by the learned Single Judge. The appeal is dismissed.”

15. The learned Single Judge did not correctly

consider the facts and pleadings in Writ Petition

No.13955 of 2006 and Writ Petition No. 5999 of 2014.

The earlier writ petition filed by the petitioner in

the year 2006 was where petitioner had prayed for

refund of wrongly withheld/illegally detained amount

of Rs.1,33,559/-. When the earlier writ petition was

filed, there was no issue of non-payment of pension

or stoppage of pension since the pension had been

started w.e.f. May, 2005. The subsequent Writ

Petition No. 5999 of 2014 was filed when payment of

pension after 08 years was stopped and the petitioner

was directed to return the amount of Rs.8,09,268/-.

The cause of action for filing Writ Petition No.5999

of 2014 was entirely different. The learned Single

Judge committed error in holding that in view of

dismissal of the earlier writ petition on the ground

of lack of territorial jurisdiction, the Writ

Petition is also dismissed.

16. The second reason given by learned Single Judge 17 that petitioner ought to have filed the writ petition

before the Jharkhand High Court also does not commend

us. For a retiree, who is settled in Darbhanga and

receiving pension at District Darbhhanga, it cannot

be said that it was necessary for him to file his

petition in the Jharkhand High Court where his

earlier writ petition was pending. The subject

matter of the earlier writ petition was entirely

different and the dismissal of the writ petition does

not preclude the petitioner to file subsequent writ

petition in the same High Court.

17. The Division Bench of the High Court did not

advert to the facts or pleadings of the writ petition

and only after quoting paragraphs 4 and 5 of the

judgment of the learned Single Judge dismissed the

writ petition without adverting to any issue, which

was raised in the LPA by the writ petitioner. Copy

of the grounds of LPA No. 1265 of 2017 has been filed

as Annexure P-24, which indicate that petitioner has

clearly pleaded the relevant facts and specifically

stated that cause of action arisen in the year 2013

cannot be subject matter of writ petition filed 08 18 years ago in the year 2006. The main pleadings in

the writ petition were not dealt with by the High

Court and the High Court having dismissed the writ

petition on the ground of lack of territorial

jurisdiction, we need to advert as to whether there

was any cause of action for entertaining the writ

petition by Patna High Court.

18. Mulla on the Code of Civil Procedure while

commenting on Section 20 of the Civil Procedure Code

defined cause of action in following words:-

"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 suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact by which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court……………….”

19. P. Ramanatha Aiyar in Advanced Law Lexicon, 3rd

Edition, Volume 1, has defined the cause of action in

following words:-

“’Cause of action’ has been defined as meaning simply a factual situation the 19 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 the grievance founding the action, not merely the technical cause of action.”

20. Black’s Law Dictionary defines the cause of

action in following words:-

“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person…………”

21. This Court had occasion to consider the cause of

action in context of Article 266 of the Constitution

and has explained the expression “cause of action” in

large number of cases. We may refer to a Three Judge

Bench judgment of this Court in Oil and Natural Gas

Commission Vs. Utpal Kumar Basu and Ors., (1994) 4

SCC 711 where in paragraphs 5 and 6 following has

been laid down:-

“5. Clause (1) of Article 226 begins with a non obstante clause — notwithstanding

20 anything in Article 32 — and provides that every High Court shall have power “throughout the territories in relation to which it exercises jurisdiction”, to issue to any person or authority, including in appropriate cases, any Government, “within those territories” directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of

21 that Court. That is at best its case in the writ petition.

6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh [ILR (1889) 16 Cal 98, 102 : 15 IA 156] Lord Watson said:

“… the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.”

Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.

22 Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.”

22. This Court in Navinchandra N. Majithia Vs. State

of Maharashtra and Ors., (2000) 7 SCC 640 had

occasion to consider territorial jurisdiction of High

Court under Article 226(2). Dealing with

constitutional amendment made in Article 226(2), this

Court laid down following in paragraph 37:-

“37. The object of the amendment by inserting clause (2) in the article was to supersede the decision of the Supreme Court in Election Commission v. Saka Venkata Subba Rao [AIR 1953 SC 210] and to restore the view held by the High Courts in the decisions cited above. Thus the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “the cause of action, wholly or in part, arises” and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area 23 for reaching the writs issued by different High Courts.”

23. It was further held that the collocation of the

words “cause of action, wholly or in part, arises”

seems to have been lifted from Section 20 of the Code

of Civil Procedure. This Court also quoted the

definition of “cause of action” given by Lord Esher

in Read Vs. Brown in paragraph 39. In paragraphs 38,

39 and 41, following was laid down:-

“38. “Cause of action” is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words “cause of action, wholly or in part, arises” seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the “cause of action wholly or in part arises”. Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean “the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court”.

