Territorial - Jurisdiction of the Pensioner - where he resides and where he draws his pension -
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
was dismissed by learned Single Judge on the ground
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 Superannuation 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/R1/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/R1/4056 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 threeJudge 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