24 39. In Read v. Brown [(1888) 22 QBD 128 :

58 LJQB 120 : 60 LT 250 (CA)] Lord Esher, M.R., adopted the definition for the phrase “cause of action” that it meant

“every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved”.

41. Even in the context of Article 226(2) of the Constitution this Court adopted the same interpretation to the expression “cause of action, wholly or in part, arises” vide State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217] . A three-

Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu [(1994) 4 SCC 711] observed that it is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M.N. Venkatachaliah, C.J. and B.P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits 25 of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations. (SCC p. 722, para 12)

“If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.”

24. In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair

and Ors., (2004) 3 SCC 277, this Court explained the

expression “cause of action” and has quoted with

26 approval the cause of action as defined by Halsbury’s

Laws of England in paragraph 16 and 17:-

“16. 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 suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right 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 each fact, comprises in “cause of action”.

17. In Halsbury's Laws of England (4th Edn.) 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

27 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.”

25. Another judgment which needs to be noticed is

Kusum Ingots & Alloys Ltd. Vs. Union of India and

Anr., (2004) 6 SCC 254 wherein this Court reiterated

the meaning of cause of action in paragraph 6. This

Court reiterated that even if a small fraction of

cause of action accrues within the jurisdiction of

the Court, the Court will have jurisdiction in the

matter. In paragraph 18, following was held:-

“18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.”

26. Another judgment which has been relied by learned

counsel for the appellant is Nawal Kishore Sharma Vs.

Union of India and Ors., (2014) 9 SCC 329. In the

above case, the petitioner had filed a writ petition

seeking various reliefs including disability

28 compensation and pecuniary damages. The petitioner

approached the Patna High Court for grant of various

reliefs. Although, he was declared unqualified by

orders issued by the Shipping Department, Government

of India, Mumbai. This Court held that Patna High

Court has a jurisdiction to entertain the petition.

Following was laid down in paragraph 17:-

“17. We have perused the facts pleaded in the writ petition and the documents relied upon by the appellant. Indisputably, the appellant reported sickness on account of various ailments including difficulty in breathing. He was referred to hospital. Consequently, he was signed off for further medical treatment. Finally, the respondent permanently declared the appellant unfit for sea service due to dilated cardiomyopathy (heart muscle disease). As a result, the Shipping Department of the Government of India issued an Order on 12-4-2011 cancelling the registration of the appellant as a seaman. A copy of the letter was sent to the appellant at his native place in Bihar where he was staying after he was found medically unfit. It further appears that the appellant sent a representation from his home in the State of Bihar to the respondent claiming disability compensation. The said representation was replied by the respondent, which was addressed to him on his home address in Gaya, Bihar rejecting his claim for disability compensation. It is further evident that when the appellant was signed off and declared medically unfit, he returned back to his home in the district of Gaya, Bihar and, thereafter, he made 29 all claims and filed representation from his home address at Gaya and those letters and representations were entertained by the respondents and replied and a decision on those representations were communicated to him on his home address in Bihar. Admittedly, the appellant was suffering from serious heart muscle disease (dilated cardiomyopathy) and breathing problem which forced him to stay in his native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.”

27. Learned counsel for the appellant has also placed

reliance on a Division Bench judgment of Patna High

court in Saryu Singh Vs. The Union of India and Ors.,

2015(2) PLJR 256. The above was a case where the

petitioner had claimed the due pensionary benefits

whose grievance was that payment made to him was less

payment. In the above context, the Division Bench in

paragraphs 63, 64 and 66 laid down following:-

“63. Recently pointed out the Supreme Court, in Nawal Kishore Sharma v. Union of India, reported in (2014) 9 SCC 329, that the question, whether or not cause of action, wholly or in part, has arisen within the territorial limit of any High Court, shall have to be decided in the 30 light of the nature and character of the proceedings under Article 226 of the Constitution of India. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court's jurisdiction.

64. In the backdrop of the position of law, as discussed above, it needs to be noted that the writ petitioner was, admittedly, an employee of Coal India Limited and as per the terms and conditions of his employment, the writ petitioner, as an employee, is, admittedly, required to be paid his pension and pensionery benefits by his employer at Patna.

66. If, therefore, the writ petitioner is not paid the sum of money, which is due and payable to him as pension and pensionery benefits, at Patna, it becomes obvious that his right to receive due and payable pension and pensionery benefits, at Patna, is being denied; consequently the infringement of his right or his sufferance of injury is at Patna.”

28. The above judgment of the same High Court was

relevant in the facts of the present case, which

judgment although was delivered prior in time, but

was not noticed by the learned Single Judge as well

as the Division Bench.

29. Form the facts of the present case, we are of the

considered opinion that part of cause of action has 31 arisen within the territorial jurisdiction of Patna

High Court. The deceased petitioner was continuously

receiving pension for the last 08 years in his saving

bank account in State Bank of India, Darbhanga. The

stoppage of pension of late B.N. Mishra affected him

at his native place, he being deprived of the benefit

of pension which he was receiving from his employer.

The employer requires a retiring employee to indicate

the place where he shall receive pension after his

retirement. Late Shri B.N. Mishra had opted for

receiving his pension in State Bank of India,

Darbhabga, State of Bihar, which was his native

place, fromwhere he was drawing his pension regularly

for the last 08 years, stoppage of pension gave a

cause of action, which arose at the place where the

petitioner was continuously receiving the pension.

We, thus, are of the view that the view of the

learned Single Judge as well as the Division Bench

holding the writ petition not maintainable on the

ground of lack of territorial jurisdiction was

completely erroneous and has caused immense hardship

to the petitioner.

32

30. Another submission which has been advanced by

learned counsel for the respondent Nos. 1 to 3 is

that the writ petition was rightly dismissed on the

principle of forum non conveniens. Forum non

conveniens has been defined by P. Ramanatha Aiyar,

Advanced Law Lexicon, 3rd Edition in following words:-

“The principle that a case should be heard in a Court of the place where parties, witnesses, and evidence are primarily located.”

31. Black’s Law Dictionary defines forum conveniens

in following words:-

“The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses.”

32. This Court in Kusum Ingots & Alloys Ltd. (supra)

has also referred to principle of forum conveniens.

Following was stated in paragraph 30:-

“Forum conveniens

30. We must, however, remind ourselves that even if a small part of cause 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.

33 [See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670], Madanlal Jalan v. Madanlal [AIR 1949 Cal 495], Bharat Coking Coal Ltd. v. Jharia Talkies & Cold Storage (P) Ltd. [1997 CWN 122], S.S. Jain & Co. v. Union of India [(1994) 1 CHN 445] and New Horizons Ltd. v. Union of India [AIR 1994 Del 126].”

33. As noted above, the learned single Judge has also

observed that petitioner ought to have filed the writ

petition in Jharkhand High Court where his earlier

writ petition was pending. The earlier writ petition

which was initially filed in 2006 in Patna High Court

was for refund of the amount as noted above. After

dismissal of the writ petition by Patna High Court on

the ground of lack of territorial jurisdiction, Shri

B.N. Mishra had filed a Writ Petition No.4930 of 2013

in Jharkhand High Court for the relief which was

claimed in Writ Petition No.13955 of 2006. As noted

above, the cause of action for filing the Writ

Petition No. 5999 of 2014 was entirely different.

Stoppage of pension and asking for refund of more

than Rs. 08 lakhs amount had serious adverse effect

on the petitioner, who was staying at his native

place Darbhanga. A retired employee, who is

receiving pension, cannot be asked to go to another 34 court to file the writ petition, when he has a cause

of action for filing a writ petition in Patna High

Court. For a retired employee convenience is to

prosecute his case at the place where he belonged to

and was getting pension. The submission of the

learned counsel for the respondent Nos.1 to 3 on

principle of forum non conveniens has no substance.

34. In result, we allow the appeal, set aside the

judgment of the Patna High Court and hold that Writ

Petition No. 5999 of 2014 was fully maintainable at

Patna High Court and learned Single Judge and

Division Bench committed error in dismissing the writ

petition on the ground of lack of territorial

jurisdiction. The writ petition stands revived

before the Patna High Court.

35. We are also of the view that appellant is

entitled for an interim order in the writ petition

for her sustenance. The appellant’s husband, who had

filed the writ petition had died during the pendency

of the writ petition. After his death, the

appellant, the widow was substituted. Six years have

passed after filing of the writ petition wherein

35 stoppage of pension was questioned. Appellant being

the widow is also entitled for pensionary benefit for

her sustenance since her husband was receiving

pension. We are of the view that during the pendency

of the writ petition the appellant is entitled to be

paid provisional pension which shall be subject to

final decision in the writ petition. We, therefore,

direct respondent Nos.4 to 8 to ensure that

provisional pension to the appellant is paid from the

month of December, 2020, which shall be subject to

final orders passed in the writ petition. The appeal

is allowed accordingly.

......................J. ( ASHOK BHUSHAN )

......................J. ( R. SUBHASH REDDY )

......................J. ( M.R. SHAH ) New Delhi, November 05, 2020.

36